1
EXHIBIT 10.14
TW HOLDINGS, INC.
as Seller
SEATTLE-FIRST NATIONAL BANK,
as Purchaser,
SEATTLE-FIRST NATIONAL BANK,
as Agent, and
JELD-WEN, INC.,
as Master Servicer
$20,000,000
RECEIVABLES TRANSFER AGREEMENT
Dated as of December 1, 1993
2
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Defined Terms........................................................... -2-
Section 1.02. Usage of Terms.................................................................. -21-
Section 1.03. Accounting Term................................................................. -21-
ARTICLE TWO
THE COMMITMENT; TRANSFER OF RECEIVABLES
Section 2.01. The Commitment.................................................................. -21-
Section 2.02. Certain Purchase Procedures..................................................... -21-
Section 2.03. Extension of Commitment Termination Date........................................ -22-
Section 2.04. Conveyance of Receivables....................................................... -23-
Section 2.05. Custody of Receivable Files..................................................... -25-
Section 2.06. Duties of Master Servicer as Custodian.......................................... -26-
Section 2.07. Instructions; Authority to Act.................................................. -27-
Section 2.08. Indemnification by Master Servicer as
Custodian ................................................................... -27-
Section 2.09. Effective Period and Termination................................................ -28-
ARTICLE THREE
EARNED YIELD
Section 3.01. Earned Yield.................................................................... -28-
Section 3.02. Selection of Yield.............................................................. -28-
Section 3.03. Applicable Days For Computation of Yield........................................ -29-
Section 3.04. Unavailable LIBOR Rate.......................................................... -29-
Section 3.05. Yield Protection................................................................ -29-
Section 3.06. Funding Losses.................................................................. -31-
ARTICLE FOUR
COLLECTIONS AND SETTLEMENTS
Section 4.01. Collections..................................................................... -32-
Section 4.02. Reinvestments................................................................... -32-
Section 4.03. Settlement Procedures........................................................... -32-
Section 4.04. Deposits to Collection Account to Avoid
Break-Funding Costs ......................................................... -33-
Section 4.05. Deemed Collections.............................................................. -34-
Section 4.06. Allocation of Payments and Collections.......................................... -34-
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Section 4.07. Order of Distribution by the Agent.............................................. -35-
Section 4.08. Collection Account.............................................................. -35-
Section 4.09. Lock Boxes...................................................................... -36-
ARTICLE FIVE
FEES AND OTHER PAYMENTS
Section 5.01. Fees............................................................................ -37-
Section 5.02. Termination Event Rate Payments................................................. -37-
Section 5.03. Payments........................................................................ -37-
ARTICLE SIX
CONDITIONS OF PURCHASES
Section 6.01. Conditions to Initial Purchase.................................................. -38-
Section 6.02. Conditions to All Purchases..................................................... -40-
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES
Section 7.01. Representations and Warranties as to
the Seller .................................................................. -41-
Section 7.02. Representations and Warranties as to
the Receivables ............................................................. -44-
Section 7.03. Additional Representations and Warranties
as to the Mortgage Loan Receivables ......................................... -46-
Section 7.04. Repurchase Upon Breach; Optional Repurchase..................................... -50-
Section 7.05. Representations and Warranties as a Whole....................................... -51-
ARTICLE EIGHT
AFFIRMATIVE COVENANTS
Section 8.01. Affirmative Covenants of the Seller............................................. -51-
Section 8.02. Affirmative Covenants of JELD-WEN............................................... -54-
ARTICLE NINE
NEGATIVE COVENANTS
Section 9.01. Negative Covenants of the Seller................................................ -55-
Section 9.02. Negative Covenants of JELD-WEN.................................................. -56-
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ARTICLE TEN
SERVICING, ADMINISTRATION AND COLLECTIONS
Section 10.01. Designation of Master Servicer................................................. -57-
Section 10.02. Duties of the Master Servicer;
Subservicers ................................................................ -59-
Section 10.03. Collection Responsibilities; Receivable
Modifications ............................................................... -61-
Section 10.04. Maintenance of Insurance....................................................... -62-
Section 10.05. Assumption and Substitution Agreements......................................... -63-
Section 10.06. Realization upon Defaulted Receivables......................................... -64-
Section 10.07. Payment of Fees and Expenses of Agent;
No Offset ................................................................... -64-
Section 10.08. Servicing Fee.................................................................. -64-
Section 10.09. Representations and Warranties as to
the Master Servicer ......................................................... -65-
Section 10.10. Existence; Status as Master Servicer;
Merger ...................................................................... -66-
Section 10.11. Performance of obligations..................................................... -67-
Section 10.12. Liability of the Master Servicer;
Indemnities ................................................................. -67-
ARTICLE ELEVEN
TERMINATION EVENTS
Section 11.01. Termination Events............................................................. -68-
Section 11.02. Remedies....................................................................... -70-
ARTICLE TWELVE
THE AGENT
Section 12.01. Authorization and Action....................................................... -70-
Section 12.02. Duties and Obligations......................................................... -71-
Section 12.03. Dealings With the Seller....................................................... -72-
Section 12.04. Purchaser Credit Decision...................................................... -72-
Section 12.05. Right to Rely on Payments...................................................... -73-
Section 12.06. Limitations on Liability; Indemnification...................................... -73-
Section 12.07. Successor Agent................................................................ -74-
Section 12.08. Delegation of Duties........................................................... -75-
Section 12.09. Merger of Agent................................................................ -75-
ARTICLE THIRTEEN
ASSIGNMENTS AND PARTICIPATIONS
Section 13.01. Generally...................................................................... -75-
Section 13.02. Assignments.................................................................... -75-
Section 13.03. Participations................................................................. -76-
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ARTICLE FOURTEEN
SELLER INDEMNITIES
Section 14.01. Indemnities by the Seller...................................................... -77-
ARTICLE FIFTEEN
MISCELLANEOUS
Section 15.01. Repurchases for Administrative
Convenience ................................................................. -79-
Section 15.02. Substitution of Receivables.................................................... -79-
Section 15.03. No Waiver; Remedies Cumulative................................................. -80-
Section 15.04. Governing Law.................................................................. -80-
Section 15.05. Notices........................................................................ -80-
Section 15.06. Severability................................................................... -81-
Section 15.07. Entire Agreement; Amendment.................................................... -81-
Section 15.08. Submission to Jurisdiction; Etc................................................ -81-
Section 15.09. Waiver of Jury Trial........................................................... -82-
Section 15.10. Captions and Cross-References;
Incorporation by Reference .................................................. -82-
Section 15.11. Counterparts................................................................... -82-
Section 15.12. Confidentiality................................................................ -82-
Section 15.13. Oral Agreements Not Enforceable................................................ -83-
SCHEDULES
Schedule 1 - Credit and Collection Policy
(Right to Use Receivables) .................................................. S1-1
Schedule 2 - Credit and Collection Policy (Mortgage
Loan Receivables) ........................................................... S2-1
Schedule 3 - Schedule of Right to Use Receivables.............................................. S3-1
Schedule 4 - Schedule of Mortgage Loan Receivables............................................. S4-1
Schedule 5 - Location of Receivable Files...................................................... S5-1
EXHIBITS
Exhibit A Form of Purchase Notice ....................................................... A-1
Exhibit B Form of Purchase Certificate .................................................. B-1
Exhibit C Forms of Right to Use Receivables ............................................. C-1
Exhibit D Form of Mortgages and Mortgage Notes .......................................... D-1
Exhibit E Form of Settlement Statement .................................................. E-1
Exhibit F Form of Lock Box Notice ....................................................... F-1
Exhibit G Forms of Opinions of Counsel to the Seller .................................... G-1
Exhibit H Forms of Opinions of Counsel to TRI ........................................... H-1
Exhibit I Form of Opinion of Counsel to Eagle Crest ..................................... I-1
Exhibit J Forms of Opinions of Counsel to JELD-WEN ...................................... J-1
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RECEIVABLES TRANSFER AGREEMENT
This Receivables Transfer Agreement is made as of December 1, 1993,
among TW HOLDINGS, INC., a Nevada corporation (the "Seller"), Seattle-First
National Bank, a national banking association, and all other Purchasers
hereunder (collectively, the "Purchasers"), Seattle-First National Bank, a
national banking association, as agent for the Purchasers (in such capacity, the
"Agent"), and JELD-WEN, inc., an Oregon corporation ("JELD-WEN" or, in its
capacity as Master Servicer, the "Master Servicer").
RECITALS
WHEREAS, the Seller is in the business of purchasing from time to time
certain right to use timeshare receivables (the "Right to Use Receivables") from
Trendwest Resorts, Inc. ("TRI") and mortgage loan timeshare receivables (the
"Mortgage Loan Receivables" and, together with the Right to Use Receivables, the
"Receivables") from Eagle Crest Partners, Ltd. ("Eagle Crest" and, together with
TRI, the "Originators");
WHEREAS, the Seller has requested that the Purchasers provide financing
to enable the Seller to purchase Right to Use Receivables from TRI and Mortgage
Loan Receivables from Eagle Crest, and the Purchasers are willing to make funds
available for such purpose upon the terms and subject to the conditions
contained herein;
WHEREAS, as a result of the foregoing, the Seller has and will have
certain Receivables in which it intends to sell interests (the "Undivided
Interests"), which Undivided Interests shall be purchased by the Purchasers from
time to time upon the terms and subject to the conditions contained herein;
WHEREAS, certain of the collections relating to the Receivables and the
Undivided Interests may be reinvested in additional Receivables upon the terms
and subject to the conditions contained herein;
WHEREAS, the Seller has agreed to secure its obligations hereunder to
the Purchasers in connection with such sale by granting to the Agent (for the
benefit of the Purchasers) a first priority, perfected security interest in all
of the Receivables owned by it; and
WHEREAS, the Master Servicer has agreed to undertake certain
responsibilities relating to the servicing of the Receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
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ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Defined Terms. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Agent" means Seafirst, in its capacity as agent for the Purchasers
pursuant to this Agreement, and any successor agent appointed pursuant to
Section 12.07.
"Aggregate Net Investment" means, as of any date, the aggregate amount
of all Purchasers' Investments outstanding as of such date.
"Aggregate Net Investment Limit" means, as of any date, an amount equal
to the lesser of (i) the Commitment Amount or (ii) the sum of (a) 80% of the Net
Pool Balance and (b) amounts deposited in the Collection Account pursuant to
Section 4.04 and not yet disbursed to the Agent pursuant to Section 4.09.
"Aggregate Undivided Interest" means, as of any date, an undivided
floating fractional ownership interest (owned ratably by the Purchasers) in the
Receivables comprising the Receivables Pool, which shall be equal to a fraction,
the numerator of which is the sum of (i) Aggregate Net Investment and (ii) 25%
of the Aggregate Net Investment and the denominator of which is the Net Pool
Balance and which can, in no event, exceed 100%.
"Agreement" means this Agreement and all amendments hereof and
supplements hereto as shall exist from time to time.
"Assigned Collateral" means, as of any date, the Seller's (i) ownership
interest in (a) all of the Receivables comprising the Receivables Pool; (b) all
Related Security with respect to such Receivables; (c) all collections on or in
respect of such Receivables after the related Cutoff Dates; (d) all related
Receivable Documents; and (e) all proceeds of the foregoing, and (ii) interest
in (a) the Facility Documents and (b) all monies from time to time on deposit in
the Collection Account.
"Assignee Purchaser" shall have the meaning set forth in Section 13.02.
"Assignment" means an assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction in which a Mortgaged Property is located to reflect of record
the sale of the related Mortgage Note and Mortgage, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages and Mortgage Notes secured by
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Mortgaged Properties located in the same county, if permitted by applicable law
and acceptable for recording.
"Association" means the Eagle Crest Vacation Resort Owners Association,
the Eagle Crest Master Association, the Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxx,
xxx Xxxxx Xxxx Xxxxx Xxxxxxx Association and the Fairway Vista Estates
Association.
"Board of Governors" means the Board of Governors of the Federal
Reserve System, and any successor thereto.
"Business Day" means any day other than Saturday, Sunday or another day
on which banks are authorized or obligated to close in Seattle, Washington,
except that in connection with the selection of the LIBOR Rate or the
calculation of the LIBOR Rate for any Yield Period, "Business Day" means any day
other than Saturday or Sunday on which dealings in foreign currencies and
exchanges between banks may be carried on in London, England, New York, New York
and Seattle, Washington.
"Charge-off Rate" means, as of any Settlement Date, the average Monthly
Charge-off Rate for the three Collection Periods immediately preceding the
Collection Period in which such Settlement Date occurs.
"Closing Date" means December 30, 1993.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Percentage" means, as of any date, a fraction, expressed as
a percentage, the numerator of which is the Net Pool Balance and the denominator
is the Aggregate Net Investment.
"Collected Interest" means all Collections other than Collected
Principal and Miscellaneous Payments.
"Collected Principal" means that portion of Collections allocable to
principal on the Receivables.
"Collection Account" means the account or accounts designated as such
and established and maintained pursuant to Section 4.08.
"Collection Period" means, in the case of (i) the first Settlement
Date, the period of time from the Closing Date to and including the last day of
the month immediately preceding the month in which such Settlement Date occurs
and (ii) any Settlement Date other than the first Settlement Date, the month
immediately preceding the month in which such Settlement Date occurs.
"Collections" means all funds which either (i) are received by the
Seller or the Master Servicer on or after the related Cutoff Date on or in
respect of the Receivables and the other Assigned Collateral or (ii) are deemed
to have been received as Collections pursuant to Section 4.05.
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"Commitment" means the several obligations of the Purchasers to make
Purchases pursuant to this Agreement.
"Commitment Amount" means $20,000,000.
"Commitment Fee" means the fee payable in arrears by the Seller to the
Agent pursuant to Section 5.01 in respect of each day from the Closing Date
until the Commitment Termination Date in an amount equal to the product of (i)
0.25%, (ii) the excess, if any, of (a) the Commitment Amount on such day over
(b) the Aggregate Net Investment on such day and (iii) 1/360. Notwithstanding
the foregoing, if a Facility Increase Event has not occurred on or prior to
March 31, 1994, the Commitment Fee in respect of each day after March 31, 1994
will be calculated using 0.375% in clause (i).
"Commitment Termination Date" means February 1, 1995, as such date may
be extended pursuant to Section 2.03.
"Composer" means Composer Corporation, an Oregon corporation, and any
successor thereto.
"Consolidated Defaulted Receivable Amount" means, as of any Settlement
Date, a fraction, expressed as a percentage, the numerator of which is equal to
the sum of (i) the Outstanding Principal Balance of all Receivables included in
the Receivables Pool that were Defaulted Receivables and (ii) the outstanding
principal balance of all Originator Receivables that would be Defaulted
Receivables pursuant to the definition thereof, in each case as of the last day
of the related Collection Period, and the denominator of which is equal to the
sum of (i) the Outstanding Principal Balance of all Receivables included in the
Receivables Pool and (ii) the outstanding principal balance of all Originator
Receivables, in each case as of the last day of such Collection Period.
"Consolidated Delinquency Rate Amount" means, as of any Settlement
Date, a fraction, expressed as a percentage, the numerator of which is equal to
the sum of (i) the Outstanding Principal Balance of all Receivables included in
the Receivables Pool in respect of which a payment of Monthly P&I was more than
30 days past due and (ii) the outstanding principal balance of all Originator
Receivables in respect of which a scheduled monthly payment was more than 30
days past due, in each case as of the last day of the related Collection Period,
and the denominator of which is equal to the sum of (i) the Outstanding
Principal Balance of all Receivables included in the Receivables Pool and (ii)
the outstanding principal balance of all Originator Receivables, in each case as
of the 1st day of such Collection Period.
"Consolidated Monthly Charge-off Rate" means, in respect of any
Collection Period, a fraction, expressed as a percentage on a per annum basis,
the numerator of which is the sum of (i) the Outstanding Principal Balances of
all Receivables included in the Receivables Pool that were charged-off and (ii)
the outstanding
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principal balances of all originator Receivables that were charged-off, in each
case during such Collection Period, and the denominator of which is the sum of
(i) the average Outstanding Principal Balances of all Receivables included in
the Receivables Pool and (ii) the average outstanding principal balances of all
Originator Receivables, in each case for each day in such Collection Period.
"Credit and Collection Policy" means those credit and collection
policies described on Schedules 1 and 2 hereto, as the same may be modified from
time to time in accordance with this Agreement.
"Cutoff Date" means, with respect to a Receivable, the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be.
"Defaulted Receivable" means any Receivable comprising part of the
Receivables Pool (i) in respect of which the related Obligor has failed to pay
when due any amounts due in respect thereof which failure continues for 90 days
or more; (ii) in respect of which the Obligor has failed to perform any term or
covenant on its part to be performed under any related Receivable Document which
failure continues for 90 days or more, if the effect of such failure is to
accelerate or to permit (with or without the giving of notice) the acceleration
of the maturity of such Receivable or, if such Receivable is a Mortgage Loan
Receivable, the related Mortgage Note; (iii) in respect of which the related
Obligor is the subject of a petition in bankruptcy, either voluntary or
involuntary, or in any other proceeding under the federal bankruptcy laws or
makes an assignment for the benefit of creditors; (iv) in respect of which
liquidation or foreclosure proceedings relating to all or any part of the
Related Security have begun; or (v) in respect of which the Master Servicer has
determined, in accordance with the procedures and standards set forth in this
Agreement and in the related Credit and Collection Policy, that eventual payment
in full is unlikely.
"Defaulted Receivable Amount" means, as of any Settlement Date, a
fraction, expressed as a percentage, the numerator of which is equal to the
Outstanding Principal Balance of all Receivables included in the Receivables
Pool that were Defaulted Receivables as of the last day of the related
Collection Period and the denominator of which is equal to the Outstanding
Principal Balance of all Receivables included in the Receivables Pool as of the
last day of such Collection Period.
"Defective Receivable" means any Receivable required to be repurchased
by the Seller pursuant to Section 7.04.
"Delinquency Rate Amount" means, as of any Settlement Date, a fraction,
expressed as a percentage, the numerator of which is equal to the Outstanding
Principal Balance of all Receivables included in the Receivables Pool in respect
of which a payment of Monthly P&I was more than 30 days past due as of the last
day of
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the related Collection Period and the denominator of which is equal to the
Outstanding Principal Balance of all Receivables (other than Defaulted
Receivables) included in the Receivables Pool as of the last day of such
Collection Period.
"Dollar" or "$" means the currency of the United States.
"Due Date" means, with respect to any Receivable, the date upon which
installments of Monthly P&I are required to be paid pursuant to such Receivable
or, if such Receivable is a Mortgage Loan Receivable, pursuant to the related
Mortgage Note, in each case after giving effect to any grace period permitted by
such Receivable or Mortgage Note.
"Eagle Crest" means Eagle Crest Partners, Ltd., an Oregon limited
partnership, and any successor thereto.
"Eagle Crest Master Association" means a non-profit corporation
organized under the laws of the State of Oregon having its principal place of
business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, which corporation
owns and operates the common improvements and facilities for the benefit of all
owners of the Mortgaged Properties.
"Eagle Crest Purchase Agreement" means the Receivables Purchase
Agreement, dated as of the date hereof, between Eagle Crest and the Seller, and
all amendments thereof and supplements thereto as shall exist from time to time.
"Eagle Crest Vacation Resort Owners Association" means a non-profit
corporation organized under the laws of the State of Oregon having its principal
place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, which
corporation owns and operates the facilities identified for the use and benefit
of the owners of the Timeshare Estates.
"Eagle Crest Subordinated Note" means the subordinated non-recourse
promissory note of the Seller to Eagle Crest, dated the Closing Date, and all
amendments thereof and supplements thereto as shall exist from time to time.
"Earned Yield" shall have the meaning set forth in Section 3.01.
"Eligible Assignee" means a commercial bank or other financial
institution formed under the laws of any OECD Country.
"Eligible Receivable" means, as of any date, a Receivable that is
either a Right to Use Receivable or a Mortgage Loan Receivable and:
(i) as to which no portion of any payment of Monthly P&I is more
than 30 days delinquent and no portion of any
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payment of Monthly P&I has ever been more than 30 days delinquent;
(ii) is not a Defaulted Receivable;
(iii) in respect of which at the time when such Receivable became
an Eligible Receivable, four months had elapsed since the related
Origination Date;
(iv) which either constitutes chattel paper under the Nevada UCC
or, if such Receivable is a Mortgage Loan Receivable, the related
Mortgage Note constitutes an instrument under the UCC in effect in the
state in which the related Mortgaged Property is located;
(v) as to which, at the time of (a) its conveyance to the
Seller and (b) as of such date, the related originator or the Seller,
as the case may be, has or will have good and marketable title thereto
free and clear of all Liens other than (1) the Lien in favor of the
Agent for the benefit of the Purchasers created pursuant to this
Agreement, (2) if such Receivable is a Mortgage Loan Receivable, other
than Permitted Encumbrances on the related Mortgaged Property and (3)
if such Receivable is a Right to Use Receivable, other than Liens of
Worldmark;
(vi) as to which a first priority security interest in favor of
the Agent for the benefit of the Purchasers has been perfected (and, if
such Receivable is a Mortgage Loan Receivable, a first priority
security interest in the related Mortgage and Mortgage Note has been so
perfected) and
(vii) as to which no Lien exists that is on a parity with the
security interests described in clause (vi) above other than Permitted
Encumbrances on the related Mortgaged Property in the case of a
Mortgage Loan Receivable and Liens in favor of WorldMark in the case of
a Right to Use Receivable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Eurodollar Rate" means, with respect to any Yield Period, (i) the
British Bankers' Association interest settlement rate at 11:00 a.m., London
time, on the day that is two Business Days prior to the first date of such Yield
Period, as reported on page 3750 of Telerate Systems, Inc. (or its successor
publication) (or such other page as may replace page 3750 in that service for
the purpose of displaying London interbank offer rates of major banks) under the
U.S. Dollar column, (ii) or the offered rate for U.S. Dollar deposits as
reported on the Reuters Monitor Money Rates Service and (iii) if no such rate is
available as described in clauses (i) or (ii) , the arithmetic mean of the
quotations of the rates at which deposits in U.S. Dollars are offered in the
London interbank market by three Reference Banks selected by the Agent and to
which a
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request was made to the principal London office for a quotation of such rate at
approximately 11:00 a.m., London time, on the day that is two Business Days
prior to the first date of such Yield Period to prime banks in the London
interbank market for such Yield Period.
"Eurodollar Reserves" means a fraction (expressed as a four digit
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the minimum reserve percentages
(including, without limitation, any special, supplemental, marginal or emergency
reserves), expressed as a four digit decimal, established by the Board of
Governors or any other banking authority to which the Purchasers are subject for
Eurocurrency Liability (as such term is defined in Regulation D). For all
purposes of this Agreement, Eurodollar Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage and
shall apply to all Yield Periods commencing after the effective date of such
change.
"Facility Documents" means this Agreement, the Purchase Agreements,
each Subservicing Agreement, if any, and all reports, statements, financing
statements, instruments and other documents delivered in connection herewith or
therewith or in connection with the transactions contemplated hereby or thereby.
"Facility Increase Date" means the date on which a Facility Increase
Event occurs.
"Facility Increase Event" means an increase in the Commitment Amount up
to at least $50,000,000 due to the addition of one or more new Purchasers.
"Fairway Vista Estates Association" means a non-profit corporation
organized under the laws of the State of Oregon having its principal place of
business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, which corporation
owns and operates the facilities identified for the use and benefit of certain
owners of the Fractional Ownership Interests.
"Federal Funds Rate" means, with respect to any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates displayed on such days as the federal funds effective rate
on the display page designed as "Page 120" on the Dow Xxxxx Telerate Service (or
such other page as may replace that page on that service, or such other service
as may be designated as the information source by Agent for the purpose of
determining the daily effective federal funds rate for federal funds
transactions between members of the Federal Reserve System).
"Fee Letter" means that certain letter, dated the Closing Date, from
the Agent to the Seller, and all amendments thereof and supplements thereto as
shall exist from time to time.
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"Filing Assets" means, with respect to any Receivable acquired by the
Seller after the Closing Date, (i) such Receivable; (ii) all Related Security
with respect to such Receivable; (iii) all Collections with respect to such
Receivable; (iv) all related Receivable Documents; (v) the Seller's rights under
the related Purchase Agreement; and (vi) all proceeds of the foregoing.
"FIRREA" means the Financial Institution Reform, Recovery, and
Enforcement Act of 1989, as amended.
"Fractional Ownership Interest" means a fee simple ownership interest
in common with other owners in a single-family residential home or townhouse
entitling the owner thereof to the exclusive use of such home or townhouse for
five or ten weeks, together with access to the accompanying facilities of the
Project.
"Governmental Authority" means the government of the United States or
any state, county or municipality or any foreign country or any political
subdivision of any of the foregoing or any branch, department, agency,
instrumentality, court, tribunal or regulatory authority which constitutes a
part or exercises any sovereign power of any of the foregoing.
"I&I Holdings" means I&I HOLDINGS, LTD., a Nevada corporation and a
wholly owned subsidiary of JELD-WEN, and any successor thereto.
"Indebtedness" means, with respect to the Seller, all (i) obligations
for borrowed money (other than the Subordinated Notes); (ii) obligations
representing the deferred purchase price of property other than accounts
receivable or accounts payable arising in the ordinary course of the business of
the Seller on terms customary in the trade; (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
property now or hereafter owned or acquired by the Seller; (iv) obligations
which are evidenced by notes, acceptances or other instruments; (v) obligations
under leases which would be capitalized on the balance sheet of the Seller
prepared in accordance with generally accepted accounting principles; and (vi)
obligations for which the Seller is obligated pursuant to a guarantee.
"Indemnified Amounts" shall have the meaning specified in Section
14.01.
"Indemnified Parties" shall have the meaning specified in Section
14.01.
"Independent Director" means a director of the Seller who is not (i) a
director, officer or employee of any affiliate of the Seller; (ii) an individual
related to any officer or director of any affiliate of the Seller; (iii) a
holder (directly or indirectly) of any voting securities of any affiliate of the
Seller; or (iv) an individual related to a holder (directly or
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indirectly) of any voting securities of any affiliate of the Seller.
"Initial Cutoff Date" means December 22, 1993.
"Initial Receivables" means the Receivables comprising the Receivables
Pool as of the Closing Date.
"Interest Rate Cap Date" means the second consecutive Settlement Date
in respect of which the difference between (i) the weighted average Receivable
Interest Rate of the Receivables comprising the Receivables Pool during the
related Collection Period and (ii) 30-day LIBOR, is less than or equal to 8%.
"Interest Rate Protection" means a transaction governed by an ISDA
Master Agreement pursuant to which a counterparty will ensure for a three year
period commencing on the related Interest Rate Cap Date, on an amount at least
equal to 60% of the Aggregate Net Investment as of such Interest Rate Cap Date,
the 30-day Eurodollar Rate will be less than or equal to the sum of (i) the
30-day Eurodollar Rate in effect on such Interest Rate Cap Date and (ii) 4%.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"IRS" means the Internal Revenue Service, and any successor thereto.
"JELD-WEN" means JELD-WEN, inc., an Oregon corporation, and any
successor thereto.
"JELD-WEN Agreement means that certain credit agreement dated as of
June 11, 1992 among JELD-WEN, The Bank of Tokyo, Ltd., acting through its
Seattle branch, Seattle-First National Bank and the other banks listed on
Schedule 1 thereto, as lenders, and Seattle-First National Bank, as agent for
the lenders, and all amendments thereof and supplements thereto as shall exist
from time to time.
"LIBOR Rate" means, with respect to any Tranche for any Yield Period,
an interest rate per annum equal to the sum of (i) the Margin and (ii) the
product of (a) the Eurodollar Rate in effect for such Yield Period and (b) the
Eurodollar Reserves in effect on the first day of such Yield Period. For all
purposes of this Agreement, each Tranche accruing a yield at the LIBOR Rate
shall be deemed to constitute a Eurocurrency Liability and to be subject to the
reserve requirements of Regulation D, without benefit of credit or proration,
exemptions or offsets which might otherwise be available to the Purchasers from
time to time under Regulation D.
"Lien" means, with respect to any Person, any security interest, lien,
charge, claim, pledge, equity or encumbrance of any kind upon or affecting the
revenues of such Person or any real or personal property in which such Person
has or hereafter acquires
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any interest, other than Tax liens, mechanics' liens and any liens that attach
by operation of law.
"Liquidation Expenses" means, with respect to the liquidation of any
Defaulted Receivable, all reasonable out-of-pocket expenses (including all
reasonable sales and marketing expenses, but not including overhead) incurred by
the Master Servicer in connection with such liquidation.
"Liquidation Proceeds" means, with respect to the liquidation of any
Defaulted Receivable, amounts actually received in connection with such
liquidation.
"Loan Notice" shall have the meaning set forth in Section 2.03(a).
"Lock Box" means each post office box or bank box to be included in the
Lock Box Network as to which the Seller has notified the Agent that Collections
will be remitted to pursuant to Section 4.09 following a Termination Event.
"Lock Box Account" means each account maintained by the Seller as a
part of the Lock Box Network and (i) as to which the Seller has notified the
Agent that Collections will be deposited therein and (ii) with respect of which
the Agent shall have received an undated executed copy of a Lock Box Notice
addressed to the related Lock Box Bank.
"Lock Box Agreement" means each agreement between the Seller and a Lock
Box Bank relating to a Lock Box and a Lock Box Account, which agreement shall be
in form and substance satisfactory to the Agent.
"Lock Box Bank" means each of the banks or depository institutions
added as a lock box bank pursuant to Section 4.09.
"Lock Box Network" means one or more post office boxes and/or bank
boxes and accounts maintained BY the Seller for the sole purpose of receiving
Collections and in connection with which a collecting bank is exclusively
authorized and directed to collect and process mail and Collections remitted to
each such post office box or bank box and to deposit such Collections into the
Collection Account, directly or through a Lock Box Account.
"Lock Box Notice" means, with respect to each Lock Box and Lock Box
Account, a letter in substantially the form of Exhibit F hereto from the Seller
to each Lock Box Bank.
"Margin" means, in the case of any Yield Period (or portion thereof)
1.50%, except that the Margin in the case of any Yield Period (or portion
thereof) (i) after March 31, 1994 will be 2.00% if no Facility Increase Event
has occurred on or prior to Xxxxx 00, 0000, (xx) after the Commitment
Termination Date, provided that no Notice Date has occurred, 2.00% and (iii)
after the Commitment
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Termination Date, provided that (a) no Notice Date has occurred and (b) no
Facility Increase Event has occurred, 2.50%.
"Master Servicer" means JELD-WEN, in its capacity as Master Servicer
hereunder, and any successor Master Servicer designated by the Agent pursuant to
Section 10.01, including any Person assuming the duties of the Master Servicer
under Article Ten after being designated in a Successor Notice.
"Maturing Tranches" shall mean, as of any Settlement Date, those
Tranches for which such Settlement Date is the last day of the applicable
Payment Period.
"Miscellaneous Payments" means, with respect to any Receivable, any
amounts received from or on behalf of the related obligor representing
assessments and payments relating to real property taxes, insurance premiums,
transfer fees, late fees and service charges, annual dues payable to WorldMark
and condominium or homeowners' association fees.
"Monthly Charge-off Rate" means, in respect of any Collection Period, a
fraction, expressed as a percentage on a per annum basis, the numerator of which
is the Outstanding Principal Balances of all Receivables included in the
Receivables Pool that were charged-off by the Seller during such Collection
Period and the denominator of which is the average Outstanding Principal
Balances of all Receivables included in the Receivables Pool for each day in
such Collection Period.
"Monthly P&I" means, with respect to any Receivable, the scheduled
payment of principal and interest due in each Collection Period pursuant to the
related Receivable (which payment, if such Receivable is a Mortgage Loan
Receivable, is set forth in the related Mortgage Note).
"Mortgage" means the mortgage, deed of trust or other instrument
creating a first lien on the Mortgaged Property securing a Mortgage Note, forms
of which are attached hereto as Exhibit D.
"Mortgage Loan Receivables" means such of the mortgage loans originated
by Eagle Crest, acquired by the Seller and included in the Receivables Pool,
which mortgage loans are identified in the Schedule of Mortgage Loan
Receivables.
"Mortgage Note" means the promissory note or other evidence of
indebtedness executed by an Obligor that evidences the indebtedness of such
Obligor under a Mortgage Loan Receivable, forms of which are attached hereto as
Exhibit D.
"Mortgaged Property" means the property securing a Mortgage Note, which
may be either a Timeshare Estate or a Fractional Ownership Interest consisting
of a fee simple estate in real property located at the Project.
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"Net Pool Balance" means, as of any date, the aggregate Outstanding
Principal Balance of all Eligible Receivables included in the Receivables Pool
as of such date.
"Net Worth" means an amount equal to the tangible shareholders' equity
of the Seller as defined in accordance with generally accepted accounting
principles minus the fair market value of any securities owned by it prior to
the Closing Date (other than investment of monies on deposit in the Collection
Account).
"New Lock Box Accounts" shall have the meaning specified in Section
4.09.
"New Lock Boxes" shall have the meaning specified in Section 4.09.
"Notice Date" means the day on which the Agent, pursuant to Section
11.02, delivers or is deemed to have delivered to the Seller a notice of the
occurrence of a Termination Event and declaration that the Commitment is
terminated and all Obligations are due and payable (from Collections or
otherwise).
"Obligations" means (i) all obligations of the Seller to the Agent, the
Purchasers and their respective successors, permitted transferees and assigns
arising under or in connection with the Facility Documents, and (ii) all
obligations of the Seller to any Indemnified Party arising under Section 14.01,
in each case however created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due.
"Obligor" means any Person obligated to make payments on or in respect
of a Receivable, whether as a direct obligor or as a guarantor thereof.
"OECD Country" means a country which is a member of the grouping of
countries that are full members of the Organization of Economic Cooperation and
Development, plus countries that have concluded special lending arrangements
with the International Monetary Fund associated with its General Arrangements to
Borrow.
"Officer's Certificate" means a certificate signed by the president,
any vice president, the treasurer, the assistant treasurer, the secretary or the
assistant secretary of the Seller or the Master Servicer, as the case may be,
and delivered to the Agent.
"Original Principal Balance" means, with respect to any Receivable, the
amount set forth in such Receivable or, in the case of a Mortgage Loan
Receivable, on the related Mortgage Note, as the original principal balance of
such Receivable.
"Origination Date" means, with respect to any Receivable, the date
specified as the Origination Date on the related Schedule of
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Receivables, such date being represented to be (i) in the case of a Mortgage
Loan Receivable, the date on which the related Mortgage was recorded in the
public records in the jurisdiction in which the related Mortgaged Property is
located and (ii) in the case of a Right to Use Receivables, the date of
origination of such Right to Use Receivable.
"Originator" means TRI or Eagle Crest, as the case may be.
"Originator Receivables" means, as of any time, all right to use
timeshare receivables and mortgage loan timeshare receivables originated by the
related Originator, other than the Receivables, that have not been paid in full
or charged off.
"Outstanding Principal Balance" means, with respect to any Receivable
as of any date, its Original Principal Balance less all payments received on or
in respect of such Receivable on or prior to such date and allocable to
principal.
"Participant" shall have the meaning set forth in Section 13.03.
"Payment Period" means (i) for any Tranche for which the Earned Yield
is calculated at the LIBOR Rate, the Yield Period provided, however, that if a
Notice Date shall occur prior to the end of such Yield Period, the Payment
Period for such Tranche shall end on the Settlement Date next succeeding such
Notice Date; (ii) for any Tranche for which the Earned Yield is calculated at
the Reference Rate, that period commencing on the next day after the last day of
the immediately preceding Payment Period for such Tranche (or applicable portion
thereof), or if there has been no such preceding Payment Period, the date the
Purchasers' Investment in such Tranche was initially made by the Purchasers and,
in either case, continuing through and including the next succeeding Settlement
Date; and (iii) for any Tranche for which the Earned Yield is calculated at the
Termination Event Rate, that period commencing on (a) the next day after the
last day of the immediately preceding Payment Period for such Tranche (or
applicable portion thereof), or if there has been no such preceding Payment
Period, (b) the date the Purchasers' Investment in such Tranche (or applicable
portion thereof) was initially made by the Purchasers and, in either case,
continuing through and including the immediately succeeding Settlement Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to any Mortgaged Property,
(i) all Liens and encumbrances identified in the related Mortgage and (ii) all
other mortgages, deeds of trust or other security instruments on such Mortgaged
Property to the extent that such mortgages, deeds of trust or other security
instruments and the related promissory note or other evidence of indebtedness
are substantially similar to the Mortgages and Mortgage Notes,
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respectively, and relate to mortgage loan timeshare receivables substantially
similar to the Mortgage Loan Receivables.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Portfolio Yield" means, as of any Settlement Date, the difference
between (i) the product of (a) the amount of Collected Interest collected during
the related Collection Period and (b) the Purchasers' Interest for such
Collection Period, and (ii) the sum of (a) the Earned Yield in respect of such
Collection Period, whether or not paid and (b) the product of (1) the
Purchasers' Interest for such Collection Period and (2) the sum of the Servicing
Fee payable in respect of such Collection Period, the Outstanding Principal
Balance of all Receivables that were charged-off by the Seller during such
Collection Period and the Program Costs in respect of such Collection Period,
whether or not paid.
"Pro Rata Share" shall mean for each Purchaser the percentage set forth
opposite its name below.
Purchaser Pro Rata Share
--------- --------------
Seattle-First National Bank 100%
"Program Costs" means, in respect of any Collection Period, all
expenses and fees of the Seller payable during such Collection Period (other
than the Servicing Fee and Earned Yield), including but not limited to, fees
payable pursuant to Section 5.01.
"Project" means the respective land, buildings and appurtenant rights
which comprise the Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx, within which each
Mortgaged Property is located.
"Purchase" means any purchase by the Purchasers of an Undivided
Interest from the Seller and includes, without limitation, Reinvestments.
"Purchase Agreements" means the Eagle Crest Purchase Agreement and the
TRI Purchase Agreement.
"Purchase Certificate" shall have the meaning set forth in Section
6.02(c).
"Purchase Notice" shall have the meaning set forth in Section 2.02(a).
"Purchase Price" means, with respect to any Defective Receivable, an
amount equal to the Outstanding Principal Balance of such Receivable as of the
last day of the Collection Period immediately preceding the Collection Period in
which such
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Receivable is being repurchased, together with interest thereon at the
applicable Receivable Interest Rate from the end of such immediately preceding
Collection Period through the current Collection Period.
"Purchase and Sale Agreement" means, with respect to any Mortgage Loan
Receivable, the related Eagle Crest Vacation Resort Ownership Purchase and Sale
Agreement, Escrow Instructions and Buyer's Receipt for Documents.
"Purchasers" means each of the Persons identified as a "Purchaser" in
the preamble to this Agreement and any of their respective successors.
"Purchasers' Interest" means, in respect of any Collection Period, a
fraction, the numerator of which is the average Aggregate Net Investment for
each day in such Collection Period and the denominator of which is the average
Outstanding Principal Balance of the Receivables comprising the Receivables Pool
for each day in such Collection Period.
"Purchasers' Investment" in any Undivided Interest means an amount
equal to the original amount paid to the Seller for such Undivided Interest at
the time of its initial acquisition by the Purchasers, as such amount may be
reduced from time to time by Collections received and distributed pursuant to
Sections 4.03 and 4.07. The Purchasers' Investment shall not be considered
reduced by any distribution of any portion of Collections if at any time such
distribution is rescinded or otherwise must be returned for any reason nor shall
the Purchasers' Investment be reduced or increased by any Reinvestment.
"Purchasers' Share" of any Collections means, (i) on any day on or
before the Commitment Termination Date, if no Notice Date shall have occurred,
the product of such amount and the Aggregate Undivided Interest on such day
(expressed as a percentage); (ii) on any day after the Commitment Termination
Date, if no Notice Date shall have occurred on or before the Commitment
Termination Date, the product of such amount and the Aggregate Undivided
Interest (expressed as a percentage) calculated as of the Commitment Termination
Date; and (iii) if a Notice Date shall have occurred on or before the Commitment
Termination Date, the product of such amount and the Aggregate Undivided
Interest (expressed as a percentage) calculated as of such Notice Date.
"Receivable Documents" means, with respect to any Receivable, all loan
agreements, security agreements, guarantees, pledges, mortgages, deeds of trust,
financing statements, certificates, instruments, agreements and other related
documents executed in connection with such Receivable (including, if such
Receivable is a Mortgage Loan Receivable, the related Mortgage, Mortgage Note
and Warranty Deed) or in connection with the Related Security.
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"Receivable Files" means the documents in respect of the Receivables
specified in Section 2.05.
"Receivable Interest Rate" means, with respect to a Receivable, the per
annum rate of interest or finance charge borne by such Receivable.
"Receivables" means the Right to Use Receivables and the Mortgage Loan
Receivables included in the Receivables Pool, and all proceeds thereof and
payments thereunder on and after the related Cutoff Date, which Receivables are
identified in the related Schedule of Receivables. Once so designated, a
Receivable shall continue to be a Receivable for all purposes hereunder until
(i) its Outstanding Principal Balance has been reduced to zero, (ii) the Seller
repurchases such Receivable pursuant to Section 7.04 or 15.01 or (iii) the
Seller substitutes a new Receivable for such Receivable therefor pursuant to
Section 15.02.
"Receivables Pool" means at any time all Receivables outstanding at
such time.
"Reference Bank" means a major bank selected from time to time by the
Agent that is active in the London interbank market.
"Reference Rate" means on any day the greater of (i) Seafirst's
publicly announced prime rate of interest (which prime rate is a reference rate
and not necessarily the lowest rate of interest at which Seafirst will make a
loan), as such prime rate changes from time to time (which changes shall become
effective concurrently with the announcement of such change by Seafirst) or (ii)
the sum of (a) the Federal Funds Rate and (b) 0.50% per annum.
"Regulation D" means Regulation D promulgated by the Board of Governors
of the Federal Reserve System, as amended.
"Reinvestment" means any Purchase made pursuant to Section 4.02.
"Related Security" means, with respect to any Receivable, all security,
guarantees and other collateral securing the obligations of the related obligor
under such Receivable, including, if such Receivable is a Mortgage Loan
Receivable, the related Mortgaged Property.
"Required Purchasers" means at any time Purchasers having an aggregate
Purchasers' Investment of at least 662/3%.
"Right to Use Receivable" means such of the right to use receivables
originated by TRI, acquired by the Seller and included in the Receivables Pool,
forms of which are attached hereto as Exhibit C, which right to use receivables
are identified in the Right to Use Receivables Schedule.
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"River View Vista Estates Association" means a non-profit corporation
organized under the laws of the State of Oregon having its principal place of
business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, which corporation
owns and operates the facilities identified for the use and benefit of certain
owners of the Fractional Ownership Interests.
"Schedule of Mortgage Loan Receivables" means the schedule of Mortgage
Loan Receivables attached hereto as Schedule 4, as the same may be amended from
time to time. The Mortgage Loan Receivable Schedule shall set forth the
following information as to each Mortgage Loan Receivable: (i) its identifying
number; (ii) the name of and the mailing address for the related obligor; (iii)
the street address of the related Mortgaged Property; (iv) the original number
of months to maturity; (v) the number of months to maturity as of the related
Cutoff Date; (vi) the Origination Date; (vii) its Receivable Interest Rate;
(viii) its Due Date; (ix) its Original Principal Balance; (x) its Outstanding
Principal Balance as of the related Cutoff Date; (xi) whether the related
Mortgaged Property is a Fractional ownership Interest or a Timeshare Estate; and
(xii) the address at which the related Receivable File is maintained.
"Schedule of Receivables" means the Schedule of Right to Use
Receivables and the Schedule of Mortgage Loan Receivables.
"Schedule of Right to Use Receivables" means the schedule of Right to
Use Receivables attached hereto as Schedule 3, as the same may be amended or
supplemented from time to time. The Right to Use Receivable Schedule shall set
forth the following information as to each Right to Use Receivable: (i) its
identifying number; (ii) the name of and mailing address for the related
Obligor; (iii) the original number of months to maturity; (iv) the number of
months to maturity as of the related Cutoff Date; (v) its Receivable Interest
Rate; (vi) its Due Date; (vii) its Original Principal Balance; (viii) its
Outstanding Principal Balance as of the related Cutoff Date; (ix) its
Origination Date; and (x) the address at which the related Receivable File is
maintained.
"Seafirst" means Seattle-First National Bank, a national banking
association, and any successor thereto.
"Section 4.04 Deposits" shall have the meaning specified in Section
4.08.
"Seller" means TW HOLDINGS, INC., and any successor thereto.
"Servicing Fee" means the fee to be paid to the Master Servicer for
services rendered during each Collection Period, determined pursuant to Section
10.08.
"Settlement Date" means the tenth day of each month or, if such day is
not a Business Day, the immediately succeeding Business Day, commencing February
10, 1994.
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"Subordinated Notes" means the Eagle Crest Subordinated Note and the
TRI Subordinated Note.
"Subsequent Cutoff Date" means the date specified by the Seller in the
related Schedule of Receivables after which all payments owing under a
Subsequent Receivable shall be paid to or upon the order of the Agent as
directed pursuant to this Agreement.
"Subsequent Receivables" means any Receivable transferred to the Seller
after the Closing Date.
"Subservicer" means any subservicer engaged by the Master Servicer to
subservice a Receivable pursuant to Section 10.02.
"Subservicing Agreement" means an agreement between the Master Servicer
and a Subservicer relating to the servicing of one or more of the Receivables.
"Subsidiary" shall mean any corporation of which a majority (by number
of shares or by number of votes) of any class of outstanding capital stock
normally entitled to vote for the election of one or more directors (regardless
of any contingency which does or may suspend or dilute the voting rights of such
class) is at such time owned directly or indirectly by the Seller or JELD-WEN,
as the case may be, or by one or more of their respective Subsidiaries; provided
that notwithstanding the foregoing, any entity that is consolidated on the
balance sheet of another entity shall be a Subsidiary of the second entity for
purposes of this definition.
"Successor Notice" shall have the meaning specified in Section 10.01.
"Tax" means for any Person any tax, assessment, duty, levy, impost or
other charge imposed by any Governmental Authority on such Person or on any
property, revenue, income or franchise of such Person and any interest or
penalty with respect to any of the foregoing.
"Termination Event" shall have the meaning set forth in Section 11.01.
"Termination Event Rate" means a per annum rate equal to 1.5% above the
related Yield Rate in effect from time to time.
"Timeshare Estate" means a timeshare interval fee simple ownership
interest in a timeshare unit located in the Project which secures a Mortgage
Loan Receivable and which entitles the owner thereof to occupy a unit at the
Project for a particular interval, together with access to the accompanying
facilities at the Project.
"Tranche" means any portion of the Aggregate Net Investment (expressed
in dollars) accruing a yield at the same rate, and, in
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the case of portions of the Aggregate Net Investment accruing a yield at the
same LIBOR Rate, for the same Yield Period.
"Transfer Date" means the date as of which a Receivable is acquired by
the Purchaser.
"TRI" means Trendwest Resorts, Inc., an Oregon corporation, and any
successor thereto.
"TRI Purchase Agreement" means the Receivables Purchase Agreement,
dated as of the date hereof, between TRI and the Seller, and all amendments
thereof and supplements thereto as shall exist from time to time.
"TRI Subordinated Note" means the subordinated non-recourse note of the
Seller to TRI, dated the Closing Date; and all amendments thereof and
supplements thereto as shall exist from time to time.
"TW HOLDINGS" means TW HOLDINGS, INC., a Nevada corporation, and its
successors.
"UCC" means the Uniform Commercial Code as in effect in the related
jurisdiction.
"Undivided Interest" means, as of any date, for each Purchasers'
Investment, an undivided fractional ownership interest (owned ratably by the
Purchasers) equal to (i) the sum of (a) the Purchasers' Investment plus (b) 25%
of the Purchasers' Investment, divided by (ii) the Net Pool Balance.
"Unfront Fee" shall have the meaning specified in the Fee Letter.
"Unmatured Termination Event" means any event which with the giving of
notice, the passage of time or both would constitute a Termination Event.
"WorldMark" means WorldMark, The Club, a California nonprofit mutual
benefit corporation, and its successors.
"Yield Notice" shall have the meaning set forth in Section 3.02.
"Yield Period" means with respect to any Tranche for which the LIBOR
Rate has been selected as the Yield Rate, the period commencing on the first
date the Seller elects to have such LIBOR Rate apply (which date must be a
Settlement Date or, in the case of the first Yield Period, January 10, 1994) and
ending on the Settlement Date closest to a date one, two or three months
thereafter as specified in a Yield Notice given pursuant to Section 3.02.
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"Yield Rate" for any portion of the Purchasers' Investment means the
Reference Rate unless the Seller has made an effective selection of a LIBOR Rate
pursuant to Section 3.02, in which case, "Yield Rate" for such portion of the
Purchasers, Investment means such LIBOR Rate.
Section 1.02. Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography and other means of reproducing words in a 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 Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
Section 1.03. Accounting Term. Except as otherwise provided herein,
accounting terms not specifically defined shall be construed, and all accounting
procedures shall be performed, in accordance with generally accepted accounting
principles in the United States consistently applied.
ARTICLE TWO
THE COMMITMENT; TRANSFER OF RECEIVABLES
Section 2.01. The Commitment. On the terms and subject to the
conditions set forth in this Agreement, and in reliance upon the representations
and warranties herein set forth, each Purchaser, severally and for itself alone,
agrees to purchase from time to time prior to the Commitment Termination Date,
pro rata shares of Undivided Interests from the Seller, each of which shall be
in an amount equal to such Purchaser's Pro Rata Share of the aggregate amount of
the requested Purchase; provided, however, that under no circumstances will any
Purchaser be obligated to make any Purchase to the extent that, after giving
effect to such Purchase, (i) the Aggregate Net Investment would exceed the
Aggregate Net Investment Limit, (ii) such Purchaser's Pro Rata Share of the
Aggregate Net Investment would exceed the amount of its Pro Rata Share of the
Commitment Amount or (iii) the Collateral Percentage as of the date of the
proposed Purchase (after giving effect to such Purchase and all Purchases to be
made on or prior to such date) would be less than 125%.
Section 2.02. Certain Purchase Procedures.
(a) Purchases Other Than Reinvestments. Except in the case of a
Purchase which is a Reinvestment, the Seller shall deliver to the Agent a notice
setting forth the details of each proposed Purchase, substantially in the form
of Exhibit A hereto (a "Purchase Notice"), no later than 11:00 a.m., Seattle
time, on the Business Day immediately preceding the date of the proposed
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Purchase; provided, however, if the Seller shall select the LIBOR Rate as the
initial Yield Rate for such proposed Purchase, the Purchase Notice shall be
delivered to the Agent prior to 11:00 a.m., Seattle time, at least three
Business Days before the date of such proposed Purchase. Notwithstanding the
foregoing, in the case of the initial Purchase to be made on the Closing Date,
the related Purchase Notice can be delivered to the Agent on the Closing Date.
Purchase Notices received after 11:00 a.m., Seattle time, on any Business Day
will be deemed received on the immediately succeeding Business Day. Each
Purchase Notice shall set forth the proposed amount of the Purchase, which shall
be an integral multiple of $100,000 and not less than $1,000,000, and the
proposed date of Purchase, which, except for the initial Purchase on the Closing
Date, shall be a Settlement Date occurring prior to the Commitment Termination
Date. Such notice shall be irrevocable and shall be deemed to constitute a
representation and warranty by the Seller that as of the date of the Purchase
Notice, all of the representations and warranties of the Seller set forth in
Article Seven are true and correct and that no Unmatured Termination Event or
Termination Event has occurred and is continuing. Upon receipt of a Purchase
Notice, the Agent shall promptly notify each Purchaser by telephone (confirmed
by facsimile transmission), or facsimile transmission of the date and time of
the proposed Purchase. Each Purchaser shall before 11:00 a.m., Seattle time, on
the date of such Purchase (other than a Reinvestment), remit an amount equal to
the lesser of (i) such Purchasers Pro Rata Share of the amount of the Purchase
identified in the Purchase Notice or (ii) the maximum amount such Purchaser is
committed to pay pursuant to Section 2.01, in immediately available funds to the
Agent at its Commercial Loan Service Center, Seattle, Washington. Upon
fulfillment to the Agent's satisfaction of the applicable conditions set forth
in Article Six, and after receipt by the Agent of such funds, the Agent will
promptly make such immediately available funds available to the Seller by
depositing them to an ordinary checking account maintained for such purpose by
the Seller with the Agent.
(b) Reinvestments. Reinvestments shall be made by permitting the Master
Servicer to apply each Purchaser's Pro Rata Share of the Purchasers, Share of
Collected Principal towards the purchase of additional Undivided Interests
pursuant to Section 4.02.
Section 2.03. Extension of Commitment Termination Date. The Seller may
request, on an annual basis, a one-year extension of the Commitment Termination
Date. Such request must be delivered in writing to the Agent and each Purchaser
no later than five months prior to the then-scheduled Commitment Termination
Date. Each Purchaser shall notify the Seller and the Agent in writing no later
than three months prior to the then-scheduled Commitment Termination Date, if it
agrees to the extension of the Commitment Termination Date, which decision shall
be made in its sole discretion. If all Purchasers agree to the extension, the
Commitment Termination Date shall be extended for one year. If any Purchaser
does not notify the Agent in writing that it agrees to
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such an extension at least three months before the then-scheduled Commitment
Termination Date, the Agent shall notify the other Purchasers thereof and the
Seller shall have the right, subject to Section 13.02, to designate another bank
or financial institution, which may be a Purchaser, which is acceptable to the
Agent to purchase at par (on any Settlement Date prior to a day two months
before the then-scheduled Commitment Termination Date) such declining Purchasers
Pro Rata Share of the Aggregate Net Investment and to assume such Purchaser's
Pro Rata Share of the Commitment without recourse to or warranty by, or expense
to, such Purchaser except that such declining Purchaser shall be deemed to have
represented and warranted to the Seller and to the replacement Purchaser that
its Pro Rata Share of the Aggregate Net Investment is free of any Liens created
by or arising under such declining Purchaser. If the Seller designates another
bank or financial institution pursuant to the preceding sentence, the declining
Purchaser shall be obligated to sell its Undivided Interest to the replacement
Purchaser upon such terms. If no such replacement Purchaser is found, the
Commitment Termination Date shall not be extended.
Section 2.04. Conveyance of Receivables.
(a) In consideration of the obligation of the Purchasers to make
purchases from time to time pursuant to this Agreement, on each Transfer Date,
the Seller does hereby transfer, assign and otherwise convey to the Agent for
the benefit of the Purchasers, without recourse (subject to the obligations of
the Seller herein), all of its right, title and interest in, to and under the
Assigned Collateral obtained by the Seller on such Transfer Date (or all
Assigned Collateral owned as of the Closing Date in the case of the first
Transfer Date) . Notwithstanding the foregoing, the Seller cannot convey any
Mortgage Loan Receivables to the Agent unless the Seller shall have received
notice from the Agent (acting upon the direction of the Required Purchasers)
that the Purchasers have satisfied all related appraisal and evaluation
requirements with respect to the related Mortgaged Properties under FIRREA.
(b) In connection with each transfer and assignment described in
Section 2.04(a), on or prior to the related Transfer Date the Seller will (i)
deliver to the Agent (A) a revised Schedule of Mortgage Loan Receivables and/or
a revised Schedule of Right to Use Receivables, as the case may be, listing all
of the Receivables being conveyed on the related Transfer Date and all of the
related Receivables previously conveyed pursuant to this Agreement, and (B) an
Officer's Certificate of the Seller to the effect that the related Receivable
Files have been delivered to or upon the order of the Master Servicer, as
custodian for the Agent, and that the following legend (or the substantive
equivalent thereof) has been placed on each of the above-referenced files, on
each copy of the Mortgage Notes and on each of the data processing reports that
the Master Servicer, the Seller or the originators generates which are of the
type which a potential purchaser or lender would reasonably be expected to
review to evaluate the Receivables: "Undivided
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Interests in the Receivable(s) described herein have been sold to various
Purchasers pursuant to a Receivables Transfer Agreement, dated as of December 1,
1993, among TW HOLDINGS, INC., the Purchasers, Seattle-First National Bank, as
Agent, and JELD-WEN, inc.," and (ii) file in the appropriate offices in the
jurisdictions where filing of a UCC-1 financing statement is necessary or
appropriate, such UCC-1 financing statements shall be executed by the Seller as
debtor, naming the Agent, acting on behalf of the Purchasers, as secured party
and listing the related Assigned Collateral as collateral. In connection with
such filing, the Seller agrees that it shall cause to be filed all necessary
continuation statements and to take or cause to be taken such actions and
execute such documents as are necessary to perfect the interests of the
Purchasers in such Assigned Collateral. File-stamped copies of each such
financing statement or continuation statement shall be delivered to the Agent as
soon they are received by the Seller.
(c) In connection with the first transfer and assignment pursuant to
Section 2.04 (a) of Right to Use Receivables, and the first such transfer and
assignment of Mortgage Loan Receivables, the Seller will deliver to the Agent an
opinion of counsel to the effect that the Agent will have a first perfected
security interest in such Receivables (and, in the case of Mortgage Loan
Receivables, a first perfected security interest in the related Mortgage Notes),
all collections on or in respect of such Receivables after the related Cutoff
Date and all proceeds of the foregoing.
(d) On each anniversary of the First Settlement Date, the Seller will
deliver to the Agent an opinion of counsel to the effect that in respect of all
Receivables transferred and assigned pursuant to Section 2.04 (a) since the
first such transfer and assignment (or, in the case of each anniversary of the
first Settlement Date after the first such anniversary, Receivables so
transferred and assigned during the past year) the Agent has a first perfected
security interest in such Receivables (and, in the case of Mortgage Loan
Receivables, a first perfected security interest in the related Mortgage Notes),
all collections on or in respect of such Receivables after the related Cutoff
Dates and all proceeds of the foregoing.
(e) It is the intention of the Seller that the transfers and
assignments contemplated by this Agreement shall constitute a sale of
Receivables in an aggregate principal amount up to the Commitment Amount from
the Seller to the Agent, on behalf of the Purchasers, and the beneficial
interest in and title to such Receivables shall not be part of the Seller's
estate in the event of the filing or a bankruptcy petition by or against the
Seller under any bankruptcy law. In the event that the transfers and assignments
contemplated by this Agreement are deemed to be other than a sale, this
Agreement shall be deemed to be and in such event hereby is the grant of a
security interest from the Seller to the Agent in the Assigned Collateral and
the Agent, on behalf of the Purchasers, shall have all the rights, powers and
privileges of a
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secured party under the UCC. In such event, the Seller agrees to take such
action and execute such documents as the Agent shall reasonably request in order
fully to realize the benefits of such secured party status, including, without
limitation, powers of attorney, financing statements, notices of lien or other
instruments or documents.
Section 2.05. Custody of Receivable Files.
(a) To assure uniform quality in servicing the Receivables and to
reduce administrative costs, the Agent, upon the execution and delivery of this
Agreement, revocably appoints the Master Servicer, and the Master Servicer
accepts such appointment, to act as the agent of the Agent as custodian of the
following documents or instruments, directly or through one or more Subservicers
which are hereby constructively delivered to the Agent, and of which the Master
Servicer shall acknowledge receipt thereof, with respect to each Receivable
assigned and transferred on the related Transfer Date:
(i) the fully executed original of the Receivable;
(ii) documents evidencing or relating to any insurance policy
relating to such Receivable, the related Obligor and, if such
Receivable is a Mortgage Loan Receivable, the related Mortgaged
Property;
(iii) in the case of a Mortgage Loan Receivable, the original
Mortgage Note endorsed (which endorsement may be by manual or facsimile
signature) by the Seller without recourse to the order of the Agent in
the following form: "Without recourse, pay to the order of
Seattle-First National Bank, as Agent of the Purchasers under the
Receivables Transfer Agreement, dated as of December 1, 1993, among TW
HOLDINGS, INC., the Agent, the Purchasers and JELD-WEN, inc.";
(iv) in the case of a Mortgage Loan Receivable, a recorded
Assignment to the Agent, acting on behalf of the Purchasers, of the
related Mortgage or, if the Seller provides the Agent with an opinion
of counsel admitted to practice law in the state in which the related
Mortgaged Property is located to the effect that recordation is not
necessary to secure the interest in such Mortgaged Property in the name
of the Agent, an assignment in recordable form;
(v) in the case of a Mortgage Loan Receivable, originals of all
intervening Assignments with evidence of recording indicated thereon;
(vi) in the case of a Mortgage Loan Receivable, the related
Mortgage, with evidence of recording indicated thereon;
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(vii) originals of all assumption, modification and substitution
agreements where the terms or provisions of such Receivable and, if
such Receivable is a Mortgage Loan Receivable, the related Mortgage or
Mortgage Note, have been modified or such Receivable, Mortgage or
Mortgage Note have been assumed; and
(viii) copies of all other Receivable Documents and any and all
other documents that the Seller, the related Obligor or the Master
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable, the related
Obligor and, if such Receivable is a Mortgage Loan Receivable, the
related Mortgaged Property.
(b) If the Seller cannot deliver any original Mortgage or mortgage
Assignment with evidence of recording thereon to or upon the order of the Agent
on the related Transfer Date solely because of a delay caused by the public
recording office where such original Mortgage or mortgage Assignment has been
delivered for recordation, the Seller shall deliver an Officer's Certificate to
the Agent, with a photocopy of such Mortgage or mortgage Assignment attached
thereto, stating that such original Mortgage or mortgage Assignment has been
delivered to the appropriate public recording official for recordation. The
Seller shall promptly deliver to or upon the order of the Agent such original
Mortgage or mortgage Assignment with evidence of recording indicated thereon
upon receipt thereof from such public recording official. If the Seller within
90 days from such Transfer Date shall not have received such original Mortgage
or mortgage assignment from the related public recording official, it shall
obtain, and deliver to the Agent a copy of such original Mortgage or mortgage
Assignment, certified by such public recording official to be a true and
complete copy of such original Mortgage or mortgage assignment as recorded by
such public recording office. Notwithstanding the foregoing, in the event that,
for whatever reason, the Seller fails to deliver to the Agent in respect of a
Mortgaged Loan Receivable either an opinion of counsel pursuant to Section
2.05(a)(iv) or a recorded Assignment of mortgage with evidence of recording
thereon in favor of the Agent within 90 days after the related Transfer Date,
the Seller will be required to repurchase such Mortgage Loan Receivable pursuant
to Section 7.04.
Section 2.06. Duties of Master Servicer as Custodian.
(a) The Master Servicer, in its capacity as custodian, shall hold the
Receivable Files on behalf of the Agent for the use and benefit of all
Purchasers, and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable. The Receivable Files will be
marked and physically separated from the files relating to all other right to
use timeshare receivables and mortgage loan timeshare receivables that the
Master Servicer services on behalf of itself or others. In performing its duties
as custodian, the Master Servicer shall act with reasonable care, using that
degree of skill and attention that
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it exercises with respect to comparable receivables that it services for itself
or others. The Master Servicer shall conduct, or cause to be conducted, periodic
reviews of the files of all receivables owned or serviced by it which shall
include the Receivable Files held by it under this Agreement, and of the related
accounts, records and computer systems, in such a manner as shall enable the
Agent to verify the accuracy of the Master Servicer's record keeping. The Master
Servicer shall promptly report to the Agent any failure on its part to hold the
Receivable Files and maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy any such failure.
(b) The Master Servicer shall maintain each Receivable File at one of
the locations set forth in Schedule 5 hereto, or at such other location or
locations as shall be specified to the Agent by 30 days' prior written notice
(and each such location shall be added to a revised Schedule 5). The Master
Servicer shall make available to the Agent or its duly authorized
representatives, attorneys or auditors the Receivable Files and the related
accounts, records and computer systems maintained by the Master Servicer at such
times as the Agent may reasonably request.
(c) Upon instruction from the Agent, the Master Servicer shall release
any document in the Receivable Files to the Agent or its agent or designee, as
the case may be, at such place or places as the Agent may designate, as soon as
practicable. The Master Servicer shall not be responsible for any loss
occasioned by the failure of the Agent to return any document or any delay in
doing so.
Section 2.07. Instructions; Authority to Act. The Master Servicer shall
be deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by an authorized officer
of the Agent. A certified copy of a bylaw or of a resolution of the Board of
Directors of the Agent shall constitute conclusive evidence of the authority of
any such authorized officer to act and shall be considered in full force and
effect until receipt by the Master Servicer of written notice to the contrary
given by the Agent.
Section 2.08. Indemnification by Master Servicer as Custodian. The
Master Servicer, as custodian, shall indemnify the Agent and the Purchasers for
any and all liabilities, obligations, losses, compensatory damages, payments,
costs or expenses of any kind whatsoever that may be imposed on, incurred or
asserted against the Agent and the Purchasers as the result of any improper act
or omission in any way relating to the maintenance and custody by the Master
Servicer, as custodian, of the Receivable Files; provided, however, that the
Master Servicer shall not be liable for any portion of any such amount resulting
from the willful misfeasance, bad faith or negligence of the Agent, any
Purchaser or any successor Master Servicer.
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Section 2.09. Effective Period and Termination. The Master Servicer's
appointment as custodian shall become effective as of the Closing Date and shall
continue in full force and effect until terminated pursuant to this Section. If,
pursuant to Section 10.01, the Master Servicer shall resign as Master Servicer
or if all of its rights and obligations may have been terminated, the
appointment of the Master Servicer as custodian shall be terminated by the Agent
(acting upon the direction of the Required Purchasers), in the same manner as
the Agent or such Purchasers may terminate the rights and obligations of the
Master Servicer pursuant to Section 10.01. The Agent may terminate the Master
Servicer's appointment as custodian, with cause at any time upon written notice
to the Master Servicer, and without cause upon 30 days' prior written notice to
the Master Servicer. As soon as practicable after any termination of such
appointment, the Master Servicer shall deliver the Receivable Files to or upon
the order of the Agent at such place or places as the Agent may reasonably
designate. Notwithstanding the termination of the Master Servicer as custodian,
the Agent agrees that upon any such termination, the Agent shall provide, or
cause its agent to provide, access to the Receivable Files to the Master
Servicer for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
ARTICLE THREE
EARNED YIELD
Section 3.01. Earned Yield. The Purchasers shall be entitled to
receive, and the Seller agrees to cause the Master Servicer to pay to the Agent,
out of Collections, for the account of each Purchaser, an amount (the "Earned
Yield") equal to the product of (i) the Aggregate Net Investment from the date
an Undivided Interest was first purchased until the Aggregate Net Investment is
reduced to zero on a day following the Commitment Termination Date and (ii) (A)
the applicable Yield Rate at all times prior to a Notice Date or (B) the
Termination Event Rate at all times on and after a Notice Date.
Section 3.02. Selection of Yield. The Seller may, subject to the
requirements of this Section, on at least three Business Days' prior written
notice, select the LIBOR Rate as the Yield Rate for all or any portion of the
Aggregate Net Investment for any applicable Yield Period. Such notice (a "Yield
Notice") shall be deemed delivered on receipt by the Agent except that any Yield
Notice received by the Agent after 11:00 a.m., Seattle time, on any day, shall
be deemed to have been received on the immediately succeeding Business Day. Each
Yield Notice shall identify, subject to the conditions of this Section, the
dollar amount of the Tranche for which the LIBOR Rate is to apply and the Yield
Period selected by the Seller. Such Yield Notice shall be irrevocable and shall
constitute a representation and warranty by the Seller that as of the date of
such Yield Notice, the representations and warranties of the Seller set forth in
Article Seven are true and correct and
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that no Unmatured Termination Event or Termination Event has occurred and is
continuing. Upon receipt of a Yield Notice, the Agent shall promptly notify each
Purchaser by telephone (confirmed by facsimile transmission) of the information
set forth therein. The Seller's right to select the LIBOR Rate as the Yield Rate
for all or any portion of the Aggregate Net Investment shall be subject to the
following conditions: (i) the amount of any Tranche for which the yield is to be
calculated at a particular LIBOR Rate for the same Yield Period shall be an
integral multiple of not less than $100,000; (ii) a LIBOR Rate may not be
selected for all or any portion of a Tranche which is already accruing interest
at a LIBOR Rate unless such selection is only to become effective at the
maturity of the Yield Period then in effect; (iii) the Agent or any Purchaser
shall not have given notice pursuant to Section,3.04 that the LIBOR Rate is not
available; and (iv) no Unmatured Termination Event or Termination Event shall
have occurred and be continuing. Any Yield Notice which specifies a LIBOR Rate
but which fails to specify a Yield Period shall be deemed to have specified a
Yield Period ending on a Settlement Date nearest to the date one month after the
first day of such Yield Period. The Yield Notice may be given with and contained
in any Purchase Notice. In the absence of an effective request for the
application of a LIBOR Rate for all or any portion of the Aggregate Net
Investment, the Yield Rate for the Aggregate Net Investment (or portion thereof)
shall be the Reference Rate.
Section 3.03. Applicable Days For Computation of Yield. Computations of
Earned Yield based on (i) the LIBOR Rate shall be made on the basis of a year of
360 days, and (ii) the Reference Rate shall be made on the basis of a year of
365 or 366 days, as the case may be, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such Earned Yield is payable.
Section 3.04. Unavailable LIBOR Rate. If in the reasonable judgment of
any Purchaser, for any reason fair and adequate means do not exist for
establishing a particular LIBOR Rate or that obtaining a yield on any Tranche at
a LIBOR Rate by such Purchaser has become unlawful, such Purchaser may give
notice thereof to the Agent and the Seller. After such notice has been given and
until such Purchaser notifies the Seller and the Agent that the circumstances
giving rise to such notice no longer exist, the LIBOR Rate shall no longer be
available. Thereafter, any attempt by the Seller to select the LIBOR Rate as the
Yield Rate shall be ineffective. If the circumstances giving rise to the notice
described herein no longer exist, the Purchaser shall notify the Seller and
Agent in writing, and the Seller shall then once again become entitled to select
the LIBOR Rate as the Yield Rate in accordance with Section 3.02.
Section 3.05. Yield Protection. In the event that after the date hereof
any change occurs in any applicable law, regulation, guideline, treaty or
directive or interpretation thereof by any authority charged with the
administration or interpretation
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thereof, or any condition is imposed by any authority after the date hereof or
any change occurs in any condition imposed by any authority on or prior to the
date hereof which:
(i) subjects any Purchaser to any Tax, or changes the basis of
taxation of any payments to any Purchaser made under any Facility
Document with respect to any Undivided Interest owned by it or with
respect to its obligation or right to make Purchases (other than a
change in the rate of tax based solely on the overall net or gross
income of such Purchaser);
(ii) imposes, modifies or determines applicable any reserve,
deposit, assessment or similar requirement against any assets held by,
deposits with or for the account of, or credit extended by, any office
of any Purchaser;
(iii) affects the amount of capital required or expected to be
maintained by any Purchaser or any corporation controlling such
Purchaser with respect to any Undivided Interest owned by it or with
respect to its obligation or right to make Purchases; or
(iv) imposes upon any Purchaser any other condition with respect
to any Undivided Interest owned by it or with respect to its obligation
or right to make Purchases;
and, the result thereof is, or would be, (a) to increase the cost to any
Purchaser in respect of making, issuing, maintaining or committing to make,
issue or maintain any Undivided Interest (other than any Undivided Interest to
the extent that the Reference Rate is applicable thereto) , (b) to reduce the
amount of any sum received or receivable by any Purchaser under any Facility
Document or (c) in the reasonable determination of any Purchaser, to reduce the
rate of return on such Purchaser's capital as a consequence of its obligations
hereunder or arising in connection herewith to a level below that which such
Purchaser would otherwise have achieved, then, upon demand by such Purchaser,
the Seller shall immediately pay to such Purchaser additional amounts which
shall be sufficient to compensate it for such increased costs incurred or
reduced receipts suffered thereby for a period not to exceed 90 days prior to
the date of such demand.
A certificate of a Purchaser as to such increased costs incurred or
reduced receipts suffered as a result of any event mentioned in clause (i)
through (iv) above submitted to the Seller specifying the event causing such
increased cost or reduced receipt and setting forth in reasonable detail the
calculation made to determine the amount of such increased cost or reduced
receipt and the assumptions used in calculating such amount shall be
presumptively correct as to the amount thereof, if such assumptions are
reasonable and there are not demonstrable errors in such calculation. Each
Purchaser shall exercise reasonable efforts to minimize such increased costs or
reduced receipts.
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The protection of this Section shall be available to each Purchaser
regardless of any possible contention of invalidity or inapplicability of the
relevant law, regulation, guideline, treaty, directive, condition or
interpretation thereof. In the event that the Seller pays any Purchaser the
amount necessary to compensate such Purchaser for any charge, deduction or
payment incurred or made by it as provided in this Section, and such charge,
deduction or payment or any part thereof is subsequently returned to such
Purchaser as a result of the final determination of the invalidity or
inapplicability of the relevant law, regulation, guideline, treaty, directive or
condition, then such Purchaser shall remit to the Seller the amount paid by the
Seller which has actually been returned to such Purchaser (together with any
interest actually paid to Purchaser on such returned amount) less such
Purchaser's costs and expenses incurred in connection with such governmental
regulation or any challenge made by such Purchaser with respect to its validity
or applicability.
Section 3.06. Funding Losses. In the event that any Purchaser shall
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Purchaser to finance a portion of the Aggregate Net Investment for which Earned
Yield was or was to be calculated at the LIBOR Rate) as a result of
(i) any payment in respect of any Tranche made on a date other
than the Settlement Date initially established for such Tranche (to the
extent that the Earned Yield related thereto was initially calculated
by reference to the LIBOR Rate) whether voluntary, involuntary, the
result of the collection efforts of the Agent or one or more
Purchasers, or the result of any change in a Payment Period following a
Notice Date;
(ii) any repurchase of all or any portion of a Tranche pursuant
to Section 15.01 on a day other than a Settlement Date for such Tranche
(to the extent that the Earned Yield related to such Tranche was
calculated by reference to the LIBOR Rate); or
(iii) any Purchase (in connection with which a Yield Notice
electing a LIBOR Rate was delivered) not being made in accordance with
the Purchase Notice therefor;
such Purchaser shall give the Seller and the Agent written notice of such event
specifying the amount that will, in the reasonable opinion of such Purchaser,
reimburse it for such loss or expense and setting forth in reasonable detail the
calculation made to determine the amount of such loss or expense and the
assumptions used in calculating such amount shall be presumptively correct as to
the amount thereof, if such assumptions are reasonable and there are not
demonstrable errors in such calculation. The Seller shall, within five Business
Days after the receipt of such notice, pay such amount to such Purchaser.
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ARTICLE FOUR
COLLECTIONS AND SETTLEMENTS
Section 4.01. Collections. On each day during each Collection Period,
the Master Servicer shall collect the Purchasers' Share of Collected Principal
and the Purchaser's Share of Collected Interest received or deemed received on
such day and shall hold such funds in trust for the benefit of the Purchasers
and shall collect all other Collected Principal and Collected Interest so
received or deemed received and shall hold such funds in trust for the benefit
of the Seller. Except as otherwise provided in Sections 4.04, 4.08 and 4.09,
Collections received by the Master Servicer need not be segregated from other
funds of the Master Servicer. In the event that the Seller receives any payments
on or in respect of a Receivable subsequent to the related Transfer Date, the
Seller shall remit such amount to the Master Servicer within two Business Days
of receipt.
Section 4.02. Reinvestments. Subject to the satisfaction of the
conditions set forth in Section 6.02, the Seller's right to make a contrary
election pursuant to Section 4.03(a)(iii) and subject to Section 4.03(b)(ii) ,
provided that no Notice Date shall have occurred, on each Settlement Date on or
prior to the Commitment Termination Date, the Master Servicer shall be deemed to
have reinvested (for the benefit of the Purchasers) the Purchasers' Share of
Collected Principal received during the related Collection Period in additional
Undivided Interests in the Receivables Pool. In the event any such funds cannot
be reinvested on the date received because the conditions set forth in Section
6.02 have not been satisfied, they shall be deemed reinvested on the first day
thereafter on which such conditions shall be satisfied unless sooner paid to the
Agent on any Settlement Date. Neither the Purchasers' Investment, the Earned
Yield thereon nor any Obligation shall be deemed reduced or paid on account of
such unreinvested Collections until such amount is paid to the Agent on a
Settlement Date.
Section 4.03. Settlement Procedures.
(a) Prior to Termination Event. Subject to Section 4.04 and except as
otherwise provided in Section 4.03(b), on each Settlement Date which is the last
day of a Payment Period, the Seller shall cause the Master Servicer to pay to
the Agent:
(i) from the Purchaser's Share of Collected Interest collected
since the last Settlement Date on which any payment was due under this
Section and from the Purchaser's Share of Collected Interest collected
prior thereto and allocated but unpaid with respect to the Earned Yield
on the Aggregate Net Investment (as Collected Interest has been reduced
to pay the Servicing Fee, including any unpaid Servicing Fee in respect
of one or more prior Collection Periods, to the Master Servicer
pursuant to Section 10.08), the lesser of (A) the
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unpaid Earned Yield on the Purchasers' Investment in each Maturing
Tranche accrued to (but excluding) such Settlement Date, or (B) the
amount of the Purchaser's Share of Collected Interest collected since
the last Settlement Date on which any payment was due under this
Section plus the amount of the Purchaser's Share of Collected Interest
collected prior thereto and allocated but unpaid with respect to the
Earned Yield on the Aggregate Net Investment (as Collected Interest has
been so reduced); and
(ii) from the Purchasers, Share of Collected Principal collected
since the last Settlement Date on which any payment was due under this
Section, the amount of the Purchasers' Share of Collected Principal so
collected less any amounts that the Master Servicer has been deemed to
have reinvested from such Collections pursuant to Section 4.02;
provided, that notwithstanding the terms of Section 4.02, if on any
Settlement Date which is the last day of a Payment Period, the Seller
so notifies the Agent in writing, the Master Servicer shall pay to the
Agent any amount selected by the Seller up to the amount of the
Purchasers, Share of Collected Principal collected since the last
Settlement Date on which any payment was due under this Section. If the
Seller elects to cause the Master Servicer to make such a payment, the
amount so paid shall be deemed not to have been reinvested pursuant to
Section 4.02.
(b) Subsequent to Termination Event. If a Notice Date shall have
occurred on or before any Settlement Date, in addition to all other remedies
provided for herein, on such Settlement Date the Seller shall cause the Master
Servicer to pay to the Agent:
(i) the Purchaser's Share of Collected Interest collected since
the last Settlement Date on which any payment was due under this
Section (as Collected Interest has been reduced to pay the Servicing
Fee, including any unpaid Servicing Fee in respect of one or more prior
Collection Periods); and
(ii) from the Purchasers' Share of Collected Principal collected
since the last Settlement Date on which any payment was due under this
Section, the amount of the Purchasers' Share of Collected Principal so
collected. To the extent that pursuant to Section 4.02, the Master
Servicer would have been deemed to have reinvested some or all of the
Purchasers' Share of Collected Principal which the Seller is required
to pay to the Agent pursuant to Section 4. 03 (b) , such reinvestment
shall be deemed not to have occurred.
Section 4.04. Deposits to Collection Account to Avoid Break- Funding
Costs. In the event that on any Settlement Date the Seller would, pursuant to
Section 4.03(a)(ii), be required to disburse principal payments to the Agent for
a Tranche for which the LIBOR Rate was selected as the Yield Rate prior to the
last day of the
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applicable Payment Period for such Tranche, in order to avoid possible funding
losses which could result from such accelerated payment, on such Settlement Date
the Seller shall deposit to the Collection Account, in lieu of paying such
amount to the Agent pursuant to Section 4.03(a)(ii) , an amount equal to (a)
such amount less (b) the sum of (i) the Dollar amount of all then Maturing
Tranches for which the Earned Yield is calculated in respect of the LIBOR Rate
and (ii) the Dollar amount of all Tranches (whether Maturing Tranches or not)
for which the Earned Yield is calculated in respect of the Reference Rate.
Neither the Purchasers' Investment, the Earned Yield thereon nor any Obligation
shall be deemed reduced or paid on account of the deposit of such amounts to the
Collection Account.
Section 4.05. Deemed Collections. If on any day, any of the Seller's
representations or warranties set forth in Sections 7.01, 7.02 or 7.03 shall
prove to have been untrue when made with respect to any Receivable in the
Receivables Pool or the Seller shall be in breach of its obligations under
Sections 8.01(d), 8.01(e), 8.01 (f) or 9.01 in respect of any Receivable in the
Receivables Pool, then the Seller shall be deemed to have received on such day a
Collection of such Receivable in full, the Seller shall transfer an amount equal
to such deemed collection to the Master Servicer and the Master Servicer shall
reinvest and distribute such payment pursuant to Sections 4.02, 4.03 and 4.04,
as the case may be, as if such payment actually had been received by the Seller
on such day from the Obligor of such Receivable. Payments under this Section
shall not constitute a payment under the indemnity provisions of Article
Fourteen.
Section 4.06. Allocation of Payments and Collections.
(a) Except as otherwise required by law or the related Receivable
Documents and subject to the provisions under 4.06(b) below, all amounts
collected on or in respect of each Receivable shall be applied first against
fees, expenses and indemnities due in respect of such Receivable, second,
against interest due in respect of such Receivable and thereafter against the
obligations of the related Obligor to repay the principal amount thereof.
(b) On each Settlement Date, Collections (other than Collections
reinvested pursuant to Section 4. 02) shall be applied by the Master Servicer in
the following amounts and in the following order of priority:
(i) to the Master Servicer, an amount equal to the Servicing Fee
in respect of the related Collection Period any unpaid Servicing Fee in
respect of one or more prior Collection Periods;
(ii) to the Agent, any amount payable pursuant to Section 4.03;
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(iii) to the Agent, an amount equal to all Program Costs due to
the Agent payable during the related Collection Period; and
(iv) any remaining Collections shall be paid to the Seller, free
and clear of all Liens.
Section 4.07. Order of Distribution by the Agent. On each Settlement
Date on which the Agent receives any payments pursuant to Sections 4.03 or 4.08,
the Agent shall distribute such funds to the Purchasers first in payment of the
unpaid Earned Yield on the Purchasers, Investment in the Maturing Tranche
accrued to (but excluding) such Settlement Date, and thereafter in reduction of
the Aggregate Net Investment, in each case until reduced to zero.
Section 4.08. Collection Account.
(a) On or prior to the Closing Date, the Seller shall establish an
account with the Agent in the name of the Agent for the benefit of the Agent and
the Purchasers (the "Collection Account") which account, together with all
monies on deposit therein and investments thereof, shall be under the exclusive
dominion and control of the Agent (for the benefit of the Purchasers). Monies
shall be deposited in the Collection Account from time to time as described in
Sections 4.04 and 4.09. Neither the Seller nor the Master Servicer shall have
any right to make withdrawals or distributions from the Collection Account nor
shall any additional amounts be deposited to or commingled with amounts in the
Collection Account except as provided in Section 4.04, 4.05 and this Section.
(b) On any Settlement Date which is the last day of a Payment Period,
if a Notice Date shall not have occurred and if any amounts have been deposited
to the Collection Account pursuant to Section 4.04 which have not yet been
disbursed to the Agent ("Section 4.04 Deposits"), the Agent shall withdraw such
monies, to the extent that such monies, together with all amounts payable under
Section 4.03 (a) (ii) on such date, do not exceed the sum of (i) the amount of
all then Maturing Tranches for which the Earned Yield is calculated in respect
of the LIBOR Rate and (ii) the amount of all Tranches (whether Maturing Tranches
or not) for which the Earned Yield is calculated in respect of the Reference
Rate. Section 4.04 Deposits withdrawn by the Agent hereunder shall be applied as
if they had been received in payment from the Seller on the date withdrawn
pursuant to Section 4.03(a)(ii).
(c) If a Notice Date shall have occurred and the Agent has delivered
notice to the Seller that all Collections should thereafter be deposited through
the Lock Box Network, the Master Servicer shall cause to be deposited into the
Collection Account (i) all Collections received by it or a Subservicer within
two Business Days of receipt and (ii) all monies on deposit in the Lock Box
Accounts and any New Lock Box Accounts on the Business Day immediately preceding
the last day of each Collection Period and on
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each other Business Day or Business Days during each Collection Period as
selected by the Agent (acting upon instructions of the Required Purchasers). On
the related Settlement Date, such monies will be applied in the same manner and
to the same extent as the Seller would otherwise be obligated to pay and apply
pursuant to Section 4.03(b). The balance of the amounts on deposit in the
Collection Account, if any, shall be applied against accrued but unpaid
obligations and after such unpaid Obligations are satisfied, delivered to the
Seller on such Settlement Date.
(d) The Agent shall invest and reinvest monies on deposit in the
Collection Account in short-term, high-quality investments acceptable to the
Agent pursuant to instructions given by the Seller; provided, that (i) the Agent
and the Purchasers shall not be liable in any manner for any reason for any loss
of or on account of such investments and (i) the Agent shall at all times be a
pledgee in possession of such investments. Interest accruing on and income
earned in respect of amounts and investments in the Collection Account shall be
retained in the Collection Account and shall be applied against accrued but
unpaid Obligations and after such unpaid Obligations are satisfied, delivered to
the Seller on each Settlement Date. The Seller agrees that all income earned on
amounts in the Collection Account shall be earned by the Seller and reported on
its tax returns. To the extent that the Agent is otherwise liable for the
payment of any Taxes in respect of monies on deposit from time to time in the
Collection Account, the Seller shall indemnify the Agent in respect thereof and
shall promptly reimburse the Agent for any such Taxes paid.
Section 4.09. Lock Boxes. After a Termination Event has occurred and
the Agent has delivered notice to the Seller and the Master Servicer that all
Collections should thereafter be deposited through the Lock Box Network, the
Seller shall instruct or otherwise cause all Obligors to make all payments under
the Receivables directly to a Lock Box and shall instruct the applicable Lock
Box Bank to deposit all cash, checks and drafts received therein directly to a
Lock Box Account. The Seller shall not add any bank as a Lock Box Bank, any post
office or bank box as a Lock Box, or any account as a Lock Box Account
(including, without limitation, the addition of any such Lock Box Bank, Lock Box
or Lock Box Account in connection with the establishment of a Lock Box Network)
unless (a) the Agent shall have received five days' prior written notice of such
addition, (b) the Agent shall have received a copy of any new Lock Box Agreement
and (c) the Agent shall have received undated executed copies of Lock Box
Notices to each Lock Box Bank for each Lock Box and Lock Box Account. The Seller
shall not terminate any bank as a Lock Box Bank, terminate any post office or
bank box as a Lock Box, or terminate any account as a Lock Box Account unless
the Agent shall have received 15 days' prior written notice of such termination.
After the occurrence of a Termination Event, and after the Agent has delivered
notice to the Seller that all Collections should thereafter be deposited through
the Lock Box Network, (i) upon receipt of notice from the Agent, the Seller
shall instruct the
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Lock Box Banks to segregate all Collections from all other collections received
in such Lock Box and to deposit such Collections into an account designated by
the Agent, (ii) the Agent is hereby authorized, whether or not it is then
servicing as Collection Agent, to date and deliver to the Lock Box Banks, the
Lock Box Notices delivered to the Agent hereunder and (iii) upon the receipt of
notice from the Agent, the Seller shall (A) establish and maintain at its
expense new Lock Boxes (the "New Lock Boxes") into which only Collections will
be received, (B) open new Lock Box Accounts (the "New Lock Box Accounts") into
which only Collections on or in respect of the Assigned Collateral will be
deposited and (C) notify the Obligors that all future payments by such Obligors
under the Leases are to be made to such new Lock Boxes. The Seller hereby agrees
that the Agent (for the benefit of the Purchasers) shall have the exclusive
ownership and control of the New Lock Boxes and the New Lock Box Accounts, and
shall take any further action, including, without limitation, executing
additional Lock Box Notices, to transfer or establish such control. In case any
authorized signatory of the Seller whose signature shall appear on any Lock Box
Notice shall cease to have such authority before the delivery of such Lock Box
Notice, such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of such
delivery. Monies on deposit in the Lock Box Accounts and any New Lock Box
Accounts will be withdrawn therefrom and deposited into the Collection Account
pursuant to Section 4.08(c).
ARTICLE FIVE
FEES AND OTHER PAYMENTS
Section 5.01. Fees. The Seller shall pay, pursuant to Section 4. 06 (b)
, to the Agent the following amounts: (i) on each Settlement Date and on the
Commitment Termination Date, the Commitment Fee, (ii) on the Closing Date, the
Upfront Fee and (iii) on each day specified in the Fee Letter, the related fees
and expenses specified therein.
Section 5.02. Termination Event Rate Payments. The Seller or the Master
Servicer, as the case may be, shall pay to the Agent (for the benefit of the
Agent and the Purchasers, as the case may be) interest on all Obligations not
paid when due under any Facility Document at the Termination Event Rate which
interest shall be payable on demand.
Section 5.03. Payments.
(a) All payments of the Commitment Fees and the Upfront Fee (including
interest thereon accruing under Section 5.02), all payments of Earned Yield and
all amounts paid to the Agent for the repayment of the Purchasers' Investment
shall be made for the ratable account of the Purchasers.
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(b) All amounts to be paid to the Agent by the Seller or the Master
Servicer under any Facility Document shall be paid to the Agent at its
Commercial Loan Service Center, Seattle, Washington or deposited to the
Collection Account in accordance with the terms hereof no later than 11:00 a.m.,
Seattle time, on the day when due in immediately available funds payable in
Dollars.
(c) If any Purchaser shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of or forbearance to exercise,
set off or otherwise) on account of the Aggregate Net Investment, Earned Yield
or otherwise (other than pursuant to Sections 3.05 and 3.06) in excess of such
Purchaser's Pro Rata Share of payments then or therewith obtained by all
Purchasers, such Purchaser shall purchase from the other Purchasers such
participations in the interests held by them as shall be necessary to cause such
purchasing Purchaser to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing
Purchaser, the purchase shall be rescinded and each Purchaser that has sold a
participation to the purchasing Purchaser shall repay to the purchasing
Purchaser the purchase price (without interest) to the ratable extent of such
recovery. The Seller agrees that any Purchaser so purchasing a participation
from another Purchaser pursuant to this clause may, to the fullest extent
permitted by law, exercise all its rights of set off with respect to such
participation as fully as if such Purchaser were the direct Purchaser from the
Seller in the amount of such participation. If under any applicable bankruptcy,
insolvency or other similar law, any Purchaser receives a secured claim in lieu
of a set off to which this clause would apply, such Purchaser shall, to the
extent practicable, exercise its rights in respect of such secured claim and
share the benefits thereof in such a manner that the remaining Purchasers will
receive the same benefits as they would otherwise have been entitled to receive
under this clause if a set off had been permitted.
(d) When any payment made pursuant to this Agreement is due on a day
that is not a Business Day, such payment shall be made on the immediately
succeeding Business Day, and such extension of time shall be included in the
computation of interest or fees, as the case may be.
ARTICLE SIX
CONDITIONS OF PURCHASES
Section 6.01. Conditions to Initial Purchase. The obligation of each
Purchaser to make the initial Purchase hereunder on the Closing Date is subject
to the satisfaction of the conditions specified in Section 6.02 and to the
delivery to the Agent of the following:
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(a) certified copies of the articles of incorporation and by-laws of
each of JELD-WEN, the Seller and TRI and certified copies of resolutions adopted
by each of their respective Boards of Directors authorizing the execution,
delivery and performance of the Facility Documents to which such entity is a
party, together with evidence of the authority and specimen signatures of the
individuals who signed this Agreement and the other Facility Documents on behalf
of such entity;
(b) the partnership agreement of Eagle Crest and all amendments
thereto, certified by the general partner of Eagle Crest, together with such
documents authorizing the execution, delivery and performance of the Facility
Documents to which Eagle Crest is a party, together with evidence of the
authority and specimen signatures of the persons signed the Facility Documents
to which Eagle Crest is a party;
(c) certified copies of the articles of incorporation and by-laws of
WorldMark;
(d) a written search report from a Person satisfactory to the Agent
listing all effective financing statements that name the Seller or either of the
originators as "debtor" or "assignor" covering the States of Nevada and Oregon
and such other jurisdictions as the Agent may require, together with copies of
such financing statements; and no such financing statements shall cover any
portion of the Assigned Collateral;
(e) copies of all financing statements on Form UCC-3, with evidence of
filing thereon, releasing the interest of any Person in the Assigned Collateral;
(f) evidence satisfactory to the Agent that the assignment of the
Undivided Interests and the grant of a security interest in the Assigned
Collateral has been duly perfected by the filing of all such UCC financing
statements and the taking of all such other or additional acts as may be
necessary, or in the Agent's opinion, desirable to perfect the ownership
interests of the Purchasers in the Undivided Interests and security interest in
the Assigned Collateral in all jurisdictions, including in the case of the
Mortgage Loan Receivables, the recorded Mortgage Notes, Mortgages and
assignments required pursuant to Section 2.05;
(g) all fees payable to the Agent on or prior to the Closing Date
pursuant to Section 5.01;
(h) the opinions of counsel to the Seller, special Nevada counsel to
the Seller and special Washington counsel to the Seller, each dated the Closing
Date and addressed to the Agent and the Purchasers, substantially in the forms
attached hereto as Exhibits G, G-1 and G-2, respectively;
(i) the opinions of counsel to TRI, special California counsel
to TRI and special Washington counsel to TRI, each dated the
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Closing Date and addressed to the Agent and the Purchasers, substantially in the
forms attached hereto as Exhibits H, H-1 and H-2, respectively;
(j) the opinion of counsel to Eagle Crest, dated the Closing Date and
addressed to the Agent and the Purchasers, substantially in the form attached
hereto as Exhibit I;
(k) the opinions of counsel to JELD-WEN and special Washington counsel
to JELD-WEN, each dated the Closing Date and addressed to the Agent and the
Purchasers, substantially in the forms attached hereto as Exhibits J and G-1,
respectively;
(l) TRENDWEST, inc. shall have been merged with and into JELD-WEN, and
the banks to the JELD-WEN Agreement required to give consent to such merger have
consented to such merger; and
(m) such other documents, certificates and opinions as the Agent or
any Purchaser may reasonably request.
Section 6.02. Conditions to All Purchases. The obligation of each
Purchaser to make any Purchase hereunder (including the initial Purchase) is
subject to the satisfaction of the conditions set forth in Section 2.01 and the
fulfillment of the following further conditions precedent:
(a) a Commitment Termination Date shall not have occurred;
(b) except in the case of a Reinvestment, the Agent shall have
received a duly executed Purchase Notice;
(c) except in the case of a Reinvestment, the Agent shall have
received a certificate from the Master Servicer substantially in the
form attached hereto as Exhibit B hereto (a "Purchase Certificate") one
Business Day prior to the date of such proposed Purchase containing a
calculation of (i) the Net Pool Balance, (ii) the amount of Section
4.04 Deposits which have not yet been disbursed to the Agent pursuant
to Section 4.08(b) and (iii) the Aggregate Net Investment (after giving
effect, on a pro forma basis, to such proposed Purchase);
(d) except in the case of a Reinvestment, the Agent shall have
received an Officer's Certificate of the Seller to the effect that (i)
the representations and warranties of the Seller contained in this
Agreement, any other Facility Document or in any certificates delivered
to the Agent or any Purchaser by or on behalf of the Seller in
connection with such Purchase are true and correct on and as of the
date of such Purchase, with the same force and effect as though made on
and as of such day, and (ii) to the best of the knowledge and
information of such officer, no event has occurred and is continuing,
or would result from such Purchase, that
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constitutes or would constitute an Unmatured Termination Event or
Termination Event; and
(e) the Agent and the Purchasers have received such other
documents, certificates and opinions as the Agent or any Purchaser may
reasonably request.
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES
Section 7.01. Representations and Warranties as to the Seller. The
Seller shall make the following representations and warranties on which the
Agent shall rely in accepting the Receivables on behalf of itself and the
Purchasers and on which the Agent and the Purchasers may rely in making
Purchases. The representations and warranties shall speak as of the date of
execution and delivery of this Agreement, each Transfer Date and on each date on
which a Purchase is made, but in each case shall survive the repayment in full
of all Purchases and Obligations and the termination of this Agreement.
(a) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a corporation in good
standing under the laws of the State of Nevada, 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 and sell the Receivables.
(b) Due Qualification. The Seller 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 Seller.
(c) Power and Authority. The Seller shall have the power and
authority to execute, deliver and perform its obligations under the
Agreement and each other Facility Document to which it is a party and
to carry out their respective terms; the Seller shall have full power
and authority to sell the Receivables to be sold to the Purchasers and
shall have duly authorized such sale by all necessary corporate action;
and the execution, delivery and performance of this Agreement and each
other Facility Document to which it is a party shall have been duly
authorized by the Seller by all necessary corporate action.
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(d) Licenses. The Seller holds, and at all times during the term
of this Agreement will hold, all material licenses, certificates,
franchises and permits from all 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 this Agreement or
any other Facility Document to which it is a party or the validity or
enforceability of any of the Receivables.
(e) Valid Sale; Binding Obligations. This Agreement shall evidence
a valid sale, transfer and assignment of Receivables having an
aggregate Outstanding Principal Balance up to but not exceeding the
Commitment Amount, enforceable against creditors of and purchasers from
the Seller; and shall constitute a legal, valid and binding obligation
of the Seller, enforceable against the Seller 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.
(f) No Violation. The consummation of the transactions
contemplated by, and the fulfillment of the terms of this Agreement and
the other Facility Documents to which the Seller is a party 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 Seller, or
conflict with or violate any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any material indenture, agreement or other instrument to which the
Seller is a party or by which it shall be bound; nor, except as
otherwise provided in this Agreement, 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; nor violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties;
which breach, default, conflict, Lien or violation would have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Seller.
(g) No Proceedings. There are no proceedings or investigations
pending, or to the best knowledge of the Seller, threatened, before any
court, regulatory body, administrative agency or other Governmental
Authority having jurisdiction over the Seller or its properties: (i)
asserting
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the invalidity of this Agreement or any other Facility Document to
which the Seller is a party, (ii) seeking to prevent the consummation
of any of the transactions contemplated by the Facility Documents to
which the Seller is a party or (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
the Seller of its obligations under, or the validity or enforceability
of, such Facility Agreement.
(h) 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
Seller of this Agreement and the other Facility Documents to which it
is a party or in connection with the transactions contemplated hereby
or thereby, except such as have been obtained prior to the date of this
Agreement and are in full force and effect.
(i) Margin and Other Regulations. No use of any funds acquired by
the Seller under this Agreement will conflict with or contravene any of
the Federal Reserve Regulations including, without limitation, Federal
Reserve Regulations G, T, U and X.
(j) Taxes. The Seller has filed all tax returns and reports
required of it and has paid all Taxes which are due and payable and has
provided adequate reserves for payment of any Tax whose payment is
being contested and there are no material questions or disputes between
the Seller and any Governmental Authority with respect to any Taxes.
(k) Investment Company Act. The Seller is not required to be
registered as an "investment company" under in the Investment Company
Act.
(l) Capital Stock. All of the issued and outstanding capital stock
of the Seller has been duly authorized, validly issued and is fully
paid and non-assessable, free and clear of Liens; until any of such
stock has been sold or otherwise disposed of pursuant to Section
9.01(b), 50% of such stock is owned by I&I Holdings with the remaining
shares of capital stock being owned by Composer.
(m) Associations; WorldMark. Each Association and WorldMark shall
have been duly organized and shall be validly existing as a corporation
in good standing under the laws of the state of its incorporation; no
practice, procedure or policy employed by the Association or WorldMark
violates any law, regulation or agreement which, if enforced, could be
reasonably expected to have a material adverse effect on the condition,
financial or otherwise, on the earnings, business affairs or business
prospects of the Association or WorldMark, as the case may be, or
constitute grounds for the revocation
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of any license, charter or permit that is material to its conduct of
business.
Section 7.02. Representations and Warranties as to the Receivables. The
Seller shall make the following representations and warranties as to the
Receivables on which the Agent shall rely in accepting the Receivables on behalf
of itself and the other Purchasers and on which the Agent and the Purchasers may
rely in making Purchases. Except as otherwise provided herein, such
representations and warranties shall speak as of the Transfer Date relating to
each such Receivable, and on each date on which a Purchase is made pursuant to
this Agreement, but in each case shall survive the repayment in full of all
Purchases and Obligations and the termination of this Agreement.
(a) Origination; General Terms and Form. Each Receivable (i) shall
have been originated in the United States by an Originator in the
ordinary course of its business and in accordance with its customary
underwriting and origination criteria, shall have been fully and
properly executed by the parties thereto and shall have been acquired
by the Seller from an Originator pursuant to the related Purchase
Agreement; (ii) shall be assignable, and shall be so assigned, by the
Seller to the Agent; (iii) shall, except as otherwise provided in this
Agreement, provide for level payments of Monthly P&I (provided that (A)
the payment in the first or last month in the life of the Receivable
may be minimally different from the level payment) that fully amortizes
its Original Principal Balance by maturity and provides for a fixed
finance charge or yields a fixed rate of interest at its Receivable
Interest Rate; (iv) shall provide for, in the event that it is prepaid,
a prepayment that fully pays such related Original Principal Balance
and includes accrued but unpaid interest at least through the date of
prepayment in an amount calculated by using an interest rate at least
equal to its Receivable Interest Rate; (v) shall have had a down
payment made by the related obligor in an amount at least equal to 10%
of such Original Principal Balance; (vi) shall be payable in Dollars;
(vii) shall have an original scheduled term of seven years or less if a
Right to Use Receivable or ten years or less if a Mortgage Loan
Receivable; and (viii) shall be substantially in one of the forms
attached hereto as Exhibits C or D.
(b) Compliance with Consumer Protection Laws. Each Receivable
shall have complied at the time it was originated, and shall comply at
the time of making of such repayment and warranty in all material
respects with all requirements of applicable federal, state and local
laws, and regulations thereunder, including usury and consumer
protection laws.
(c) One Original; Enforceability. There is only one original of
each Receivable (and, if such Receivable is a Mortgage Loan Receivable,
one original of the related Mortgage Note and Mortgage) and such
Receivable (and, if such
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Receivable is a Mortgage Loan Receivable, the related Mortgage Note)
shall constitute the genuine, legal, valid and binding payment
obligation in writing of the related Obligor, enforceable by the holder
thereof in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation and
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity.
(d) United States Obligors; No Bankrupt or Governmental
Obligors. To the best knowledge of the Seller, the Obligor is a citizen
or resident of, and making payments from, the "United States" (as such
term is defined in Section 7701(a) (9) of the Code) and the Receivable
is not due from (i) an Obligor who is currently the subject of a
bankruptcy proceeding or is bankrupt or insolvent or (ii) the United
States, any state thereof or any local government or municipality
therein or from any agency, department or instrumentality of the United
States, any state thereof or any local government or municipality
therein.
(e) Employee Obligors. Based on the outstanding Principal Balance,
less than 10% of the Receivables comprising the Receivables Pool have
Obligors who are employees of either Originator, the Seller or any of
their respective affiliates.
(f) Modifications. The Receivable has not been satisfied,
subordinated or rescinded and no provision thereof has been waived in
such a manner that it fails to meet all of the other representations
and warranties with respect to such Receivable, and each such amendment
or waiver has been reduced to writing and has been included in the
related Receivable File.
(g) No Setoffs, Breaches or Unmatured Termination Events. No facts
shall be known to the Seller which would give rise to any right of
rescission, setoff, counterclaim or defense, nor shall the same have
been asserted or threatened, with respect to the Receivable; no
default, breach, violation or event permitting acceleration under the
terms of such Receivable shall have occurred as of the related Cutoff
Date or Transfer Date, as the case may be; no continuing condition that
with notice or the lapse of time would constitute a default or event of
default or breach, violation or event permitting acceleration under the
terms of such Receivable shall have arisen; and the Seller shall not
have waived any of the foregoing.
(h) Title to and Security Interest in Receivables. No provision of
such Receivable shall have been waived, except as provided in clause
(f) above; immediately prior to the transfer and assignment of such
Receivable, the Seller had good and marketable title to such Receivable
free and clear of Liens (other than Permitted Encumbrances on the
related
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Mortgaged Property if such Receivable is a Mortgage Loan Receivable and
Liens of WorldMark in the case of Right to Use Receivables) or rights
of others; immediately upon the transfer and assignment thereof, the
Agent for the benefit of the Purchasers, shall have good and marketable
title to such Receivable, free and clear of all Liens (other than
Permitted Encumbrances on the related Mortgaged Property if such
Receivable is a Mortgage Loan Receivable and Liens of WorldMark in the
case of Right to Use Receivables) and rights of others; all filings and
recordings (including UCC filings) necessary in any jurisdiction to
give the Agent a first priority perfected security interest in the
Receivable (and, if such Receivable is a Mortgage Loan Receivable, in
the related Mortgage Note) shall have been made; and the Agent's
security interest in such Receivable (and, if such Receivable is a
Mortgage Loan Receivable, in the related Mortgage Note) is and will be
prior to any Lien (including, without limitation, any Lien of any
homeowners' association or condominium association) on, or other
interests relating to, such Receivable (and, if such Receivable is a
Mortgage Loan Receivable, in the related Mortgage Note) except for (i)
such Liens and claims which have been satisfied or otherwise released
in full as of the related Transfer Date, (ii) Liens for municipal or
other local taxes if such taxes shall not at the time be due and
payable or if the Seller shall currently be contesting the validity of
such taxes in good faith by appropriate proceedings, (iii) if such
Receivable is a Mortgage Loan Receivable, Permitted Encumbrances on the
related Mortgaged Property and (iv) if such Receivable is a Right to
Use Receivable, Liens of WorldMark.
(i) No Adverse Selection. In connection with the transactions
contemplated by this Agreement and the Purchase Agreements, the
Receivables meet the criteria set forth in this Section and no
selection procedures adverse to the interests of the Agent and the
Purchasers were used in connection with such selection.
(j) Schedule of Receivables. The information set forth in the
related Schedule of Receivables with respect to such Receivable shall
be true and correct in all material respects.
Section 7.03. Additional Representations and Warranties as to the
Mortgage Loan Receivables. In addition to the representations and warranties in
Section 7.02, the Seller shall make the following representations and warranties
on which the Agent shall rely in accepting the Receivables that are Mortgage
Loan Receivables on behalf of itself and the Purchasers and on which the Agent
and the Purchasers may rely in making Purchases. The representations and
warranties shall speak as of each Transfer Date and on each date on which a
Purchase is made, but in each case shall survive the repayment in full of all
Purchases and Obligations and the termination of this Agreement.
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(a) Characterization of Interest. The timeshare estate mortgaged
by the related obligor constitutes a fee interest in real property at
Eagle Crest; the related Mortgage has been duly filed and recorded with
all appropriate Governmental Authorities in all jurisdictions in which
such Mortgage is required to be filed and recorded to create a valid,
binding and enforceable first Lien on the related Mortgaged Property
and such Mortgage creates a valid, binding and enforceable first Lien
on such Mortgaged Property; Eagle Crest, to the extent applicable, is
in compliance with all permitted encumbrances respecting the right to
the use of such Mortgaged Property; each of the assignment of such
Mortgage from the Seller to the Agent and each related endorsement of
the Mortgage Note constitutes an endorsement of the Seller, of such
Mortgage and Mortgage Note, and all monies due or to become due
thereunder, and all proceeds thereof; and the execution and delivery of
an Assignment of such Mortgage from the Seller to the Agent (and the
recording thereof in the appropriate jurisdictions), and the
endorsement and delivery of such Mortgage Note by the Seller,
constitute all actions required to be taken by the Seller to fully
perfect the ownership interest of the Agent in such Mortgage and
Mortgage Note.
(b) Title to Mortgaged Property; Disbursement of Receivable
Proceeds. At the related Origination Date, the Obligor had good and
marketable fee simple title to the related Mortgaged Property, free and
clear of all Liens, except for Permitted Encumbrances, and the proceeds
of such Mortgage Loan Receivable have been fully disbursed.
(c) The Mortgages Generally. The related Mortgage contains
customary and enforceable provisions so as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the benefits of the security
interests intended to be provided thereby, including by judicial
foreclosure; there is no exemption available to the related obligor
which would interfere with the mortgagee's right to foreclose such
Mortgage, other than that which may be available under applicable
bankruptcy, debt relief or homestead statutes; any applicable
intangibles taxes and documentary sales taxes have been paid; and such
Mortgage gives the mortgagee the right to receive and direct the
application of insurance and condemnation proceeds received in respect
of such Mortgaged Property.
(d) The Mortgage Notes Generally. The related Mortgage Note is not
and has not been secured by any collateral except the Lien of the
related Mortgage; the amount financed by such Mortgage Note did not
include any portion of the related downpayment or homeowners'
association payments; such Mortgage Note does not by its terms provide
for the capitalization of interest or the forbearance of interest; any
applicable
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intangibles taxes and documentary sales taxes have been paid; and such
Mortgage Note evidences a fully amortizing debt obligation which bears
a fixed rate of interest, provides for level monthly payments of
principal and interest and is payable in Dollars.
(e) Forms of Mortgage Notes and Mortgages. The related Mortgage
and Mortgage Note are substantially in one of the forms set forth as
Exhibit D hereto.
(f) No Impairment of Insurance Coverage. The Seller has not taken
(or omitted to take), and has no notice that the related Obligor has
taken (or omitted to take), any action that would impair or invalidate
the coverage provided by any hazard, title or other insurance policy
relating to such Mortgage Loan Receivable or the related Mortgaged
Property.
(g) Assignability of Mortgaged Property. The related Mortgaged
Property is assignable to and by the mortgagee without the consent of
the related Association or any other Person and there are no other
restrictions on resale thereof (other than the obligation to notify
such homeowners' association of any such assignment).
(h) Associations. Eagle Crest manages, through Country Club
Management, Inc., the related Mortgaged Property and performs services,
pursuant to a management agreement between Eagle Crest and the related
Association which is in full force and effect and a copy of which has
been delivered to the Agent; and to the best knowledge of the Seller,
all obligations under such agreement have been performed and there is
no material default under such agreement.
(i) Insurance; Damage to Project. The Project in which the related
Mortgaged Property is located is insured through the related
homeowners' association in the event of fire or other casualty for the
full replacement value thereof, and in the event that such Mortgaged
Property should suffer any loss covered by casualty or other insurance,
upon receipt of any insurance proceeds such homeowners' association is
required, during the time such Mortgaged Property is covered by such
insurance, under its applicable governing instruments either to repair
or rebuild the portions of the project in which such Mortgaged Property
is located or to pay such proceeds to the holder of the related
Mortgage secured by a timeshare estate in the portions of the Project
in which such Mortgaged Property is located; and such Project is not
located in a designated flood plain.
(j) No Amounts Outstanding. There are no delinquent or unpaid
taxes, ground rents, water charges, sewer rents, assessments
outstanding with respect to the related Mortgaged Property, nor any
other material outstanding Liens other than Permitted Encumbrances
affecting such Mortgaged Property that
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would materially affect the interests of the Purchasers in the related
Mortgage Loan Receivable.
(k) No Damage. To the best knowledge of the Seller, the related
Mortgaged Property and the Project in which such Mortgaged Property is
located is in good repair and condition, excepting ordinary wear and
tear, and waste and there is no proceeding pending or threatened for
the total or partial condemnation or taking of such Mortgaged Property
or any part of such Project by eminent domain.
(l) Recreational Facilities. The portions of the Project in which
the related Mortgaged Property which represents the recreational
facilities are in good repair and condition, ordinary wear and tear
excepted.
(m) No Rights of Partition. Neither the Mortgagor nor any other
Person has the right, by statute, contract or otherwise, to seek the
partition of the Mortgaged Property, except for failed timeshare
provisions under Section 94.775 of the Oregon Revised Statutes.
(n) Compliance with Laws. The Project in which the related
Mortgaged Property is located is in compliance with any applicable
zoning, building or environmental law or regulation and all
inspections, licenses, special use permits and certificates required,
whether by law, regulation or insurance standards to be made or issued
with respect to the Project and with respect to the use and occupancy
of the same for the purpose for which it is currently used, including
but not limited to certificates of occupancy and fire underwriting
certificates, have been made or issued by the appropriate governmental,
quasi-governmental or other authorities; neither the Seller nor Eagle
Crest has received notice of any outstanding violations (i) of the
Department of Environmental Quality Water Pollution Control Facility
permit, (ii) with respect to the operation of the septic tank system or
(iii) of any material legal requirement with respect to the use and
occupancy of the Project; neither the Seller nor Eagle Crest has
received notice from the Department of Environmental Quality Central
Region office, Deschutes County agencies or any other governmental
agency of any spills or releases of, or the presence of, hazardous
substances on the Project and neither the Seller nor Eagle Crest has
knowledge of any such hazardous substances; and the Project has been
completed within the meaning of any applicable state statute.
(o) Compliance as to Environmental Matters. The Project in which
the related Mortgaged Property is located is in compliance with all
environmental laws, ordinances, rules, regulations and orders of
federal and state governmental authorities relating thereto; the
Project is not now and has never been used to generate, manufacture,
refine, transport, treat, store, handle, dispose, transfer, produce,
process or
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in any manner deal with gasoline, petroleum products, explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous
or toxic substances, polychlorinated biphenyls or related or similar
materials, asbestos or any material containing asbestos, or any other
substance or material as may be defined as a hazardous or toxic
substance by any Federal, state or local environmental law, ordinance,
rule or regulation which might reasonably be expected to have a
material adverse impact on the Project or constitute grounds for the
revocation of any license, charter, permit or registration which is
material to the continued operation of the Project.
Section 7.04. Repurchase Upon Breach; Optional Repurchase.
(a) Each of the parties hereto shall inform the other parties promptly,
in writing, upon the discovery of any breach of the Seller's representations and
warranties pursuant to Sections 7.02 or 7.03 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 Seller shall repurchase
such Receivable. 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 2.05(a) (iv) or a recorded
assignment of mortgage with evidence of recording thereon to or upon the order
of the Agent, the Seller shall repurchase the related Mortgage Loan Receivable.
If necessary, the Seller shall enforce the obligation of the related originator
under the related Purchase Agreement to repurchase any such Receivable required
to be repurchased as described above. In consideration of the purchase of any
such Receivable, the Seller shall remit an amount equal to the Purchase Amount
to the Master Servicer. The sole remedy of the Agent, acting on behalf of the
Purchasers, with respect to a breach of the foregoing representations and
warranties which materially and adversely affects any Receivable shall be to
require the Seller to repurchase Receivables pursuant to this Section and to
enforce the related Originator's obligation to the Seller to repurchase such
Receivable pursuant to the related Purchase Agreement.
(b) In connection with any transfer of ownership of a Mortgaged
Property by the related Obligor, the Seller may, if the Master Servicer is
required to enforce a due-on-sale clause contained in the related Mortgage Note,
in its discretion, repurchase the related Mortgage Loan Receivable in order to
avoid the required enforcement of such due-on-sale clause. In consideration of
the purchase of any such Mortgage Loan Receivable, the Seller shall remit an
amount equal to the Purchase Price to the Master Servicer.
(c) Upon the payment by the Seller of the Purchase Price for any
Receivable repurchased pursuant to Section 7. 04 (a) or 7. 04 (b) , the Agent
shall deliver to the Seller such instruments as may be necessary to assign and
transfer, without recourse or warranty
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of any kind, such Receivable and the Related Security and Receivable Documents.
Section 7.05. Representations and Warranties as a Whole. This
Agreement, the other Facility Documents and all other instruments, documents,
certificates and statements furnished to the Agent or any Purchaser by the
Seller or on the Seller's behalf pursuant to the Facility Documents, taken as a
whole, do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements contained herein or
therein not misleading.
ARTICLE EIGHT
AFFIRMATIVE COVENANTS
Section 8.01. Affirmative Covenants of the Seller. From the date hereof
until the first day following the Commitment Termination Date on which (i) the
Aggregate Undivided Interest shall be reduced to zero and (ii) all Obligations
shall have been finally paid and performed, the Seller shall do all of the
following unless the Agent (acting upon the direction of the Required
Purchasers) shall otherwise consent in writing:
(a) The Seller shall comply with all applicable laws, rules,
regulations and orders that are material to it, including but not
limited to all applicable laws, rules, regulations and orders with
respect to the Assigned Collateral 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.
(b) The Seller shall preserve and maintain its corporate
existence, rights, franchises and privileges in the State of Nevada,
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, after receipt
of at least three days' prior notice from the Agent or the related
Purchaser, the Seller shall permit 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 Seller and (ii) to visit the offices and properties of
the Seller for the purpose of examining such materials and to discuss
matters relating to the Receivables, its performance under any Facility
Document or its affairs, finances and accounts generally with any of
its officers, directors or employees.
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(d) The Seller shall maintain and implement or cause to be
maintained and implemented administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing the Receivables and the Receivable Documents in the event of
the destruction of the originals thereof), and keep and maintain or
cause to be kept and maintained (i) all documents, books, records and
other information reasonably necessary or advisable for the collection
of the Receivables (including, without limitation, records adequate to
permit the daily identification of each new receivable and all
Collections of and adjustments to each existing Receivable) and (ii)
adequate records and books of account in which complete entries will be
made in accordance with generally accepted accounting principles,
consistently applied, reflecting all financial transactions of the
Seller.
(e) The Seller shall (i) keep its principal place of business and
its chief executive office at the address set forth in Section 15.05
unless it shall have provided 60 days' prior written notice of any
intended move to the Agent, (ii) maintain a fiscal year ending on
December 31 and shall not make any significant change in accounting
policies or reporting practices other than changes required by
generally accepted accounting principles or otherwise required by law
and (iii) comply in all material respects with the Credit and
Collection Policy in connection with each Receivable, and each
Receivable Document related thereto.
(f) The Seller will deliver to the Agent (i) as soon as reasonably
possible and in any event within 60 days after the close of each fiscal
quarter (90 days after the close of the fourth quarter), its in-house
prepared (A) balance sheet as at the end of such fiscal quarter setting
forth in comparative form the corresponding figures as at the end of
the preceding fiscal quarter, and (B) the statement of income, for such
fiscal quarter setting forth in comparative form the corresponding
figures for the previous fiscal quarter, with transactions and account
balances accounted for in conformity with generally accepted accounting
principles applied on a basis consistent with that of the preceding
quarter or containing disclosure of the effect on financial position or
results of operations of any change in the application of accounting
principles during the quarter, together with an officer's Certificate
certifying as to such financial statements and that the signer thereof
has obtained no knowledge of any Unmatured Termination Event or
Termination Event; (ii) as soon as reasonably possible and in any event
within 120 days after the close of each fiscal year, the consolidated
(A) balance sheet of the Seller, as at the end of such fiscal year
setting forth in comparative form the corresponding figures at the end
of the preceding fiscal year, and (B) statements of income, retained
earnings and changes in financial position for such fiscal year of the
Seller setting forth in comparative form the corresponding figures for
the
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previous fiscal year, prepared in conformity with generally accepted
accounting principles applied on a basis consistent with that of the
preceding year or containing disclosure of the effect on financial
position or results of operations of any change in the application of
accounting principles during the year which consolidated balance sheet
and income statements shall be accompanied by an unqualified report and
opinion of independent public accountants of recognized standing
approved by the Agent, which report and opinion shall be in accordance
with generally accepted auditing standards relating to reporting or, if
qualified, the opinion shall not be qualified due to any limitation in
scope of the examination or due to any departure from any generally
accepted accounting principles, and shall be accompanied by a statement
of such accountants that, in making the audit necessary for the
certification of such financial statements and such report, such
accountants have obtained no knowledge of any Unmatured Termination
Event or Termination Event or under any other evidence of indebtedness
or, if in the opinion of such accountants any such Unmatured
Termination Event or Termination Event shall have occurred and be
continuing, shall include a statement as to the nature and status
thereof; and (iii) such other information as the Agent or any Purchaser
may reasonably request.
(g) Promptly after learning thereof, the Seller will notify the
Agent of (i) the details of any action, proceeding, investigation or
claim against or affecting the Seller instituted before any court,
arbitrator or Governmental Authority or, to the Seller's knowledge
threatened to be instituted, which, if determined adversely would be
likely to have a material adverse effect on (A) the performance by the
Seller, any of TRI, Eagle Crest or the Master Servicer of their
respective obligations under any Facility Document, (B) the validity or
enforceability of any Facility Document, (C) the validity or
enforceability of any Receivable (or any Receivable Document related
thereto), (D) the Purchaser, first priority security interest in the
Assigned Collateral or (E) the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Seller,
TRI, Eagle Crest, WorldMark or the Master Servicer and (ii) the
occurrence of any Unmatured Termination Event or Termination Event.
(h) From time to time, the Seller will (i) pay or reimburse the
Agent for all expenses, including legal fees, incurred by the Agent in
connection with the preparation of this Agreement and the other
Facility Documents, the making of any Purchase, and the perfection of
the Purchasers, interests in the Assigned Collateral; (ii) obtain and
promptly furnish to the Agent evidence of all such government approvals
as may be required to enable the Seller to comply with its obligations
under the Facility Documents; (iii) execute and deliver all such
instruments (such as UCC continuation
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statements) and perform all such other acts as may be necessary to
maintain the Purchasers, interests continuously perfected as a first
priority interest in the Assigned Collateral; (iv) execute and deliver
all such other instruments and perform all such other acts as the Agent
or any Purchaser may reasonably request to carry out the transactions
contemplated by this Agreement and the other Facility Documents; and
(v) comply in all material respects with the Seller's obligations under
the Facility Documents and not take any action which would permit or
cause the Seller, the Master Servicer or any Subservicer to have the
right to refuse to perform any of their respective obligations under
any Facility Documents.
(i) The purpose of the Seller shall be limited to the following
purposes, and activities incident to and necessary or convenient to
accomplish the following purposes: (i) to acquire, own, hold, sell,
transfer, assign, pledge, finance, refinance and otherwise deal with,
timeshare receivables similar to the Receivables; (ii) to authorize,
issue, sell and deliver one or more series of obligations, consisting
of one or more classes of certificates that are collateralized by or
evidence an interest in such timeshare receivables or to engage in
transactions similar to the transactions contemplated by this
Agreement; and (iii) to negotiate, authorize, execute, deliver and
assume the obligations or any agreement relating to the activities set
forth in clauses (i) and (ii) above, including but not limited to any
pooling and servicing agreement, indenture, reimbursement agreement,
credit support agreement, receivables purchase agreement, receivables
transfer agreement or private placement agreement or to engage in any
lawful activity which is incidental to the activities contemplated by
any such agreement.
(j) The Seller will deliver to the Agent copies of the annual
financial statements of each Association and WorldMark within 120 days
of each fiscal year end.
(k) The Seller will within ten Business Days following an Interest
Rate Cap Date obtain Interest Rate Protection.
Section 8.02. Affirmative Covenants of JELD-WEN. From the date hereof
until the first day following the Commitment Termination Date on which (i) the
Aggregate Undivided Interest shall be reduced to zero and (ii) all Obligations
shall have been fully paid and performed, JELD-WEN shall, unless the Agent
(acting upon the direction of the Required Purchasers) shall otherwise consent
in writing, notify the Agent if JELD-WEN or any of its Subsidiaries allows their
respective obligations under ERISA to become delinquent.
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ARTICLE NINE
NEGATIVE COVENANTS
Section 9.01. Negative Covenants of the Seller. From the date hereof
until the first day following the Commitment Termination Date on which (i) the
Aggregate Undivided Interest shall be reduced to zero and (ii) all obligations
shall have been finally paid and performed, unless the Agent (acting upon the
direction of the Required Purchasers) shall otherwise consent in writing:
(a) The Seller shall not, except as otherwise provided herein,
(i) sell, transfer, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Lien upon or
with respect to any Assigned Collateral (other than Permitted
Encumbrances on the Mortgaged Properties in the case of Mortgage Loan
Receivables and Liens of WorldMark in the case of Right to Use
Receivables) or any other property now owned or hereafter acquired by
the Seller (other than Liens arising by operation of law or arising in
connection with court proceedings), except that the Seller can sell,
assign or otherwise dispose of the 1,250,000 shares of Xxxxxxxx'x, Inc.
common stock owned by the Seller on the Closing Date, (ii) assign any
right to receive any income or proceeds in respect thereof or (iii)
create, incur, assume or cause to exist any indebtedness, whether
current or funded, or any liability other than (A) liabilities payable
to the Purchasers or the Originators with respect to the Subordinated
Notes, (B) liabilities for services supplied or furnished to the Seller
including, but not limited to, the reasonable fees of accountants,
attorneys or other professionals required by the Seller for the normal
operation of its business, and (C) liabilities payable to JELD-WEN in
respect of items described in clause (B) above, payments in respect of
which shall be subordinated to amounts owed by the Seller under this
Agreement.
(b) The Seller shall not (i) issue any additional shares of
its capital stock to any Person other than JELD-WEN or any affiliate
thereof, (ii) permit the transfer, sale or pledge of any shares of its
outstanding capital stock to any Person other than JELD-WEN or an
affiliate thereof or (iii) amend its articles of incorporation or
bylaws.
(c) Notwithstanding the provisions of clause (b), so long as
no Unmatured Termination Event or Termination Event has occurred and is
continuing, the Seller can (i) on or prior to January 31, 1994, declare
and pay dividends on any class of its capital stock, (ii) after January
31, 1994 pay dividends on its outstanding shares of Class A common
stock so long as the amount of such dividends do not exceed 12% per
annum or $480,000 and (iii) make payments in respect of the
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Subordinated Notes and other liabilities permitted under clause (a)
above.
(d) The Seller shall not (i) engage in any business or
activity other than those permitted by Section 8.01(j) , (ii) make any
material change in the character of its business, enter into a new
business, enter into any material agreement other than as contemplated
by the Facility Documents or (iii) merge or consolidate with any other
corporation, company or entity or sell all or substantially all of its
assets or acquire all or substantially all of the assets or capital
stock or other ownership interest of any other corporation, company or
entity.
(e) The Seller shall not, except as described in clause (c)
(iii) above, (i) make loans to any Person, (A) advance credit or enter
into any agreement whereby the Seller is contingently liable for the
debts of another, (iii) guarantee the indebtedness of other parties or
(iv) make capital expenditures.
(f) The Seller shall not, without the affirmative vote of a
majority of the members of its Board of Directors (which must include
the affirmative vote of all duly appointed Independent Directors) , (i)
dissolve or liquidate, in whole or in part, or institute proceedings to
be adjudicated bankrupt or insolvent, (ii) consent to the institution
of bankruptcy or insolvency proceedings against it, (iii) file a
petition seeking or consent to reorganization or relief under any
applicable federal or state law relating to bankruptcy, (iv) consent to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Seller or a substantial
part of its property, (v) make a general assignment for the benefit of
creditors, (vi) admit in writing its inability to pay its debts
generally as they become due or (vii) take any corporate action in
furtherance of the actions set forth in clauses (i) through (vi) above;
provided, however, that no director may be required by any shareholder
of the Seller to consent to the institution of bankruptcy or insolvency
proceedings against the Seller so long as it is solvent.
Section 9.02. Negative Covenants of JELD-WEN. From the date hereof
until the first day following the Commitment Termination Date on which (i) the
Aggregate Undivided Interest shall be reduced to zero and (ii) all Obligations
shall have been finally paid and performed, unless the Agent (acting upon
direction of the Required Purchasers) shall otherwise consent in writing:
(a) JELD-WEN shall not, except as otherwise provided herein,
sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Lien upon or with respect to any
of the capital stock of I&I
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Holdings, its general partnership interest in Eagle Crest or the
capital stock of TRI.
(b) JELD-WEN shall not allow its payment or funding obligations
under ERISA to become delinquent.
(c) JELD-WEN shall not allow either of the originators to (i)
make any material change in the character or conduct of their
respective businesses as they are conducted as of the Closing Date or
enter into any new businesses, (ii) make any change in their respective
corporate or partnership forms or (iii) sell, pledge, assign or
otherwise transfer any shares of stock or limited or general
partnership interests, as the case may be, in their respective
corporation or partnership to any Person other than JELD-WEN or any
affiliate thereof.
ARTICLE TEN
SERVICING, ADMINISTRATION AND COLLECTIONS
Section 10.01. Designation of Master Servicer.
(a) The servicing, administering and collection of the Receivables
shall be conducted by the Master Servicer designated from time to time in
accordance with this Section. Until the Agent (acting upon the direction of the
Required Purchasers) gives notice (the "Successor Notice") to the Seller and the
Master Servicer of the designation of a new Master Servicer, JELD-WEN is hereby
designated as, and hereby agrees to perform the duties and obligations of,
Master Servicer in accordance with the terms of this Agreement. The Agent and
the Purchasers agree not to provide the Seller and the Master Servicer with a
Successor Notice unless(i)a Termination Event shall have occurred and be
continuing or (ii) the Seller or the Master Servicer, as the case may be, shall
fail to perform or observe any term, covenant or agreement contained in Sections
8.01, 8.02, 9.01 or 9.02 or this Article and such failure shall remain
unremedied for five Business Days after written notice thereof shall have been
given to the Seller and the Master Servicer by the Agent.
(b) Upon receipt of a Successor Notice or upon resignation of the
Master Servicer pursuant to Section 10.01(c), the Master Servicer will take such
actions as are necessary to best facilitate the transition of the performance of
the Master Servicer's activities to the new Master Servicer and the Seller and
Master Servicer shall use their best efforts to assist the new Master Servicer
to assume and perform the duties of the Master Servicer hereunder. Without
limiting the foregoing, the Master Servicer agrees that:
(i) the Agent may direct any Obligors to make payment of all
amounts payable under any Receivables directly to the Agent or the new
Master Servicer or through the Lock Box Network;
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(ii) the Master Servicer shall, at the Agent's request and at
the Master Servicer's expense, give notice of the Purchasers' ownership
of the Receivables to each Obligor and direct that payments be made
directly to the Agent or the new Master Servicer or through the Lock
Box Network;
(iii) the Master Servicer shall, at the Agent's request, (A)
assemble all of the documents, instruments and other records
(including, without limitation, computer programs, tapes and disks) in
its possession which evidence the Receivables, the related Receivable
Documents and the Related Security, or which are otherwise necessary or
desirable to collect such Receivables, and shall make the same
available to the Agent or the new Master Servicer at a place selected
by the Agent, (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections in a manner
acceptable to the Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly indorsed or with duly executed
instruments of transfer, to the Agent, the new Master Servicer or the
Collection Account and (C) permit any successor Master Servicer and its
agents, employees and assignees access to its facilities and its books,
records, documents and instruments (including, without limitation,
computer programs, tapes and disks) related to the Receivables; and
(iv) the Agent or any new Master Servicer is authorized to take
any and all steps in the Seller's name and on behalf of the Seller
necessary or desirable, in the Agent's determination, to collect all
amounts due under the Receivables (including, in the case of the
Mortgage Loan Receivables, amounts due under the related Mortgage
Notes), including, without limitation, indorsing the Seller's name on
checks and other instruments representing Collections and enforcing
such Receivables and the related Receivable Documents.
(c) The Master Servicer's authorization to act as servicer of the
Receivables under this Agreement shall terminate on the first day following the
Commitment Termination Date on which (i) the Aggregate Undivided Interest shall
be reduced to zero and (ii) all Obligations shall have been fully paid and
performed.
(d) The Master Servicer acknowledges that the Agent and the Purchasers
have relied on the Master Servicer's agreement to act as the initial Master
Servicer hereunder in their respective decisions to execute and deliver the
Facility Documents. The Master Servicer agrees not to resign as Master Servicer
and that until any Successor Notice shall have been delivered to the Master
Servicer, the Master Servicer shall continue to perform all of the duties of the
Master Servicer hereunder unless it shall have determined that the performance
of such duties shall no longer be permitted by applicable law.
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Section 10.02. Duties of the Master Servicer; Subservicers.
(a) The Master Servicer, acting alone and/or through one or more
Subservicers as provided in this Section, shall, as agent for the Agent and the
Purchasers, manage, service, administer and make collections on or in respect of
the Receivables. The Master Servicer agrees that its servicing of the
Receivables shall be carried out in accordance with customary and usual
procedures of institutions which service unsecured timeshare receivables and
timeshare receivables secured by mortgages and, to the extent more exacting, the
procedures used by the Master Servicer in respect of the foregoing timeshare
receivables serviced by it for its own account. The duties of the Master
Servicer shall include collection and posting of all payments, responding to
inquiries of Obligors on the Receivables, investigating delinquencies, sending
payment coupons to Obligors, reporting tax information to Obligors, accounting
for collections and furnishing monthly statements to the Agent and the
Purchasers substantially in the form of Exhibit E hereto, which statements shall
be delivered no later than the Settlement Date in each month. The Master
Servicer shall have, subject to the terms of this Agreement, full power and
authority, acting alone, and subject only to the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with such
managing, servicing, administration and collection that it may deem necessary or
desirable. Without limiting the generality of the foregoing, but subject to the
other provisions of this Agreement, the Master Servicer is authorized and
empowered by the Agent, acting on behalf of the Purchasers, to execute and
deliver, on behalf of itself, the Agent, the Purchasers or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all comparable instruments, with respect to the Receivables
and, in the case of Mortgage Loan Receivables, the related Mortgaged Properties.
The Agent shall furnish the Master Servicer any powers of attorney or other
documents necessary or appropriate to enable the Master Servicer to carry out
its servicing and administrative duties hereunder.
(b) The Master Servicer may enter into Subservicing Agreements with one
or more Subservicers approved by the Agent for the servicing and administration
of certain of the Receivables. The Master Servicer shall notify the Agent
promptly if a Subservicer is hired. References in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Receivables include
actions taken or to be taken by a Subservicer on behalf of the Master Servicer
and the Agent. Each Subservicing Agreement will be upon such terms and
conditions as are not inconsistent with this Agreement and as the Master
Servicer and the Subservicer have agreed. With the approval of the Master
Servicer and the Agent, a Subservicer may delegate its servicing obligations to
third-party servicers, but such Subservicer will remain obligated under the
related Subservicing Agreement. The Master Servicer and a Subservicer may enter
into amendments thereto or different forms of Subservicing Agreements; provided,
however, that
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any such amendments or different forms shall be consistent with and not violate
the provisions of this Agreement or materially adversely affect the rights of
the Agent or the Purchasers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the related Subservicer, the Master Servicer
shall either act directly as servicer of the related contract or enter into a
Subservicing Agreement with a successor Subservicer approved by the Agent which
will be bound by the terms of the related Subservicing Agreement.
Notwithstanding any Subservicing Agreement, any of the provisions of
the Agreement relating to agreements or arrangements between the Master Servicer
or a Subservicer or reference to actions taken through such Persons or
otherwise, the Master Servicer shall remain obligated and liable to the Agent
and the Purchasers for the servicing and administering of the Receivables in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from a Subservicer and to the same
extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Receivables. The Master Servicer shall be
entitled to enter into any agreement with a Subservicer for indemnification of
the Master Servicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification.
Any Subservicing Agreement that may be entered into and any other
transactions or servicing arrangements relating to the Receivables involving a
Subservicer or an affiliate of the Master Servicer in its capacity as such shall
be deemed to be between the Subservicer or other affiliate of the Master
Servicer, as the case may be, and the Master Servicer alone, and the Agent and
the Purchasers shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer
except as set forth in the immediately succeeding paragraph; provided that the
Agent and the Purchasers may rely upon all representations and warranties of the
Subservicer contained therein.
In the event the Master Servicer shall for any reason no longer be a
servicer of the Receivables (including, but not limited to, by reason of a
Termination Event), the Agent or its designee may, at the sole discretion of the
Agent, thereupon assume all of the rights and obligations of such Master
Servicer under each Subservicing Agreement selected by the Agent in its sole
discretion. In such event, the Agent, its designee or the successor servicer for
the Agent shall be deemed to have assumed all of the Master Servicer's interest
therein and to have replaced
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the Master Servicer as a party to each such Subservicing Agreement to the same
extent as if such Subservicing Agreement had been assigned to the assuming party
except that the Master Servicer shall not thereby be relieved of any liability
or obligations under the Subservicing Agreement. The Master Servicer shall, upon
request of the Agent but at the expense of the Master Servicer, deliver to the
assuming party all documents and records relating to each such Subservicing
Agreement and the Receivables then being serviced and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreement to the assuming
party.
The Master Servicer shall retain all data (including, without
limitation, computerized records) relating directly to or maintained in
connection with the servicing of the Receivables at the address of the Master
Servicer set forth in Section 15.05, at one of the addresses listed on Schedule
5 hereto, at the office of any Subservicer or, upon 15 days, notice to the
Agent, at such other place where the servicing offices of the Master Servicer
are located, and shall give the Agent access to all data at all reasonable
times, and, during the continuation of a Termination Event, the Master Servicer
shall, on demand of the Agent, deliver or cause to be delivered to the Agent all
data (including, without limitation, computerized records and, to the extent
transferable, related operating software) necessary for the servicing of the
Receivables and all monies collected by it and required to be deposited in or
credited to the Collection Account.
(c) The Master Servicer may, from time to time and with the consent of
the Agent, make changes to the Credit and Collection Policies, provided that no
such change can materially impair the collectibility of any Receivable. Copies
of each such revised Credit and Collection Policies shall replace the version
existing as Schedule 1 or 2, as the case may be.
(d) All expenses incurred by the Master Servicer, including expenses
incurred by any Subservicer, in performing their obligations hereunder shall be
for the account of the Master Servicer, and the Purchasers and the Agent shall
have no obligations to make any payments in respect thereof.
(e) No later than one Business Day prior to each Settlement Date, the
Master Servicer shall prepare and forward to the Agent by telecopier and to each
Purchaser by overnight courier service for delivery on the next immediately
succeeding Business Day, a settlement certificate, certified by an officer of
the Master Servicer, substantially in the form attached hereto as Exhibit E.
Section 10.03. Collection Responsibilities; Receivable Modifications.
(a) The Master Servicer shall, on behalf of the Agent, collect all
payments made under each Receivable and shall use its reasonable efforts to
collect from each Obligor all payments on or
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in respect of such Receivable after the related Cutoff Date. The Master Servicer
may in its discretion waive any assumption fees, late payment charges, charges
for checks returned for insufficient funds, prepayment fees, if any, or other
fees which may be collected in the ordinary course of servicing the Receivables.
Notwithstanding anything to the contrary in this Agreement, neither the Master
Servicer nor the Agent shall modify, waive or amend the terms of any Mortgage
Loan Receivable unless a default thereon has occurred or is imminent or unless
such modification, amendment or waiver shall not (i) alter the interest rate on,
the principal amount of, or the timing of payments of interest and principal in
respect of, such Mortgage Loan Receivable, (ii) materially impair the related
Mortgaged Property or (iii) reduce materially the likelihood that payments of
interest and principal on such Mortgage Loan Receivable shall be made when due;
provided, however, that the Master Servicer shall not reschedule the payment of
delinquent payments more than one time in any 12 consecutive months with respect
to any Obligor.
(b) Subject to Section 4.03, the Master Servicer shall remit, by any
commercially acceptable method, to the appropriate party the portion of such
payments representing Miscellaneous Payments, it being understood that such
Miscellaneous Payments may be retained by the Master Servicer or applied on
behalf of obligors, as the case may be; provided, that the Master Servicer shall
remit portions of Miscellaneous Payments constituting homeowners' association
fees and condominium association fees to the related condominium association or
the related homeowners' association, as the case may be.
Section 10.04. Maintenance of Insurance.
(a) The Master Servicer shall maintain or cause the related Association
to maintain fire insurance with extended coverage on the Project in an amount
which is at least equal to the replacement cost of the improvements which are a
part of such Project, but in no event less than such amount as is necessary to
avoid the application of any co-insurance clause in the related hazard insurance
policy. It is understood and agreed that no earthquake, flood or other
additional insurance is to be required of any Obligor or the Association other
than pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
The Master Servicer agrees to prepare and present, or cause the
Association to prepare and present, claims under each insurance policy
maintained pursuant to this Section in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
enable the Association or the Master Servicer, as appropriate, to receive
payment or to permit recovery thereunder and to restore and repair the Project
and the Mortgaged Property. Each insurance policy maintained under this Section
shall be issued by an issuer with a General Policy Rating of "A" or better in
Best's Key Rating Guide.
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(b) The Master Servicer shall cause each Subservicer and any successor
Subservicers to keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions in the operation of such
Subservicer's procedures, and a fidelity bond. Such policy or policies and
fidelity bond shall be in such form and amount that would meet the requirements
of FHLMC if it were the purchaser of the Mortgage Loans and the Subservicer were
servicing and administering the Mortgage Loans for FHLMC. In the event any
Subservicing Agreement is terminated and the Master Servicer does not enter a
Subservicing Agreement with a successor Subservicer, the Master Servicer shall
obtain a policy or policies of insurance covering errors and omissions in the
operation of the Master Servicer's procedures and fidelity bond in such form and
amount as specified in the immediately preceding sentence. The Master Servicer
shall be deemed to have complied with this provision if an affiliate of the
Master Servicer has such errors and omissions and fidelity bond coverage and, by
the terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to the Master Servicer. Any such errors and omissions policy
and fidelity bond shall not be cancelled without 30 days' prior written notice
to the Agent.
(c) The Master Servicer shall cause each Subservicer and any successor
Subservicer to keep in force during the term of this Agreement insurance
coverage in such amounts as shall be normal and usual in the business.
Section 10.05. Assumption and Substitution Agreements. The Master
Servicer is authorized to take or enter into an assumption or substitution
agreement from or with the Person to whom property subject to a Mortgage has
been or is about to be conveyed. The Master Servicer is also authorized, if
required by law to do so, to release the original Obligor from liability upon
the Mortgage Loan Receivable and substitute the new mortgagor as Obligor
thereon. In connection with such assumption of substitution, the Master Servicer
shall apply such underwriting standards and follow such practices and procedures
as shall be normal and usual and as it applies to mortgage loan timeshare
receivables owed solely by it. Notwithstanding the foregoing, in connection with
any transfer of ownership of a Mortgaged Property by an Obligor to any Person,
the Master Servicer shall not agree to any change in the rate of interest borne
by, the maturity date of, the principal amount of, the timing of payments of
principal and interest in respect of, and all other material terms of, the
related Mortgage Note. The Master Servicer shall notify the Agent that any such
assumption or substitution agreement has been completed and if requested to do
so by the Agent, shall forward to the Agent a copy of such assumption or
substitution agreement for the Agent's review. The original of any assumption or
substitution agreement shall be added to the related Receivable File and shall,
for all purposes, be considered a part of such Receivable File to the same
extent as all other documents and instrument constituting a part thereof. In
connection with any such assumption or substitution agreement, the related
Mortgage Note shall not be changed. Any fee collected by
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the Master Servicer for entering into an assumption or substitution of liability
agreement will be retained by the Master Servicer as additional servicing
compensation.
Section 10.06. Realization upon Defaulted Receivables.
(a) The Master Servicer shall foreclose upon or otherwise comparably
convert the ownership of the Mortgaged Properties securing such of the Mortgage
Loan Receivable as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 10.02. In connection with such foreclosure or other
conversion, the Master Servicer shall follow such practices and procedures as it
shall deem necessary or advisable and as shall be normal and usual in its
general mortgage servicing activities; provided that if the Master Servicer has
actual knowledge or reasonably believes that any Mortgaged Property is affected
by hazardous or toxic waste or substances, then the Master Servicer need not
acquire title to such Mortgaged Property in a foreclosure or similar proceeding.
The foregoing is subject to the proviso that the Master Servicer shall not be
required to expend its own funds in connection with any foreclosure or to
restore any damaged property unless it shall determine that such foreclosure or
restoration will increase the Liquidation Proceeds available to the Seller after
reimbursement to the Master Servicer for its Liquidation Expenses.
(b) In connection with the foreclosure or liquidation of any Defaulted
Receivable that is a Right to Use Receivable, the Master Servicer shall follow
such practices and procedures as it shall deem necessary or advisable and as
shall be normal and usual in its general servicing activities. The Master
Servicer shall be required to expend its own funds in connection with the
liquidation of any Defaulted Receivable that is a Right to Use Receivable, if it
shall determine that such expenditures will increase the Liquidation Proceeds
available to the Seller after reimbursement to the Master Servicer for its
Liquidation Expenses.
(c) Liquidation Expenses incurred by the Master Servicer can be repaid
to the Master Servicer only from Liquidation Proceeds from sale or other
disposition of the related Defaulted Receivables.
Section 10.07. Payment of Fees and Expenses of Agent; No Offset. Prior
to the termination of this Agreement, the obligations of the Master Servicer
under this Agreement shall not be subject to any counterclaim or right of offset
which the Master Servicer has or may have against the Agent, whether in respect
of this Agreement, any Receivable or otherwise.
Section 10.08. Servicing Fee. The Seller shall pay to the
Master Servicer out of Collected Interest a fee (the "Servicing
Fee") for each day until the first Business Day after the
Commitment Termination Date on which the Aggregate Undivided
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Interest shall be reduced to zero and all Obligations shall have been fully paid
and performed. The accrued Servicing Fee shall be paid in arrears on each
Settlement Date and on the first Business Day after the Commitment Termination
Date on which the Aggregate Undivided Interest shall be reduced to zero and all
obligations shall have been fully paid and performed. The Servicing Fee shall be
calculated for each day as an amount equal to the product of (i) 1.75%, (ii) the
Outstanding Principal Balance of the Receivables comprising the Receivables Pool
as of such day and (iii) a fraction, the numerator of which is one and the
denominator of which is 360. In no event shall the Agent or any Purchaser have
any obligation to pay any fee in respect of the services to be provided
hereunder.
Section 10.09. Representations and Warranties as to the Master
Servicer. The Master Servicer represents and warrants to the Agent for the
benefit of the Purchasers that:
(a) Organization and Good Standing. The Master Servicer shall
have been duly organized and shall be validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, 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.
(b) Due Qualification. The Master Servicer 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 ability of
the Master Servicer to perform its obligations under this Agreement or
the other Facility Documents to which it is a party.
(c) Power and Authority. The Master Servicer shall have the
power and authority to execute, deliver and perform its obligations
under the Agreement and each other Facility Document to which it is a
party and to carry out their respective terms; and the execution,
delivery and performance of this Agreement and each other Facility
Document to which it is a party shall have been duly authorized by the
Master Servicer by all necessary corporate action.
(c) Binding Obligations. This Agreement shall constitute a
legal, valid and binding obligation of the Master Servicer 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.
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(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Facility Documents to
which the Master Servicer is a party and the fulfillment of the terms
of this Agreement and the other Facility Documents 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 Master Servicer, or
conflict with or violate any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any material indenture, agreement or other instrument to which the
Master Servicer is a party or by which it shall be bound; nor violate
any law or, to the best of the Master Servicer's knowledge, any order,
rule or regulation applicable to the Master Servicer of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Master
Servicer or its properties; which breach, default, conflict or
violation would have a material adverse effect on the ability of the
Master Servicer to perform its obligations under this Agreement or the
other Facility Documents to which it is a party.
Section 10.10. Existence; Status as Master Servicer; Merger.
(a) Except as otherwise permitted by Section 10.02(f), the Master
Servicer shall keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its organization and shall obtain and
preserve its qualification to do business as a foreign corporation, in each case
to the extent necessary to protect the validity and enforceability of the
Receivables (and, in the case of Mortgage Loan Receivables, the related Mortgage
Notes and Mortgages) and this Agreement.
(b) The Master Servicer shall not consolidate with or merge into any
other Person or convey, transfer or lease substantially all of its assets as an
entirety to any Person unless the Person formed by such consolidation or into
which the Master Servicer has been merged or the Person which acquires
substantially all the assets of the Master Servicer as an entirety is a
corporation organized under the laws of a state in the United States, can
lawfully perform the obligations of the Master Servicer hereunder and executes
and delivers to the other parties hereto an agreement, in form and substance
reasonably satisfactory to the Agent (acting upon the direction of the
Purchasers), which contains an assumption by such successor entity of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer under this Agreement.
(c) From the date hereof until the first day following the Commitment
Termination Date on which (i) the Aggregate Undivided Interest shall be reduced
to zero and (ii) all Obligations shall have been fully paid and performed, the
Master Servicer shall, unless the Agent (acting upon the direction of the
Required
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Purchasers) shall otherwise consent in writing, promptly after learning thereof,
notify the Agent of (i) the details of any action, proceeding, investigation or
claim against or affecting the Master Servicer instituted before any court,
arbitrator or Governmental Authority or, to its knowledge threatened to be
instituted, which, if determined adversely to the Master Servicer would be
likely to have a material adverse effect on the performance by it of its
obligations under any Facility Document to which is a part or by which it is
bound.
Section 10.11. Performance of obligations. The Master Servicer shall
not take any action or, to the extent within its control, permit any action to
be taken by others, which would excuse any Obligor from any of its covenants or
obligations under any Mortgage Note or Mortgage, or under any other instrument
relating thereto, or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any Mortgage Note or Mortgage or any such instrument, without
the written consent of the Agent, except as expressly provided herein and
therein.
Section 10.12. Liability of the Master Servicer; Indemnities. The
Master Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Master Servicer under this Agreement.
Such obligations shall include the following:
(a) The Master Servicer shall indemnify, defend and hold
harmless the Agent and the Purchasers from and against any loss,
liability or expense incurred by reason of the Master Servicer's
negligence, willful misfeasance or bad faith in the performance of its
obligations and duties hereunder, reckless disregard of its obligations
and duties hereunder or breach of any provision hereof.
(b) The Master Servicer shall indemnify, defend and hold
harmless the Agent and the Purchasers from and against all costs,
expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with the acceptance or performance of its duties
herein contained, except to the extent that any such cost, expense,
loss, claim, damage or liability: (i) shall be due to the willful
misfeasance, bad faith or negligence of the Agent or any Purchaser or
successor Master Servicer, (ii) relates to any Tax other than the Taxes
with respect to which the Master Servicer shall be required to
indemnify the Agent or (iii) shall be one as to which the Seller is
required to indemnify the Agent.
Indemnification under this Section shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation, and appeals
therefrom (including, but not limited to, any such fees and costs incurred in
bankruptcy, receivership or similar proceedings). If the Master Servicer shall
have made any indemnity payments to the Agent pursuant to this Section and the
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Agent thereafter shall collect any of such payments from others, the Agent shall
repay such amounts to the Master Servicer, with interest to the extent collected
(which interest shall not be an expense of the Agent or any Purchaser). The
indemnifications under this Section shall survive the termination of this
Agreement and the appointment of any successor Agent.
ARTICLE ELEVEN
TERMINATION EVENTS
Section 11.01. Termination Events. Each of the following
events shall constitute a "Termination Event":
(a) The Seller or either Originator shall fail to make any
payment or deposit required under this Agreement or the related
Purchase Agreement, in each case that continues unremedied for three
Business Days after discovery of such failure by an officer of the
Seller or the related originator or written notice of such failure is
given to the Seller or such Originator by the Agent;
(b) Any representation and warranty made by the Seller or the
Originators in this Agreement, the Purchase Agreements or any of the
other Facility Documents regarding corporate organization or authority
or the enforceability of this Agreement, the Purchase Agreements or any
of the other Facility Documents or any information required to be given
by the Originators to identify the Receivables proves to have been
incorrect in any material respect when made, and which continues to be
incorrect in any material respect for a period of 30 days after written
notice is delivered by the Agent pursuant to the terms of this
Agreement;
(c) Failure of the Seller or either Originator to observe or
perform in any material respect any material covenant or agreement
under this Agreement, the Purchase Agreements or any other Facility
Document which continues unremedied for a period of 30 days after
written notice is delivered by the Agent to the Seller or the related
Originator pursuant to the terms of this Agreement; or shall fail to
perform or observe any other term, covenant or agreement contained in
this Agreement or in any other Facility Document on its part to be
performed or observed and such failure shall remain unremedied for 30
days after written notice thereof shall have been given by the Agent to
the Seller or such Originator;
(d) Any Indebtedness of the Seller in excess of $100,000 shall
be declared to be due and payable or required to be prepaid (other than
by regularly scheduled required prepayment) prior to the stated
maturity thereof;
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(e) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a trustee in bankruptcy, conservator, receiver or
liquidator of the Seller, JELD-WEN, either Originator, WorldMark or any
Association in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 days;
(f) The consent by the Seller, JELD-WEN, either Originator,
WorldMark or any Association to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to any of the foregoing entities
of or relating to substantially all of their property; or the Seller,
JELD-WEN, either Originator or WorldMark shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
(g) Any judgment shall have been entered (and shall have
remained unsatisfied or unstayed for more than ten Business Days)
against either Originator or the Seller that if levied upon would have
a material adverse effect on the condition, financial or otherwise, on
the earnings, business affairs or business prospects of such Originator
or the Seller;
(h) The Seller becomes an "investment company" and is required
to register as such under the Investment Company Act;
(i) The IRS shall file notice of a lien pursuant to Section
6323 of the Code with regard to any Receivable and such lien shall not
have been released within ten Business Days, or the PBGC shall file
notice of a lien pursuant to Section 4068 of ERISA with regard to any
Receivable and such lien shall not have been released within ten
Business Days;
(j) If JELD-WEN or any Subsidiary shall fail to pay when due
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) any Indebtedness in excess of $750,000 and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness;
(k) If, as of any Settlement Date,(i)the Charge-off Rate or
the Consolidated Charge-off Rate exceeds 5% per annum, (ii) the average
of the Delinquency Rate Amounts or the Consolidated Delinquency Rate
Amounts, in either case for the three Collection Periods immediately
preceding the Collection
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Period in which such Settlement Date occurs exceeds 5%, (iii) the
average of the Defaulted Receivable Amounts or the Consolidated
Defaulted Receivable Amounts, in either case for the three Collection
Periods immediately preceding the Collection Period in which such
Settlement Date occurs exceeds 3% or (iv) the Portfolio Yield is
negative;
(l) If the Collateral Percentage falls below 125% and within
five Business Days after the Seller learns of such event or is given
notice of such event by the Agent or the Master Servicer it does not
cause the Collateral Percentage to equal or exceed 125%; or
(m) If the Seller has a Net Worth less than an amount equal to
the greater of (i) $5,000,000 or (ii) the product of 0.25 and the
Commitment Amount; or
(n) WorldMark, on an annual basis, has excess of revenues over
expenses of less than $0.
Section 11.02. Remedies.
(a) Upon the occurrence of (i) a Termination Event described in Section
11.01(e) or 11.01(f), the Commitment shall be terminated, the Agent shall have
been deemed to have given notice of the occurrence of a Termination Event to the
Seller, and the Obligations shall become due and payable (from Collections or
otherwise), all without further act or notice by the Agent or the Purchasers,
(ii) a Termination Event described in Section 11.01(a) the Agent or any
Purchaser may give notice to the Seller that the Commitment shall be terminated,
the Agent shall have been deemed to have given notice of the occurrence of a
Termination Event to the Seller and the Obligations shall become due and payable
(from Collections or otherwise) and (iii) any other Termination Event, the Agent
shall, at the request of the Required Purchasers, immediately terminate the
Commitment, give notice to the Seller of the occurrence of a Termination Event,
and declare the obligations due and payable (from Collections or otherwise).
(b) Upon any termination of the Commitment pursuant to this Section,
the Agent and the Purchasers shall have, in addition to all other rights and
remedies under this Agreement and the other Facility Documents, all rights and
remedies provided under the UCC of each applicable jurisdiction and under other
applicable laws, which rights shall be cumulative.
ARTICLE TWELVE
THE AGENT
Section 12.01. Authorization and Action. Each Purchaser hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this
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Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. The duties
of the Agent shall be mechanical and administrative in nature, it shall not have
by reason of this Agreement a fiduciary relationship in respect of any Purchaser
and nothing in this Agreement or the other Facility Documents, expressed or
implied, is intended to or shall be so construed as to impose upon the Agent any
obligations in respect of this Agreement or the other Facility Documents except
as expressly set forth herein or in such other Facility Documents. As to any
matters not expressly provided for by this Agreement, the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining) upon the instructions of the Required Purchasers, and such
instructions shall be binding upon all Purchasers, provided that the Agent shall
not be required to take any action which exposes it to personal liability or
which is contrary to any Facility Document or applicable law and provided,
further, that without the prior written consent of all Purchasers, the Agent
shall not, nor can the Agent be instructed to, change or modify (a) any
requirement that any particular action be taken by the Required Purchasers or by
all the Purchasers, (b) the definition of "Required Purchasers", (c) the
Commitment Amount or any Purchasers' Pro Rate Share thereof, (d) the amount of
the Commitment Fees or the Upfront Fee, (e) the Commitment Termination Date
(except as provided in Section 2.03), (f) the date for payment of any Earned
Yield or (g) the amount of the Earned Yield and provided, further, that the
terms of Sections 5.01 and 13.02 and this Article shall not be amended without
the prior written consent of the Agent (acting for its own account). In the
absence of instructions from the Required Purchasers, the Agent shall have
authority (but no obligation), in its sole discretion, to take or not to take
any action, unless this Agreement specifically requires the consent of all
Purchasers or of the Required Purchasers and any such action or failure to act
shall be binding on all the Purchasers. Each Purchaser shall execute and deliver
such additional instruments, including powers of attorney in favor of the Agent,
as may be necessary or desirable to enable the Agent to exercise its powers
hereunder.
Section 12.02. Duties and Obligations.
(a) Neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
any of them under or in connection with this Agreement except for its or their
own gross negligence or willful misconduct. Without limiting the generality of
the foregoing, the Agent (i) may treat each Purchaser as the party entitled to
receive payments hereunder except as otherwise provided in Article Thirteen;
(ii) may consult with legal counsel (including counsel for the Seller),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the
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advice of such experts; (iii) makes no warranty or representation to any
Purchaser and shall not be responsible to any Purchaser for any statements,
warranties or representations made in or in connection with this Agreement or in
any instrument or document furnished pursuant hereto; (iv) shall not have any
duty to ascertain or to inquire as to the performance of any of the terms,
covenants or conditions of the Facility Documents on the part of the Seller or
as to the existence or possible existence of any Unmatured Termination Event or
Termination Event; (v) shall not be responsible to any Purchaser for the due
execution, legality, validity, enforceability, genuineness, effectiveness or
value of this Agreement or of any instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect to this Agreement
by acting upon any oral or written notice, consent, certificate or other
instrument or writing (which may be by telegram, facsimile transmission, cable
or telex) believed by it to be genuine and signed or sent by the proper party or
parties or by acting upon any representation or warranty of the Seller made or
deemed to be made hereunder.
(b) The Agent will account to each Purchaser for its Pro Rata Share of
payments made for the ratable account of the Purchasers which are received by
the Agent from the Seller and will promptly remit to the Purchasers entitled
thereto all such payments. The Agent will transmit to each Purchaser copies of
all documents received from the Seller pursuant to the requirements of this
Agreement other than documents which by the terms of this Agreement the Seller
is obligated to deliver directly to the Purchasers.
(c) Each Purchaser or its assignee shall furnish to the Agent in a
timely fashion such documentation (including, but not by way of limitation, IRS
Forms Nos. 1001, 4224 and W-8) as may be required by applicable law or
regulation or as may reasonably be requested by Agent to establish such
Purchaser's status for tax withholding purposes.
Section 12.03. Dealings With the Seller. With respect to its portion of
the Commitment and the Purchases made by it, the Agent shall have the same
rights and powers under this Agreement as any other Purchaser and may exercise
the same as though it were not the Agent, and the term "Purchaser" shall unless
otherwise expressly indicated include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, act and generally engage in any
kind of business with the Seller and any Person which may do business with the
Seller, all as if the Agent were not the Agent hereunder and without any duty to
account therefor to the Purchasers.
Section 12.04. Purchaser Credit Decision. Each Purchaser acknowledges
that it has, independently and without reliance upon the Agent or any other
Purchaser and based upon such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Purchaser also acknowledges that it will, independently and
without reliance
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upon the Agent or any other Purchaser and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Facility Documents.
Section 12.05. Right to Rely on Payments.
(a) Unless the Agent shall have been notified in writing by a Purchaser
by 2:00 p.m., Seattle time, on the day prior to a Purchase (other than a
Reinvestment) that such Purchaser will not make available the amount which would
constitute its Pro Rata Share of the amount to be paid in connection with such
Purchase, the Agent may assume that such Purchaser has made such amount
available to the Agent and, in reliance upon such assumption, make available to
the Seller a corresponding amount. If and to the extent that such Purchaser
shall not have made such amount available to the Agent, such Purchaser and the
Seller severally agree to repay the Agent forthwith on demand such amount
together with interest thereon, for each day from the date the Agent made such
amount available to the Seller to the date such amount is repaid to the Agent,
at the Yield Rate applicable to such Purchase when first made.
(b) Unless the Agent shall have been notified by telephone and such
notice shall have been confirmed in writing by the Master Servicer by 2:00 p.m.,
Seattle time, on the day prior to the date any payment is due hereunder that the
Master Servicer will not make the full amount of all payments scheduled to be
made by it on such due date, the Agent may assume that the Master Servicer has
made such amount available to the Agent and, in reliance upon such assumption,
make available to itself and the Purchasers their respective shares of such
amount. If the Agent makes any such amount available to any Purchaser, but such
amount was not in fact made available by the Master Servicer to the Agent on
such due date, such Purchaser shall pay to the Agent on demand the amount
previously made available to such Purchaser, together with interest on such
amount at the daily average Federal Funds Rate for the number of days from and
including the date on which such Purchaser received such amount to the date on
which such amount becomes immediately available to the Agent. A statement of the
Agent submitted to any Purchaser with respect to any amounts owing under this
paragraph shall be conclusive and binding in the absence of manifest error. If
such amount is not in fact repaid to the Agent by such Purchaser within two
Business Days after the date on which such Purchaser is informed by the Agent
that such amount was not made available to the Agent by the Purchaser then the
Agent shall be entitled to recover on demand an amount calculated in the manner
specified in the second preceding sentence of this clause (b) after substituting
the term "Reference Rate" for the term "Federal Funds Rate."
Section 12.06. Limitations on Liability; Indemnification.
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(a) Anything herein to the contrary notwithstanding, the Agent and the
Purchasers shall have no obligations or liabilities with respect to any Assigned
Collateral, nor shall any of them be obligated to perform any of the obligations
of the Seller owing to any Obligor under the Receivables or in respect thereof.
(b) The Purchasers agree to indemnify the Agent (to the extent not
reimbursed by the Seller) ratably according to their respective Pro Rata Shares
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, Taxes (in the case of Tax
liabilities in respect of earnings or gains from the investment of funds held in
the Collection Account), expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of this Agreement or any other Facility
Document or any action taken or omitted by the Agent under this Agreement or any
other Facility Document, except any such as result from the Agent's gross
negligence or willful misconduct. Without limiting the foregoing, each Purchaser
agrees to reimburse the Agent promptly on demand in proportion to its Pro Rata
Share for any out-of-pocket expenses, including legal fees, incurred by the
Agent in connection with the administration or enforcement of or the
preservation of any rights under this Agreement or any other Facility Document
(to the extent that the Agent is not reimbursed for such expenses by the Seller)
The foregoing indemnities shall survive the termination of this Agreement.
Section 12.07. Successor Agent. The Agent may give written notice of
resignation at any time to the Purchasers and the Seller which resignation shall
not be effective until at least 30 days thereafter and the Agent may be removed
at any time with cause by the Required Purchasers. Upon any such notice of
resignation or removal, the Required Purchasers shall have the right to appoint
a successor Agent. If no successor Agent shall have been so appointed by the
Required Purchasers and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation or the removal of the
retiring Agent by the Required Purchasers, then the retiring Agent may on behalf
of the Purchasers, appoint a successor Agent, which shall be a bank organized
under the laws of the United States or of any state thereof, or any affiliate of
such bank, and having a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
Until the acceptance by such a successor Agent, the retiring Agent shall
continue as "Agent" hereunder. After any retiring Agent's resignation or removal
hereunder as Agent shall become effective, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
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Section 12.08. Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Facility Document to which it is a
party by or through agents, employees or attorneys-in-fact and shall be entitled
to the advice of counsel concerning all matters pertaining to such duties. The
Agent shall not be held liable to any Purchaser for the negligence or misconduct
of any agent or attorney-in-fact that the Agent selects with reasonable care.
Section 12.09. Merger of Agent. Any Person into which the Agent may be
merged or converted or which it may be consolidated with or any Person resulting
from any merger, conversion or consolidation to which it shall be a party or any
Person to which the Agent may sell or transfer all or substantially all of its
agency relationships shall be the successor to the Agent without the execution
or filing of any paper or further act, anything herein to the contrary
notwithstanding.
ARTICLE THIRTEEN
ASSIGNMENTS AND PARTICIPATIONS
Section 13.01. Generally. Each Purchaser may assign, or sell
participations in, its share of the Aggregate Net Investment and in the
Commitment to one or more Persons in accordance with this Article. Unless the
Agent (acting upon the direction of the Required Purchasers) shall otherwise
consent in writing, the Seller may not assign or delegate any of its rights or
duties hereunder and any such assignment or delegation purported to be made
shall be void and of no effect.
Section 13.02. Assignments. Any Purchaser, with the prior written
consent (which prior consent from the Seller and Master Servicer shall not be
required if a Termination Event shall have occurred and is continuing) of the
Seller, the Agent and the Master Servicer (which consents will not be
unreasonably withheld) , may at any time assign and delegate to one or more
commercial banks or other financial institutions (each, an "Assignee
Purchaser"), all or any fraction of its Pro Rata Share of the Aggregate Net
Investment and its Pro Rata Share of the Commitment (which assignment and
delegation shall be a constant, and not a varying, percentage of all the
assigning Purchasers, share of the Aggregate Net Investment and its share of the
Commitment) to one or more commercial banks or other financial institutions
(each, an "Assignee Purchaser"). Notwithstanding the foregoing,(i)the portion of
the Commitment assigned to any Assignee Purchaser shall not be less than
$1,000,000 unless such assignment covers all of the assigning Purchasers,
interests and obligations under all Facility Documents and (ii) any Assignee
Purchaser must purchase interests in the assigning Purchasers' share of the
Aggregate Net Investment and of the Commitment and other obligations in equal
proportions.
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The Seller, the Master Servicer and the Agent shall be entitled to
continue to deal solely and directly with such assigning Purchaser in connection
with the interests and obligations so assigned and delegated to an Assignee
Purchaser until
(i) the Agent and Seller shall have approved the proposed
assignment;
(ii) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Purchaser, shall have been given to the
Seller, the Master Servicer and the Agent by such Purchaser and such
Assignee Purchaser;
(iii) such Assignee Purchaser shall have executed and
delivered to the Seller, the Master Servicer and the Agent an agreement
pursuant to which such Assignee Purchaser shall be bound to the terms
of this Agreement and the other Facility Documents in form and
substance acceptable to the Agent; and
(iv) the processing fees described below shall have been
paid.
From and after the date that all of the foregoing conditions shall have
been fully satisfied, (A) the Assignee Purchaser shall be deemed automatically
to have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Purchaser in
connection with such assignment, shall have the rights and obligations of a
Purchaser hereunder and under the other Facility Documents and (B) the assigning
Purchaser, to the extent that rights and obligations under the Facility
Documents have been assigned and delegated by it, shall be released from its
obligations which are not then due and payable under the Facility Documents.
The assigning Purchaser must pay an administrative processing fee
(which fee shall not be reimbursable by the Seller) to the Agent in an amount of
$1,000. Any attempted assignment and delegation not made in accordance with this
Section shall be null and void.
In connection with each assignment and delegation effected in
accordance with this Section, each of the parties hereto agrees, promptly upon
the Agent's request, to execute and deliver all financing statements and
continuation statements that the Agent deems necessary or appropriate in
connection with such assignment and delegation.
Section 13.03. Participations. Any Purchaser may at any time sell to
one or more commercial banks or other financial institutions (each, a
"Participant") undivided interests in its rights in respect of any Purchases,
its portion of the Commitment or other interests or obligations of such
Purchaser hereunder;
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provided, however, that no participation contemplated in this Section shall
relieve such Purchaser from its portion of the Commitment or its other
obligations under any Facility Document and the Seller, the Master Servicer and
the Agent shall continue to deal solely and directly with such Purchaser in
connection with such Purchasers' rights and obligations under this Agreement and
each of the other Facility Documents. The Seller acknowledges and agrees that
each Participant, for purposes of Sections 3.05, 3.06, 10.03, 14.01, 15.08 and
15.09 shall be considered a Purchaser; provided, however, that no Participant
shall be entitled to payment of any amount under such Sections that would not
have been payable to the selling Purchaser had no participation occurred.
ARTICLE FOURTEEN
SELLER INDEMNITIES
Section 14.01. Indemnities by the Seller. The Seller hereby agrees to
indemnify each of the Agent, the Purchasers, their respective successors,
permitted transferees and assigns and all officers, directors, shareholders,
controlling persons, employees and agents of any of the foregoing (each, an
"Indemnified Party"), forthwith on demand, from and against any and all damages,
losses, claims (whether on account of settlements or otherwise), liabilities and
related costs and expenses, including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Amounts") awarded against or
incurred by any of them arising out of or as a result of any Facility Document
or the transactions contemplated thereby or the use of proceeds therefrom,
including, without limitation, in respect of the ownership of an Undivided
Interest or in respect of any Receivable or any Receivable Document, excluding,
however, Indemnified Amounts to the extent resulting from (a) nonpayment by any
Obligor of an amount due and payable with respect to a Receivable unless such
nonpayment results from a dispute, claim, offset or defense described in Section
14.01(vi) or the noncompliance with applicable laws, rules or regulations
described in Section 14.01(iii), (b) negligence or willful misconduct on the
part of such Indemnified Party or (c) disputes between assigning Purchasers and
Assignee Purchasers, or disputes between selling Purchasers and Participants, if
such disputes relate solely to the conduct of such Persons and not to the
failure of the Seller or the Master Servicer to perform any Facility Document.
Without limiting the foregoing, the Seller shall indemnify each Indemnified
Party for Indemnified Amounts relating to or resulting from:
(i) the transfer by the Seller of any interest in any
Receivable other than an Undivided Interest;
(ii) the breach of any representation or warranty made by the
Seller under or in connection with any Facility Document, any report or
settlement statement or any other information or report delivered by
the Seller or the Servicer pursuant
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thereto, which shall have been false or incorrect when made or
deemed made;
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Receivable or the related
Receivable Documents, or the nonconformity of any Receivable or the
related Receivable Documents with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain vested in the
Purchasers' ownership interests in the Undivided Interests, free and
clear of any Lien (other-than Permitted Encumbrances on the Mortgaged
Properties and any Lien arising solely as a result of an act of the
Purchasers or the Agent, whether existing at the time of the Purchase
of such Undivided Interest or at any time thereafter);
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC or
other applicable laws with respect to any Receivable, all or any part
of the Assigned Collateral whether at the time of any Purchase or at
any subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on the
related Receivable or Receivable Documents not being the legal, valid
and binding obligations of such Obligor enforceable against it in
accordance with its respective terms), or any other claim resulting
from the sale of the services or goods related to such Receivable or
the furnishing or failure to furnish such services or goods;
(vii) any failure of the Seller, as the Servicer or
otherwise, to perform its duties or obligations in accordance with the
provisions of Article Ten; and
(viii) any Tax, all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses, including
the reasonable fees and expenses of counsel in defending against the
same, which may arise by reason of the purchase or ownership of any
Undivided Interest, or other interest in the Assigned Collateral or
Facility Documents other than Taxes upon or measured by net income,
gross receipts or profits of the Indemnified Party; indemnification in
respect of any such amounts shall be in an amount necessary to make the
Indemnified Party whole after taking into account any tax consequences
to the Indemnified Party of the receipt of the indemnity provided
hereunder or of any refund of any Tax previously indemnified hereunder,
including the effect of such tax or refund on the amount of tax
measured by net income, gross receipts or profits which is or was
payable by the Indemnified Party.
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The indemnities provided herein shall survive the termination of this Agreement.
ARTICLE FIFTEEN
MISCELLANEOUS
Section 15.01. Repurchases for Administrative Convenience. If on any
Settlement Date, the Aggregate Net Investment is less than or equal to 10% of
the maximum Aggregate Net Investment on any date prior to such Settlement Date,
the Seller shall be entitled to repurchase all (but not less than all) of the
Undivided Interests from the Purchasers on such Settlement Date. To effect such
repurchase, the Seller shall give the Agent at least three Business Days, prior
written notice thereof and on the Settlement Date shall tender payment of the
repurchase price calculated as hereinafter provided. The Seller shall pay such
repurchase price in cash to the Agent (for the benefit of the Agent and the
Purchasers) in an amount equal to the sum of (i) unpaid Earned Yield on the
Aggregate Net Investment accrued to and including the date of repurchase, (ii)
the Aggregate Net Investment, (iii) accrued but unpaid Commitment Fees, (iv) all
other Obligations that are then due and payable, including, without limitation,
any Obligations which may arise under Section 3.06 as a result of such
repurchase and (v) the amount of the Servicing Fee accrued to and including the
date of repurchase (which amount shall be paid to the Master Servicer). Upon
receipt of such funds, the Purchasers shall be obligated to reconvey their
Undivided Interests and all Assigned Collateral to the Seller pursuant to an
assignment in form reasonably acceptable to the Seller, the Agent and the
Purchasers, but without representation or warranty except for a several
representation and warranty from each Purchaser that the Undivided Interests and
all Assigned Collateral assigned are free of Liens created by or arising under
such Purchaser.
Section 15.02. Substitution of Receivables. On any Settlement Date
occurring on or before the Commitment Termination Date, the Seller may remove
any Receivable that is either a Defaulted Receivable or is otherwise no longer
an Eligible Receivable; provided, however, that simultaneously with such
removal, Seller shall substitute a new Receivable which can be either a Right to
Use Receivable or a Mortgage Loan Receivable, which is an Eligible Receivable as
of the time of substitution and which has an outstanding Principal Balance equal
to or greater than the Outstanding Principal Balance of the Receivable being
removed from the Receivables Pool. After the Commitment Termination Date,
provided that no Notice Date has occurred, on any Settlement Date Seller may
remove any Receivable which is a Defaulted Receivable or which is no longer an
Eligible Receivable from the Receivables Pool; provided, however, that
simultaneously with such removal, the Seller shall substitute a new Receivable
which is an Eligible Receivable as of the time of substitution, which has a
final maturity date not later than the final maturity date of the
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Receivable being removed from the Receivables Pool and which has an Outstanding
Principal Balance equal to or greater than the Outstanding Principal Balance of
the Receivable being removed from the Receivables Pool. Any new Receivables
being substituted for Receivables being removed from the Receivables Pool shall
be separately identified on the related Settlement Statement.
Section 15.03. No Waiver; Remedies Cumulative. No failure by the Agent
or any Purchaser to exercise, and no delay in exercising, any right, power or
remedy under this Agreement or any other Facility Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
remedy under this Agreement or any other Facility Document preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The exercise of any right, power or remedy shall in no event constitute a cure
or waiver of any Unmatured Termination Event or Termination Event under this
Agreement nor prejudice the right of the Agent or any Purchaser in the exercise
of any right hereunder or under any other Facility Document. The rights and
remedies provided herein and therein are cumulative and not exclusive of any
right of remedy provided by law.
Section 15.04. 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 Purchasers in
all or any part of the Assigned Collateral is governed by the laws of a
jurisdiction other than the State of Washington.
Section 15.05. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt in the case of:
(i) TW HOLDINGS, INC.
X.X. Xxx 0000
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: X.X. Xxxxx and Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(ii) JELD-WEN, inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: X.X. Xxxxx and Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(iii) Seattle-First National Bank,
as Purchaser
000 Xxxxx Xxxxxx
-00-
00
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(iv) Seattle-First National Bank,
as Agent
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any of the foregoing addresses can be changed by written notice to the other
parties to this Agreement.
Section 15.06. Severability. Any provision of this Agreement or any
other Facility Document which is prohibited or unenforceable in any jurisdiction
shall as to such jurisdiction be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties waive any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect.
Section 15.07. Entire Agreement; Amendment. This Agreement, the Fee
Letter and the other Facility Documents to which the Seller is a party comprise
the entire agreement of the parties hereto and may not be amended or modified
except by written agreement of the Seller and the Agent. No provision of this
Agreement may be waived except in writing and then only in the specific instance
and for the specific purpose for which given.
Section 15.08. Submission to Jurisdiction; Etc. Each party hereto
hereby irrevocably (a) submits to the jurisdiction of any Washington State or
United States federal court sitting in Seattle, Washington, over any action or
proceeding arising out of or relating to any Facility Document; (b) agrees that
all claims in respect to such action or proceeding may be heard and determined
in such state or United States federal court; (c) waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding; (d) in the case of the Seller,
consents to the service of any and all process in any such action or proceeding
by the mailing of copies of such process to the Seller at its address provided
in Section 15:05; (e) agrees that a final judgment in any such action 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; and (f) in the case
of the Seller, agrees not to institute any legal action or proceeding against
the Agent or the Purchasers or the directors, officers, employees, agents or
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property of any thereof, arising out of or relating to any Facility Document, in
any court other than (i) any Washington state or United States federal court
sitting in Seattle, Washington or (ii) in the case of an action against a
particular Purchaser, any court sitting at the location of the Purchasers,
principal place of business. Nothing in this Section shall affect the right of
the Agent or any Purchaser to serve legal process in any other manner permitted
by law or to bring any action or proceeding against the Seller or its property
in the courts of any other jurisdiction.
Section 15.09. Waiver of Jury Trial. Each party hereto waives any right
to a trial by jury in any action or proceeding to enforce or defend any rights
under or relating to this agreement, any other Facility Document or any
amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith or arising from any relationship
existing in connection with this Agreement or any other Facility Document, and
agrees that (i) any such action or proceeding shall be tried before a court and
not before a jury and (ii) any party hereto may file an original counterpart or
a copy of this Agreement with any court as written evidence of the consent of
any other party or parties hereto to the waiver of its or their right to a trial
by jury.
Section 15.10. Captions and Cross-References; Incorporation by
Reference. The various captions (including, without limitation, the table of
contents) in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to any Section, Schedule or Exhibit are to such
Section, Schedule or Exhibit of this Agreement, as the case may be. The
Schedules and the Exhibits hereto are hereby incorporated by reference and made
a part of this Agreement.
Section 15.11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
Section 15.12. Confidentiality. Each party hereto agrees, insofar as it
is legally possible to do so, to use its best efforts to keep in confidence the
terms of this Agreement and all information furnished or which may hereafter be
furnished to it pursuant to the provisions of this Agreement including, without
limitation, information relating to the Receivables; provided, however, that
this Section shall not prohibit disclosure (i) to Purchasers; (ii) required or
requested by any regulatory authority having jurisdiction over such party or
otherwise required by law; (iii) of information otherwise lawfully obtainable
from other sources; (iv) to attorneys and accountants for their review in
connection with the performance of their duties; (v) to any Participant or
prospective Participant or Assignee Purchaser; or (vi) to the extent such duty
of confidentiality is waived by the applicable party hereunder.
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Section 15.13. Oral Agreements Not Enforceable. ORAL AGREEMENTS OR ORAL
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TW HOLDINGS, INC.,
as Seller
By:______________________________________
Name: X.X. Xxxxx
Title: President
JELD-WEN, inc.,
as Master Servicer
By:______________________________________
Name: X.X. Xxxxx
Title: President
SEATTLE-FIRST NATIONAL BANK,
as Purchaser
By:______________________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
SEATTLE-FIRST NATIONAL BANK,
as Agent
By:______________________________________
Name: Xxx Xxxx
Title: Assistant Vice President
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