EXHIBIT 10.4
EXECUTION COPY
SERIES 2002-1
SUPPLEMENT
Dated as of August 29,
2002
to
MASTER LOAN PURCHASE
AGREEMENT
Dated as of August 29,
2002
Amended and Restated as of November
14, 2005
CENDANT TIMESHARE CONDUIT
RECEIVABLES FUNDING, LLC
LOAN-BACKED
VARIABLE FUNDING NOTES,
SERIES 2002-1
by and between
CENDANT TIMESHARE RESORT
GROUP-CONSUMER FINANCE, INC.,
as Seller
FAIRFIELD RESORTS, INC.,
as Co-Originator
FAIRFIELD MYRTLE BEACH,
INC.,
as Co-Originator
KONA HAWAIIAN VACATION OWNERSHIP,
LLC,
as an Originator
SHAWNEE DEVELOPMENT,
INC.,
as an Originator
SEA GARDENS BEACH AND TENNIS RESORT,
INC.,
VACATION BREAK RESORTS,
INC.,
VACATION BREAK RESORTS AT STAR
ISLAND, INC.,
PALM VACATION GROUP
and
OCEAN RANCH VACATION
GROUP,
each as a VB Subsidiary
PALM VACATION GROUP
and
OCEAN RANCH VACATION
GROUP,
each as a VB Partnership
and
SIERRA DEPOSIT COMPANY,
LLC
as Purchaser
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(b) Filing of
Financing Statements
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(c) Delivery of
Series 2002-1 Loan Schedule
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(d) Purchase of
Additional Series 2002-1 Loans
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(g) Security
Interest in Transferred Assets
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(h) Quitclaim
of All Right, Title and Interest by FMB, the VB
Subsidiaries,
FRI, Kona and SDI
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Payment of
Purchase Price
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Conditions
Precedent to Sale of Series 2002-1 Loans
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Representations
and Warranties of the Seller, FRI, FMB and the VB
Subsidiaries
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(b)
Representations and Warranties Regarding the Series 2002-1
Loans
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Repurchases or
Substitution of Series 2002-1 Loans
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(a) Repurchase
or Substitution Obligation
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(b) Repurchases
and Substitutions
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(c) Repurchases
of Series 2002-1 Loans that Become Defaulted Loans
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Covenants of
the Seller and FRI
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Representations
and Warranties of the Company
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(m)
Ratification of Agreement
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(q) Successors
and Assigns
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THIS PURCHASE AGREEMENT SUPPLEMENT (this “
PA Supplement ”), dated as of August 29, 2002, as
amended and restated as of November 14, 2005, is by and between
CENDANT TIMESHARE RESORT GROUP-CONSUMER FINANCE, INC., a Delaware
corporation formerly known as Fairfield Acceptance
Corporation-Nevada, as seller (the “ Seller ”),
FAIRFIELD RESORTS, INC., a Delaware corporation and the parent
corporation of the Seller, as co-originator (“ FRI
”), FAIRFIELD MYRTLE BEACH, INC., a Delaware corporation and
a wholly-owned subsidiary of FRI, as co-originator (“
FMB ”), KONA HAWAIIAN VACATION OWNERSHIP, LLC, a
Hawaii limited liability company, as an Originator (“
Kona ”), SHAWNEE DEVELOPMENT, INC., a Pennsylvania
corporation (“ SDI ”), SEA GARDENS BEACH AND
TENNIS RESORT, INC., a Florida corporation (“ Sea
Gardens ”), VACATION BREAK RESORTS, INC., a Florida
corporation (“ VBR ”), VACATION BREAK RESORTS AT
STAR ISLAND, INC., a Florida corporation (“ VBRS
”) (each of Sea Gardens, VBR and VBRS being wholly-owned
subsidiaries of Vacation Break, USA, Inc., a wholly-owned
subsidiary of FRI), PALM VACATION GROUP, a Florida general
partnership (“ PVG ”), OCEAN RANCH VACATION
GROUP, a Florida general partnership (“ ORVG ”)
(each of Sea Gardens, VBR, VBRS, PVG and ORVG are hereinafter
collectively referred to as the “ VB Subsidiaries
” and PVG and ORVG are hereinafter collectively referred to
as the “ VB Partnerships ”) and SIERRA DEPOSIT
COMPANY, LLC, a Delaware limited liability company, as purchaser
(hereinafter referred to as the “ Purchaser ” or
the “ Company ”).
Section 2 of the Agreement provides that the
Seller may from time to time sell and assign to the Company, and
the Company may from time to time Purchase from the Seller, all the
Seller’s right, title and interest in, to and under Loans
listed on the Loan Schedule of the related PA Supplement on the
Closing Date for the related Series. The principal terms of the
Purchase and sale of Loans for each Series shall be set forth in a
PA Supplement to the Agreement.
Pursuant to this PA Supplement and in accordance
with Section 2 of the Agreement, the Seller hereby sells to
the Company, and the Company hereby Purchases from the Seller, the
Series 2002-1 Loans, and the Seller and the Company hereby specify
the principal terms of such sales and Purchases.
The Company has determined with the agreement of
the Seller that Loans purchased from the Seller may be sold to
Cendant Timeshare Conduit Receivables Funding, LLC, formerly known
as Sierra Receivables Funding Company, LLC (the “Initial
Issuer”) and pledged to secure notes issued by the Initial
Issuer or may be sold by the Company to an Additional Issuer and
pledged to secure Notes issued by the Additional Issuer. The
Company may also, from time to time, purchase Loans from the
Initial Issuer and transfer such Loans to an Additional Issuer to
be pledged to secure an Additional Series.
The Seller and the Company agree that Loans sold
to the Company under the Agreement and the PA Supplement retain
their character as Series 2002-1 Loans whether sold to and retained
by the Initial Issuer or reacquired by the Company and transferred
to an Additional Issuer.
The PA Supplement supplements the Master Loan
Purchase Agreement dated as of August 29, 2002, as amended and
restated as of November 14, 2005 and as amended from
time
to time. The
Master Loan Purchase Agreement, as so amended, is the
“Agreement.” Terms used in this Amendment and not
defined herein have the meaning assigned in the
Agreement.
All capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the
Agreement. Each capitalized term defined herein shall relate only
to the Series 2002-1 Loans and to no other Loans purchased by the
Company from the Seller.
In the event that any term or provision
contained herein shall conflict with or be inconsistent with any
term or provision contained in the Agreement, the terms and
provisions of this PA Supplement shall be controlling.
The words “hereof,”
“herein” and “hereunder” and words of
similar import when used in this PA Supplement shall refer to this
PA Supplement as a whole and not to any particular provision of
this PA Supplement; and Article, Section, subsection, Schedule and
Exhibit references contained in this PA Supplement are references
to Articles, Sections, subsections, Schedules and Exhibits in or to
this PA Supplement unless otherwise specified.
“ Addition Date ” shall mean
the date from and after which Additional Loans are sold pursuant to
Section 2(d).
“ Agreement ” shall mean the
Master Loan Purchase Agreement dated as of August 29, 2002, as
amended and restated as of November 14, 2005, by and between the
Seller, FRI, FMB, Kona, SDI, the VB Subsidiaries, the VB
Partnerships and the Purchaser, as the same may be amended,
supplemented or otherwise modified from time to time thereafter in
accordance with its terms.
“ Assignment ” shall have the
meaning set forth in Section 2(d)(iii)(E).
“ Closing Date ” shall mean
August 29, 2002.
“ Company ” shall have the
meaning set forth in the preamble.
“ Cut-Off Date ” shall mean
August 27, 2002.
“ Cut-Off Date Pool Principal
Balance ” shall have the meaning set forth in
Section 3.
“ Eligible Loan ” shall mean
a Series 2002-1 Loan:
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with respect to
which (i) the related Timeshare Property is not a Lot, (ii) the
related Timeshare Property has been purchased by an Obligor, (iii)
except in the case of a Green Loan, a certificate of occupancy for
the related Timeshare Property has been issued, (iv) except in the
case of a Green Loan, the unit for the related Timeshare Property
is complete and ready for occupancy, is not in need of material
maintenance or repair, except for ordinary, routine maintenance and
repairs that are not substantial in nature or cost and contains no
structural defects materially affecting its value, (v) the related
Timeshare Property Regime is not in need of maintenance or repair,
except for ordinary, routine maintenance and repairs that are not
substantial in nature or cost and contains no structural defects
materially affecting its value, (vi) there is no legal, judicial or
administrative proceeding pending, or to the Seller’s
knowledge threatened, for the total condemnation of the related
Timeshare Property or partial condemnation of any portion of the
related Timeshare Property Regime that would have a material
adverse effect on the value of the related Timeshare
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Property Regime
is not in need of maintenance or repair, except for ordinary,
routine maintenance and repairs that are not substantial in nature
or cost and contains no structural defects materially affecting its
value, (vi) there is no legal, judicial or administrative
proceeding pending, or to the Seller’s knowledge threatened,
for the total condemnation of the related Timeshare Property or
partial condemnation of any portion of the related Timeshare
Property Regime that would have a material adverse effect on the
value of the related Timeshare Property and (vii) the related
Timeshare Property is not related to a Resort located outside of
the United States, Canada, Mexico or the United States Virgin
Islands;
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with respect to
which the rights of the Obligor thereunder are subject to
declarations, covenants and restrictions of record affecting the
Resort; provided , however , that a Series 2002-1
Loan shall not fail to be an Eligible Loan solely because the
rights of the Obligor thereunder have been subjected to the
FairShare Plus Program;
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in the case of
a Series 2002-1 Loan that is an Installment Contract, with respect
to which the Seller has a valid ownership or security interest in
an underlying Timeshare Property, subject only to Permitted
Encumbrances, unless the criteria in paragraph (d) are
satisfied;
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with respect to
which (i) if the related Timeshare Property has been deeded to the
Obligor of the related Series 2002-1 Loan, (A) the Originator has a
valid and enforceable first lien Mortgage on such Timeshare
Property, except as such enforceability may be limited by Debtor
Relief Laws and as such enforceability may be limited by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law, (B) such Mortgage
and related mortgage note have been assigned to the Collateral
Agent, (C) such Mortgage and the related note for such Mortgage
have been transferred or will be transferred to the custody of the
Custodian in accordance with the provisions of Section 6(c)(i) of
the Agreement and (D) if any Mortgage relating to such Series
2002-1 Loan is a deed of trust, a trustee duly qualified under
applicable law to serve as such has been properly designated in
accordance with applicable law and currently so serves or (ii) if
the related Timeshare Property has not been deeded to the Obligor
of the related Series 2002-1 Loan, a Nominee has legal title to
such Timeshare Property and the Seller has an equitable interest in
such Timeshare Property underlying the related Series 2002-1
Loan;
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that was issued
in a transaction that complied, and is in compliance, in all
material respects with all material requirements of applicable
federal, state and local law;
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that requires
the Obligor to pay the unpaid principal balance over an original
term of not greater than 120 months and (ii) the original term of
which does not exceed 84 months unless (A) the Series 2002-1 Loan
relates to a Timeshare
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Upgrade or (B)
the weighted average FICO score of all such Series 2002-1 Loans
with original terms longer than 84 months is at least 640 and (x)
with respect to Series 2002-1 Loans sold prior to November 14, 2005
has a FICO score not less than 600 or (xi) with respect to Series
2002-1 Loans sold on or after November 14, 2005 has a FICO score
not less than 550;
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the Scheduled
Payments on which are denominated and payable in United States
dollars;
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that is not a
Defective Loan or a Defaulted Loan;
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that, with
respect to Loans sold prior to July 28, 2004
, (i) is not a Delinquent Loan
as of the Cut-Off Date or related Addition Cut-Off Date, as
applicable, and (ii) with respect to which no Scheduled
Payment was (A) delinquent for more than 30 days past its Due
Date more than once during the 18-month period preceding the
Cut-Off Date or related Addition Cut-Off Date, as applicable, with
respect to such Series 2002-1 Loan, or (B) delinquent for more
than 60 days at any time during such 18-month period (each such
determination under this clause (ii) being made without giving
effect to the grant of any extension of the Due Date of any such
Scheduled Payment); or
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that, with
respect to Loans sold on or after July 28, 2004
, that is not a Delinquent Loan and,
unless it is a Permitted Deferred Loan, it has never been a
Defaulted Loan, as of the Addition Cut-Off Date.
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that does not
finance the purchase of credit life insurance;
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with
respect to any Loan sold prior to July 28, 2004
, no Due Date thereunder occurring
after the Cut-Off Date or the related Addition Cut-Off Date, as
applicable, has been deferred; ( this provision (k) shall not
be applicable to Loans sold on or after July 28, 2004
);
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with
respect to Loans sold prior to July 28, 2004
, the related Timeshare Property (A)
consists of a Fixed Week or a UDI and (B) if it consists of a
Fixed Week, it has been converted into a UDI or has become
subject to the FairShare Plus Program, which conversion or other
modification does not give rise to the extension of the maturity of
any payments under such Series 2002 1 Loan; or
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with
respect to Loans sold on or after July 28, 2004
, the related Timeshare Property (A)
consists of a Fixed Week or a UDI and (B) if it consists of a
Fixed Week, (i) it has been converted or is convertible into a
UDI or has become subject to the FairShare Plus Program, which
conversion into a UDI or any modification made in connection with
the FairShare Plus Program does not or would not give rise to the
extension of the maturity of any payments under such Series 2002 1
Loan or with respect to Loans sold on or after November 14,
2005 (ii) it is an Acquired Portfolio Loan;
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that (i) either
(A) has been transferred by FRI to CTRG-CF pursuant to the
Operating Agreement, (B) in the case of any Series 2002 1 Loan
originated by an Originator other than FRI or any Loan related to
the Dolphin’s Cove Resort, has been transferred by such
Originator to FRI pursuant to the Operating Agreement and in the
case of any Loan related to the Dolphin’s Cove Resort, was
originated by Dolphin’s Cove Resort, Ltd., a California
limited partnership, and was transferred to FRI pursuant to a
receivables purchase agreement dated December 29, 2000 by and
between Dolphin’s Cove Resort, Ltd. and FRI or (C) with
respect to Loans sold on or after November 14, 2005 , was
originated by another entity and transferred to CTRG-CF pursuant to
the Operating Agreement or pursuant to another agreement acceptable
to CTRG-CF and the originator has provided to the Company a written
quitclaim of all right, title and interest of such originator in
the Loan which quitclaim shall be substantially similar to those
provisions contained in Section 2(h) of this PA Supplement and (ii)
in the case of any Loans sold to the Purchaser on the Closing Date,
such Loans were sold by Fairfield Receivables Corporation to
CTRG-CF pursuant to an Assignment of Contracts and Mortgages, dated
as of August 29, 2002;
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that was
originated by an Originator and has been consistently serviced by
CTRG-CF, in each case in the ordinary course of its respective
business and in accordance with Customary Practices and Credit
Standards and Collection Policies; or, with respect to Loans
sold on or after November 14, 2005 , was acquired by CTRG-CF
directly or indirectly from the originator of such Loan and within
a period of not more than 120 days after such acquisition, CTRG-CF
has undertaken the servicing of such Loan either directly or
through a contractual agreement with a third party reasonably
acceptable to CTRG-CF;
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that has not
been specifically reserved against by the Seller or classified by
CTRG-CF or FRI as uncollectible or charged off;
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that arises
from transactions in a jurisdiction in which FRI and each
Subsidiary of FRI (other than the Purchaser and the Issuer) that
conducts business in such jurisdiction is duly qualified to do
business, except where the failure to so qualify will not adversely
affect or impair the legality, validity, binding effect and
enforceability of such Series 2002-1 Loan;
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that has not
been cancelled or terminated by the related Obligor (regardless of
whether such Obligor is legally entitled to do so) and constitutes
a legal, valid, binding and enforceable obligation of the related
Obligor, except as such enforceability may be limited by Debtor
Relief Laws and as such enforceability may be limited by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
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that is fully
amortizing pursuant to a required schedule of substantially equal
monthly payments of principal and interest;
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with respect to
which (i) the downpayment has been made and (ii) no statutory
rescission rights with respect to the related Obligor are
continuing as of the Cut-Off Date or related Addition Cut-Off Date,
as applicable;
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that had an
Equity Percentage of 10% or more at the time of the sale of the
related Timeshare Property to the related Obligor (or, in the case
of a Loan relating to a Timeshare Upgrade, an Equity Percentage of
10% or more of the value of all vacation credits owned by the
related Obligor);
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with respect to
which the related Obligor has not at any time made a written
request for rescission of such Series 2002-1 Loan or otherwise
stated in writing that it does not intend to consummate such Loan
or to fully perform under such Series 2002-1 Loan;
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that is not a
Series 2002-1 Loan originated under an Alliance Program;
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with respect to
which at least one Scheduled Payment has been made by the
Obligor;
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as of the
Cut-Off Date or related Addition Cut-Off Date, as applicable, has
an outstanding loan balance not greater than $100,000;
and
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that, in the
case of a Green Loan, (i) satisfies each of the eligibility
criteria set forth in paragraphs (a) through (x) above other than
any such criteria that cannot be satisfied due solely to (A) the
related Green Timeshare Property being located in a Resort that is
not yet complete and ready for occupancy; (B) the Seller not
having a valid ownership interest in the related Green Timeshare
Property; or (C) the related Green Timeshare Property not having
been deeded to the Obligor or legal title not being held by the
Nominee; and (ii) the related Green Timeshare Property has a
scheduled completion date no more than six months following the
Cut-Off Date or related Addition Cut-Off Date, as
applicable.
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“ Excess Concentration Amount
” shall have the meaning set forth in the Series 2002-1
Supplement.
“ Noteholder ” shall mean any
Series 2002-1 Noteholder and any holder of a note of any Additional
Series.
“ PA Supplement ” shall have
the meaning set forth in the preamble.
“ Permitted Deferred Loan ”
shall mean a Loan with respect to which the Obligor has been
granted an extension of the time required to pay the amounts due
thereon, provided that (i) any such extension was made in
accordance with the Credit Standards and Collection Policies and
Customary Practices and (ii) such Loan is not a Delinquent Loan as
of the Addition Cut-Off Date.
“ Pool Purchase Price ” shall
have the meaning set forth in Section 3.
“ Purchase ” shall have the
meaning set forth in Section 2(e).
“ Purchaser ” shall have the
meaning set forth in the preamble.
“ Repurchase Date ” shall
have the meaning set forth in Section 7.
“ Repurchase Price ” shall
have the meaning set forth in Section 7.
“ Series Termination Date ”
shall mean, with respect to Series 2002-1, the date on which all
obligations with respect to the Series 2002-1 Notes issued under
the Series 2002-1 Supplement have been paid in full and the Series
2002-1 Supplement is discharged and, with respect to any Additional
Series, the date set forth in the related Indenture and Servicing
Agreement.
“ Series 2002-1 Additional Loan
” shall mean each Additional Loan constituting one of the
Series 2002-1 Loans Purchased from the Seller on an Addition
Cut-Off Date and listed on Schedule 1 to the related
Assignment.
“ Series 2002-1 Loan
̶
