Exhibit 10.9
FIRST AMENDMENT OF CREDIT AGREEMENT
BETWEEN
TRENDWEST RESORTS, INC.,
AND
TRENDWEST SOUTH PACIFIC PTY. LTD.,
AS THE BORROWERS,
THE LENDERS NAMED HEREIN,
AS THE LENDERS,
KEYBANK NATIONAL ASSOCIATION,
AS LEAD ARRANGER AND ADMINISTRATIVE AGENT FOR THE LENDERS
AND AS LETTER OF CREDIT ISSUING LENDER,
AND
BANK ONE NA,
AS SYNDICATION AGENT FOR THE LENDERS AND AS AUSTRALIAN LENDER
DATED AS OF JANUARY 19, 2001
FIRST AMENDMENT OF CREDIT AGREEMENT
This First Amendment of Credit Agreement (the "Amendment") is made and
entered into as of January 19, 2001, between TRENDWEST RESORTS, INC., an Oregon
corporation ("Trendwest"), and TRENDWEST SOUTH PACIFIC PTY. LTD., a corporation
organized and existing under the laws of the Commonwealth of Australia ("South
Pacific"), each of the financial institutions shown on the signature pages to
this Amendment (the "Lenders"), KEYBANK NATIONAL ASSOCIATION, as Administrative
Agent and Issuing Lender (as the case may be, the "Agent" or the "Issuing
Lender"), and BANK ONE NA, as Syndication Agent and Australian Lender (the
"Australian Lender").
PREAMBLE
1. Trendwest and South Pacific (collectively, the "Borrowers") entered
into a Credit Agreement dated as of August 14, 2000 (the "Original Credit
Agreement") pursuant to which the Lenders and Issuing Lender provided certain
credit facilities to the Borrowers.
2. In order to provide the Borrowers with additional operating
flexibility, the Borrowers wish to obtain from the Lenders certain modifications
of the Credit Agreement (collectively, the "Requested Modifications").
3. The Agent, Lenders, Issuing Lender, and Australian Lender
(collectively, the "Lender Parties") are willing to agree to the Requested
Modifications on the terms set forth in this Amendment.
4. Unless otherwise defined in this Amendment, capitalized terms used in
this Amendment have the meanings assigned to such terms in the Original Credit
Agreement.
TERMS OF AMENDMENT
NOW, THEREFORE, the Borrowers and Lender Parties agree as follows:
1. The definition of "Eligible Inventory Amount" in Section 1.1 of the
Original Credit Agreement is amended to read as follows:
"Eligible Inventory Amount" as of any date during any Fiscal Year
means the lesser of (a) 50% of the aggregate amount of Eligible
Inventory or (b) Forty Million Dollars ($40,000,000).
2. The definition of "Revolving Loan Limit" in Section 1.1 of the
Original Credit Agreement is amended to read as follows:
"Revolving Loan Limit" means a Dollar amount equal to the lesser
of (a) the Revolving Commitment, or (b) an amount equal to the sum of
the Eligible Inventory Amount plus 75% of the Dollar amount of Eligible
Receivables.
3. Clause (B) of the proviso to Section 2.1(e)(i) of the Original Credit
Agreement is amended to read "with respect to any Australian Advance, the
Australian Currency Equivalent of $100,000 and integral multiples of the
Australian Currency Equivalent of $100,000 in excess of such amount."
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4. Exhibit C to the Original Credit Agreement is amended by (a) deleting
Items IV.D. and IV.E., (b) re-lettering Item IV.F. as IV.D., and (c) amending
Item IV.F. to read "Revolving Loan Limit (Lesser of I.F. or IV.D.).
5. As partial consideration for the Requested Modifications, the
Borrowers represent and warrant to the Lender Parties as follows:
(a) Corporate Authority; Conflict. The execution, delivery and
performance by the Borrowers of this Amendment are within the Borrowers'
corporate powers, have been duly authorized by all necessary corporate
action, and require no action by or in respect of, or filing with, any
governmental body, agency or official, and the execution, delivery and
performance by the Borrowers of this Amendment do not contravene, or
constitute a default under, any provision of applicable law or
regulations or of the certificate or articles of incorporation or the
bylaws of the Borrowers or any of their Subsidiaries or any material
agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrowers or any of their Subsidiaries.
(b) Enforceability. This Amendment constitutes the valid and
binding obligations of the Borrowers, enforceable against the Borrowers
in accordance with their terms, except as enforceability may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
remedies, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(c) No Event of Default. No Possible Default or Event of Default
has occurred and is continuing, and the representations and warranties
of the Borrowers contained in the Original Credit Agreement and the
other documents delivered pursuant to the Original Credit Agreement true
and correct in all material respects as of the date of this Amendment as
if made on the date of this Amendment.
(d) Possible Claims and Defenses. The Borrowers have no claims or
defenses against any person or entity that would or might affect (i) the
enforceability of any provisions of the Original Credit Agreement, as
modified by this Amendment (collectively, the "Amended Credit
Agreement"), or (ii) the collectability of sums advanced by the Lender
Parties pursuant to the Original Credit Agreement or the Amended Credit
Agreement.
6. The Lender Parties obligations under this Amendment are subject to
satisfaction of the following conditions on or prior to the date on which this
Amendment is executed by the Borrowers and the Lender Parties:
(a) Resolutions. The Agent shall have received certified copies
of the resolutions of the Borrowers' Boards of Directors approving the
execution, delivery, and performance of this Amendment, together with
evidence of the authority and specimen signatures of the persons who
have signed the Amendment.
(b) Opinion of Borrowers' Counsel. The Agent shall have
received a legal opinion from Borrowers' counsel in form and substance
satisfactory to the Agent.
(c) Payment of Expenses. The Borrowers shall have reimbursed the
Lender Parties for all legal fees and expenses incurred by the Lender
Parties in connection with the preparation of this Amendment and any
related documents.
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(d) Representations and Warranties. The representations and
warranties set forth in Section 4 of this Amendment shall be true and
correct.
(e) Subordination Agreement. The Borrowers shall have executed
and delivered to the Lender Parties a subordination agreement with
respect to the JELD-WEN Debt, which agreement shall be in form and
substance satisfactory to the Lender Parties, in their sole discretion.
(f) Other Documents. The Lender Parties shall have received
such other documents and instruments as they may reasonably request.
7. Nothing in this Amendment will be construed to obligate the Lender
Parties to consent to any further modification of the terms of the Original
Credit Agreement, the Amended Credit Agreement or any other document.
8. The Borrowers hereby acknowledge that it expects to receive no
further accommodations from the Lender Parties, and that this Amendment will not
be construed to create any course of dealing between the Borrowers and the
Lender Parties.
9. Except as expressly set forth in this Amendment, the execution,
delivery, and performance of this Amendment will not operate as a waiver or
amendment of any right, power, or remedy of the Lender Parties or the Borrowers
under the Original Credit Agreement or any related document.
10. Except as otherwise expressly set forth in this Amendment, all of
the terms, conditions, and covenants of the Original Credit Agreement remain in
full force and effect. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, TO
EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
11. This Amendment may be executed and delivered in separate
counterparts, all of which taken together will constitute one and the same
instrument. Each party to this Amendment may accomplish such execution and
delivery by signing a counterpart of this Amendment and sending such counterpart
by facsimile to the other party. Upon the request of either party, the other
party will deliver an executed original of this Amendment, provided, however,
that the failure to deliver such original will not affect the validity,
enforceability, and/or binding effect of this Amendment.
This Amendment has been executed and delivered by duly authorized
officers of the Borrowers and the Lender Parties, as of the date specified
above.
BORROWERS: LENDERS:
TRENDWEST RESORTS, INC. KEYBANK NATIONAL ASSOCIATION,
In its individual capacity as a Lender
and Issuing Lender
By /s/ Tim O'Neil By /s/ Cheryl L. Ebner
---------------------------- ----------------------------
Its Tim O'Neil Its Cheryl L. Ebner, Senior Vice
Chief Financial Officer President
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TRENDWEST
SOUTH PACIFIC PTY. LTD. BANK ONE NA,
In its individual capacity as a Lender and
Australian Lender
By /s/ Tim O'Neil
----------------------------
Tim O'Neil
Director
By /s/ Joseph R. Perdenza
----------------------------
Its Assistant Vice President
ADMINISTRATIVE AGENT:
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By /s/ Cheryl L. Ebner
----------------------------
Its Cheryl L. Ebner, Senior Vice
President
SYNDICATION AGENT:
BANK ONE NA,
as Syndication Agent
By /s/ Joseph R. Perdenza
----------------------------
Its Assistant Vice President
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