TW HOLDINGS, INC.,
as Seller
SEAFIRST BANK
AND THE OTHER PURCHASERS NAMED HEREIN
as Purchasers,
BANK OF AMERICA
as Agent,
and
TRENDWEST RESORTS, INC.,
as Master Servicer
------------------------------
AMENDMENT NUMBER TWO
DATED AS OF JUNE 18, 1998
TO SECOND AMENDED AND RESTATED
RECEIVABLES TRANSFER AGREEMENT
DATED AS OF JUNE 1, 1997
------------------------------
This Amendment Number Two dated as of June 18, 1998 (this "Amendment") to
Second Amended and Restated Receivables Transfer Agreement dated as of June 1,
1997, (as amended December 30, 1997, the "Receivables Transfer Agreement"), is
made among TW HOLDINGS, INC., a Nevada corporation (the "Seller"), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association
("BANK OF AMERICA"), and the other purchasers named in the Receivables Transfer
Agreement (collectively, the "Purchasers"), BANK OF AMERICA as agent for the
Purchasers (in such capacity, the "Agent"), and TRENDWEST RESORTS, INC., an
Oregon corporation ("TRI" or, in its capacity as Master Servicer, the "Master
Servicer"). Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Receivables Transfer Agreement.
RECITALS
WHEREAS, the Seller, the Purchasers, the Agent and TRI executed the
Receivables Transfer Agreement; and
WHEREAS, pursuant to Section 15.7 thereof, the Receivables Transfer
Agreement may be amended or modified by written agreement of the Seller and the
Agent; and
WHEREAS, pursuant to Section 12.1 of the Receivables Transfer Agreement,
the Agent may, on the instructions of the Required Purchasers and with the prior
written consent of all Purchasers, agree to any change or modification of the
Receivables Transfer Agreement; and
WHEREAS, the Seller, the Purchasers, the Agent, and TRI wish to amend the
Receivables Transfer Agreement by making the changes and additions set forth
herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
Section 1. Section 1.1 of the Receivables Transfer Agreement is amended by
adding, in alphabetical order, the following definitions:
"Consolidated Charge-off Rate" means, as of any Settlement Date, the
average of the Consolidated Monthly Charge-off Rates for the three Collection
Periods immediately preceding the Collection Period in which such Settlement
Date occurs.
"Charge-off Factor" means, with respect to any Collection Period, a
fraction of which the numerator is 365 and the denominator is the number of days
in such Collection Period. Section 2. The definition of "Consolidated Monthly
Charge-off Rate" in Section 1.1 of the Receivables Transfer Agreement is amended
to read:
"Consolidated Monthly Charge-off Rate" means, with respect of any
Collection Period, a fraction, expressed as a percentage, the numerator of which
is the product of (x) the Charge-off Factor for such Collection Period and (y)
the sum of (i) the Outstanding Principal Balance of all Receivables included in
the Receivables Pool that were charged-off and (ii) the outstanding principal
balance 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 Balance of all Receivables included in the
Receivables Pool and (ii) the average outstanding principal balance of all
Originator Receivables, in each case for each day in such Collection Period.
Section 3. In the definition of "Commitment Termination Date" in Section
1.1 of the Receivables Transfer Agreement, "June 30, 1998" is changed to June
17, 1999.
Section 4. In the definition of "Interest Rate Protection Date" in Section
1.1 of the Receivables Transfer Agreement, "8%" is changed to "7%."
Section 5. In the definition of "Margin" in Section 1.1 of the Receivables
Transfer Agreement, "1.25%" is changed to "1.125%" and "2%" is changed to
"1.625%."
Section 6. The definition of "Monthly Charge-off Rate" in Section 1.1 of
the Receivables Transfer Agreement is amended to read:
"Monthly Charge-off Rate" means, with respect to any Collection Period, a
fraction, expressed as a percentage, the numerator of which is the product of
(x) the Charge-off Factor for such Collection Period and (y) the Outstanding
Principal Balance 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 Balance of all Receivables included
in the Receivables Pool for each day in such Collection Period.
Section 7. The Receivables Transfer Agreement is amended by adding the
following new section:
Section 2.3. Extension of Commitment Termination Date. The Seller may
request, on an annual basis, a 364-day extension of the Commitment Termination
Date. Such request must be delivered in writing to the Agent and each Purchaser
no later than 60 days prior to the then- scheduled Commitment Termination Date.
Each Purchaser shall notify the Seller and the Agent in writing no later than 30
days 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 364 days. If any Purchaser does not
notify the Agent in writing that it agrees to such an extension at least 30 days
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 13.2, 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 following on or before the then-scheduled Commitment Termination
Date) such declining Purchaser's 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 and clear of Liens created by or arising under such declining
Purchaser. If the Seller designates another bank or financial institution
pursuant to the immediately 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 8. Section 7.1 of the Receivables Transfer Agreement is amended by
adding the following new paragraph at the end:
(n) Year 2000. On the basis of a comprehensive review and assessment of the
Seller's systems and equipment and inquiry made of the Seller's material
suppliers, vendors and customers, the Seller reasonably believes that the "Year
2000 Problem" (that is, the inability of computers, as well as imbedded
microchips in non-computing devices, to perform properly date-sensitive
functions with respect to certain dates prior to and after December 31, 1999),
including costs of remediation, will not result in a material adverse change in
the operations, business, properties, condition (financial or otherwise) or
prospects of the Seller. The Seller has developed feasible contingency plans
adequate to ensure uninterrupted and unimpaired business operation in the event
of failure of its own or a third party's systems or equipment due to the Year
2000 Problem, including those of vendors, customers, and suppliers, as well as a
general failure of or interruption in its communications and delivery
infrastructure.
Section 9. Section 9.1(c) of the Receivables Transfer Agreement is amended
by deleting from clause (i) the expression "12% per annum or . . ."
Section 10. Section 11.1 of the Receivables Transfer Agreement is amended
by deleting paragraph (o) in its entirety and substituting this new paragraph:
(o) Occurrence of the Commitment Termination Date.
Section 11. Section 15.2 of the Receivables Transfer Agreement is amended
by deleting from the second proviso to the second sentence the words "not later
than" and substituting in lieu thereof the words "as close as possible to . . ."
Section 12. Section 15.5 of the Receivables Transfer Agreement is amended
by changing clauses (iii) and (iv) to read:
(iii) The Purchasers
c/o Bank of America
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(iv) Bank of America, as Agent
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Section 13. Section 15.12 of the Receivables Transfer Agreement is amended
by renumbering clause (vi) as clause (vii) and adding a new clause (vi) as
follows:
(vi) to affiliates of the Agent in connection with the performance of any
duties relating to this Agreement . . .
Section 14. As the agency function for this transaction has been
transferred from Seattle to Chicago, all references in the Receivables Transfer
Agreement to "Seafirst" are deemed references to "Bank of America."
Section 15. Sections 1, 2, 6, 9, and 13 of this Amendment are effective as
of June 30, 1997 and Sections 3, 4, 5, 7, 8, 10, 11, 12, and 14 are effective as
of the date of this Amendment.
Section 16. Notwithstanding the definition of "Yield Period" contained in
Section 1.1 of the Receivables Transfer Agreement, the next Yield Period shall
commence on the date of this Amendment and end on July 10, 1998.
Section 17. The Purchasers each hereby instruct the Agent to amend the
Receivables Transfer Agreement as set forth above and further consent to such
amendment.
Section 18. This Amendment may be executed in counterpart signatures by the
parties hereto, which, when taken together, shall constitute one binding
instrument among the parties hereto.
Section 19. The Seller, the Purchasers, the Agent, TRI, and the Master
Servicer hereby further ratify, confirm and approve all of the provisions of the
Receivables Transfer Agreement and their applicability hereto. Except as
expressly amended by the terms hereof, the terms of the Receivables Transfer
Agreement shall remain in full force and effect.
Section 20. The Seller hereby represents and warrants that (i) the
respective representations and warranties made by the Seller in the Receivables
Transfer Agreement are true and correct with the same force and effect as though
made on and as of the date hereof and (ii) no Termination Event or Unmatured
Termination Event has occurred and is continuing nor will occur as a result of
amending the Receivables Transfer Agreement in the manner set forth above.
Section 21. The Master Servicer hereby represents and warrants that (i) the
respective representations and warranties made by the Master Servicer in the
Receivables Transfer Agreement are true and correct with the same force and
effect as though made on and as of the date hereof and (ii) no Termination Event
or Unmatured Termination Event has occurred and is continuing nor will occur as
a result of amending the Receivables Transfer Agreement in the manner set forth
above.
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 hereto have caused this Amendment to be
executed on their behalf by their officers duly authorized thereunto, as of the
day and year first above written.
TW HOLDINGS, INC., as Seller
By ____________________________________
Name: _____________________________
Title: _____________________________
TRENDWEST RESORTS, INC., as Master
Servicer
By ____________________________________
Name: _____________________________
Title: _____________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
By ____________________________________
Name: _____________________________
Title: _____________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Purchaser
By ____________________________________
Name: _____________________________
Title: _____________________________
FIRST NATIONAL BANK OF CHICAGO
By ____________________________________
Name: _____________________________
Title: _____________________________
SOCIETE GENERALE
By ____________________________________
Name: _____________________________
Title: _____________________________
THE BANK OF TOKYO-MITSUBISHI, LTD., as Purchaser
By ____________________________________
Name: _____________________________
Title: _____________________________
KEYBANK NATIONAL ASSOCIATION
By ____________________________________
Name: _____________________________
Title: _____________________________
SANWA BANK CALIFORNIA
By ____________________________________
Name: _____________________________
Title: _____________________________
FIRST SECURITY BANK OF IDAHO, N.A.
By ____________________________________
Name: _____________________________
Title: _____________________________
U.S. BANK NATIONAL ASSOCIATION
By ____________________________________
Name: _____________________________
Title: _____________________________
