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EXHIBIT 10.12
EXECUTION COPY
TRENDWEST RESORTS, INC.,
as Originator
and
TW HOLDINGS, INC.,
as Buyer
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 1, 1993
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitional Provisions................................................. -1-
Section 1.02. Certain Other Definitional Provisions................................... -2-
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Right to Use Receivables.................................. -2-
Section 2.02. Representations and Warranties as to
the Originator............................................... -4-
Section 2.03. Representations and Warranties as to
the Right to Use Receivables;
Repurchase Upon Breach....................................... -7-
Section 2.04. Affirmative Covenants of the Originator................................. -8-
Section 2.05. Negative Covenants of the Originator.................................... -10-
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price............................................... -11-
ARTICLE FOUR
TERMINATION
Section 4.01. Termination............................................................. -11-
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment............................................................... -12-
Section 5.02. Protection of Right, Title and Interest
to Right to Use Receivables.................................. -12-
Section 5.03. Governing Law........................................................... -13-
Section 5.04. Notices................................................................. -13-
Section 5.05. Severability of Provisions.............................................. -13-
Section 5.06. Assignment.............................................................. -14-
Section 5.07. Further Assurances...................................................... -14-
Section 5.08. No Waiver; Cumulative Remedies.......................................... -14-
Section 5.09. Counterparts............................................................ -14-
Section 5.10. Third-Party Beneficiaries............................................... -14-
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Section 5.11. Merger and Integration........................................ -14-
Section 5.12. Headings...................................................... -14-
Section 5.13. Originator Indemnification.................................... -15-
Section 5.14. Assumption of the Obligations of the
Originator........................................... -15-
Schedule A Schedule of Right to Use Receivables.......................... SA-1
Exhibit A Form of UCC-1................................................. X-0
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XXXXXXXXXXX XXXXXXXX AGREEMENT, dated as of December 1, 1993, between
TRENDWEST RESORTS, INC., an Oregon corporation, as seller ("TRI" or the
"Originator"), and TW HOLDINGS, INC., a Nevada corporation, as purchaser (the
"Buyer").
RECITALS
WHEREAS, the Buyer is in the business of purchasing from time to time,
among other things, certain right to use timeshare receivables (the "Right to
Use Receivables") originated by the Originator;
WHEREAS, pursuant to a receivables transfer agreement, dated as of the
date of this Agreement (the "Transfer Agreement"), among TW HOLDINGS, INC., as
seller (the "Seller"), the purchasers named therein (the "Purchasers"),
Seattle-First National Bank, as agent (the "Agent"), and JELD-WEN, inc., as
master servicer (the "Master Servicer"), the Purchasers will purchase from time
to time certain Receivables from the Seller which right to use timeshare
receivables (the "Right to Use Receivables") the Seller shall purchase from time
to time from the Originator and which mortgage loan receivables (the "Mortgage
Loan Receivables" and, together with the Right to Use Receivables, the
"Receivables") the Seller shall purchase from time to time from Eagle Crest
Partners, Ltd. ("Eagle Crest" and, together with TRI, the "Originators"); and
WHEREAS, in connection with the transaction contemplated by the
Transfer Agreement, TRI will sell, transfer and assign Right to Use Receivables
to the Buyer from time to time and the Buyer will, among other things, grant a
first perfected security interest in such Right to Use Receivables to the Agent
for the benefit of the Purchasers.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Transfer Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section , subsection and
Schedule references contained
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in this Agreement are references to Sections , subsections and Schedules in or
to this Agreement unless otherwise specified; with respect to all terms in this
Agreement, the singular includes the plural and the plural includes the
singular; words importing gender include the other gender; references to
"writing" include printing, typing, lithography and other means of reproducing
words in 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 1.02. Certain Other Definitional Provisions. Whenever
used in this Agreement, the following words and phrases shall have
the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Buyer" means TW HOLDINGS, INC., in its capacity as purchaser of the
Right to Use Receivables under this Agreement, and any successor thereto.
"Initial Right to Use Receivables" means the Right to Use Receivables
comprising part of the Receivables Pool as of the Closing Date.
"Schedule of Right to Use Receivables" means the Schedule of Right to
Use Receivables attached as Schedule A hereto and as an Exhibit to the Transfer
Agreement, as it may be amended from time to time.
"Transfer Agreement" means the Receivables Transfer Agreement dated as
of December 1, 1993, among TW HOLDINGS, INC., Seattle- First National Bank, as
Purchaser, Seattle-First National Bank, as Agent, and JELD-WEN, inc,, as Master
Servicer.
"TRI" shall mean Trendwest Resorts, Inc., and any successors
thereto.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Right to Use Receivables.
(a) In the case of the Initial Receivables that are Right to Use
Receivables, on the Closing Date the Originator does hereby sell, transfer and
assign to the Buyer, without recourse (subject to its obligations hereunder):
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(i) all right, title and interest of the Originator in and to
the Initial Receivables that are Right to Use Receivables, all Related
Security with respect to such Right to Use Receivables, all related
Receivable Documents and all collections due on or in respect of such
Right to Use Receivables and paid thereon or in respect thereof
(including proceeds of the repurchase of Initial Receivables that are
Right to Use Receivables by the Originator pursuant to Section 2.03(b))
on or after the Initial Cutoff Date;
(ii) the interest of the Originator in the security interests
in and liens on such Right to Use Receivables and any accessions
thereto granted by the Obligors pursuant to such Right to Use
Receivable;
(iii) the interest of the Originator in any proceeds of any
insurance policies covering such Right to Use Receivables and in any
proceeds of any credit life or credit disability insurance policies
relating to such Right to Use Receivables or the related Obligors;
(iv) all proceeds of the foregoing.
(b) In the case of the Subsequent Receivables that are Right to Use
Receivables, on the related Transfer Dates occurring from time to time prior to
the Commitment Termination Date, the Originator will sell, transfer and assign
to the Buyer, without recourse (subject to its obligations hereunder):
(i) all right, title and interest of the Originator in and to
the related Subsequent Receivables that are Right to Use Receivables,
all Related Security with respect to such Right to Use Receivables, all
related Receivable Documents and all collections on or in respect of
such Right to Use Receivables and paid thereon or in respect thereof
(including proceeds of the repurchase of such Subsequent Receivables
that are Right to Use Receivables by the Originator pursuant to Section
2.03(b)) on or after the related Subsequent Cutoff Date;
(ii) the interest of the Originator in the security interests
in and liens on such Right to Use Receivables and any accessions
thereto granted by the Obligors pursuant to such Right to Use
Receivables;
(iii) the interest of the Originator in any proceeds of any
physical damage and title insurance policies covering such Right to Use
Receivables and in any proceeds of any credit life or credit disability
insurance policies relating to such Right to Use Receivables or the
related Obligors;
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(iv) all proceeds of the foregoing.
(c) In connection with each such conveyance, on or prior to the related
Transfer Date, as the case may be, the Originator agrees to record and file, at
its own expense, a financing statement with respect to the related Right to Use
Receivables meeting the requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect the sale and assignment of
such Right to Use Receivables to or upon the order of the Buyer, and the
proceeds thereof as may be perfected by filing a financing statement (and any
continuation statements as are required by applicable state law), and to deliver
a file-stamped copy of each such financing statement (or continuation statement)
or other evidence of such filings (which may, for purposes of this Section ,
consist of telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Buyer in due course), as soon as is
practicable after the Originator's receipt thereof.
In connection with each such conveyance, the Originator further agrees,
at its own expense, on or prior to the related Transfer Date, (i) to indicate in
its computer files that the related Right to Use Receivables have been
transferred to the Buyer pursuant to this Agreement and (ii) to deliver to the
Buyer a computer file or microfiche list containing a true and complete list of
all such Right to Use Receivables, and containing the information with respect
thereto required by the Schedule of Right to Use Receivables and (iii) to
deliver to the Buyer and the Agent a Schedule of Right to Use Receivables with
respect to such Right to Use Receivables, which shall be added to all Schedules
of Right to Use Receivables delivered to the Buyer and the Agent prior to such
Transfer Date and appears as Schedule A hereto.
(d) On each Transfer Date, the Originator shall deliver to or upon the
order of the Buyer, the documents relating to the related Right to Use
Receivables called for pursuant to Section 2.05 of the Transfer Agreement.
(e) From time to time, the Originator can substitute a new Right to Use
Receivable that is an Eligible Receivable for a Receivable that is either a
Defaulted Receivable or is otherwise no longer an Eligible Receivable, upon the
terms and conditions in Section 15.02 of the Transfer Agreement.
Section 2.02. Representations and Warranties as to the Originator. The
Originator hereby represents and warrants as of the date and execution of this
Agreement, the Closing Date and each Transfer Date that:
(a) Organization and Good Standing. The Originator shall have
been duly organized under the laws of the State of
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Oregon and shall be validly existing as a corporation whose status is
active, 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, sell
and service the Right to Use Receivables.
(b) Due Qualification. The Originator 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 Originator.
(c) Power and Authority. The Originator shall have the power
and authority to execute, deliver and perform its obligations under
this Agreement and each other Facility Document to which it is a party
or by which it is bound and to carry out their respective terms; the
Originator shall have full power and authority to sell and assign the
Right to Use Receivables to be sold and assigned to and deposited with
the Buyer and shall have duly authorized such sale and assignment to
the Buyer 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 or by which it is bound shall have been
duly authorized by the Originator by all necessary corporate action.
(d) Valid Transfer and Assignment; Binding Obligations. This
Agreement shall evidence a valid transfer and assignment of the Right
to Use Receivables, enforceable against creditors of and purchasers
from the Originator; and shall constitute a legal, valid and binding
obligation of the Originator 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,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Facility
Documents to which the Originator is a party or by which it is
bound and the fulfillment of the terms of this Agreement shall
not conflict with, result in any breach of any of the terms
and provisions of, nor constitute (with or without notice or
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lapse of time) a default under, the articles of incorporation or bylaws
of the Originator, or conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Originator is a party or by which it shall be bound; nor
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 (other than the Lien created by this Agreement, the
Lien created by the Transfer Agreement and the Liens of WorldMark); nor
violate any law or, to the best of the Originator's knowledge, any
order, rule or regulation applicable to it of any court or of any
federal or state regulatory body, administrative agency or other
Governmental Authority having jurisdiction over it or its properties;
which breach, default, conflict, lien or violation would have a
material adverse effect on its condition, financial or otherwise, or
its earnings, business affairs or business prospects.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the best of the Originator's knowledge, threatened,
before any court, regulatory body, administrative agency or other
Governmental Authority having jurisdiction over it or its properties:
(i) asserting the invalidity of any other Facility Document to which it
is a party or by which it is bound, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any Facility
Document to which it is a party or by which it is bound, or (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by the Originator of its obligations under, or
the validity or enforceability of any Facility Document to which it is
a party or by which it is bound.
(g) 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 Originator of any Facility Document to which it is a party by
which it is bound with the transactions contemplated thereby except
such as have been obtained prior to the date of this Agreement and are
in full force and effect (copies of which have been delivered to the
Buyer and the Agent).
(h) Licenses. The Originator 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
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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 any Facility
Agreement to which it is a party or by which it is bound or any other
documents or transactions contemplated hereunder or thereunder or the
validity or enforceability of the Right to Use Receivables.
(i) Offices. The principal place of business and chief
executive office of TRI is located at the address set forth in Section
5.04.
(j) Taxes. The Originator has filed all tax returns and
reports required of it, has paid all Taxes which are due and payable
and has provided adequate reserves for payment of any Tax whose payment
is being contested; all charges, accruals and reserves on its books in
respect of Taxes for all fiscal periods to date are accurate; and there
are no material questions or disputes between the Originator and any
Governmental Authority with respect to any Taxes.
(k) Compliance with Applicable Laws. The Originator is in
material compliance with the requirements of all applicable laws,
rules, regulations and orders of all Governmental Authorities.
(1) Ownership Interests. The Originator is a wholly owned
subsidiary of JELD-WEN.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the related Right to Use Receivables to
the Buyer on the related Transfer Date and the transfer and assignment of such
Right to Use Receivables by the Buyer to the Purchasers pursuant to the Transfer
Agreement. Each of the Originator and the Buyer shall inform the other party
promptly, in writing, upon the discovery of any breach of the foregoing
representations and warranties.
Section 2.03. Representations and Warranties as to the Right
to Use Receivables; Repurchase Upon Breach.
(a) In connection with each transfer of Right to Use Receivables to the
Buyer, as of the related Transfer Date, each such Right to Use Receivable
satisfies each of the representations and warranties set forth in Section 7.02
of the Transfer Agreement.
(b) The representations and warranties set forth in this Section shall
survive the transfer and assignment of the Right to Use Receivables to the Buyer
and the transfer and assignment of such Right to Use Receivables by the Buyer to
the Purchasers pursuant to the Transfer Agreement. Each of the Originator and
the
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Purchaser shall inform the other party promptly, in writing, upon the discovery
of any breach of the Originator's representations and warranties pursuant to
Section 2.03(a) which materially and adversely affects any Right to Use
Receivable. Unless the breach shall have been cured in all material respects by
the 60th day following its discovery, the Originator will repurchase such Right
to Use Receivable by remitting an amount equal to the related Purchase Amount to
or upon the order of the Buyer. The sole remedy of the Buyer with respect to a
breach of the foregoing representations and warranties which materially and
adversely affects any Right to Use Receivable shall be to require the Originator
to repurchase such Right to Use Receivable.
(c) Upon the payment by the Originator of the Purchase price for any
Right to Use Receivable repurchased pursuant to this Section , the Buyer shall
cause such instruments as may be necessary to assign and transfer, without
recourse or warranty of any kind, such Right to Use Receivable and the related
Related Security and Receivable Documents to the Originator.
Section 2.04. Affirmative Covenants of the Originator. The Originator
hereby covenants that from the date hereof until the first day following the
Commitment Termination Date on which (1) the Outstanding Principal Balance of
the Right to Use Receivables comprising part of the Receivables Pool shall be
reduced to zero and (ii) all Obligations shall have been fully paid and
performed, the Originator shall do all of the following unless the Buyer or the
Agent (acting upon the direction of the Required Purchasers) shall otherwise
consent in writing:
(a) The Originator shall comply in all material respects with
all applicable laws, rules, regulations and orders, including but not
limited to all applicable laws, rules, regulations and orders with
respect to the Right to Use Receivables and the Assigned Collateral
relating thereto 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 Originator shall preserve and maintain its corporate
existence, rights, franchises and privileges in the State of Oregon,
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 and upon
at least three days' prior written notice, the Originator shall permit
the Buyer, the Agent, any Purchaser and their respective agents and
representatives (i) to examine and make
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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 Originator and (ii) to visit the
offices and properties of the Originator for the purpose of examining
such materials and to discuss matters relating to the Right to Use
Receivables, the performance of the Originator under any Facility
Document to which it is a party or by which it is bound and affairs,
finances and accounts of the Originator generally with any of its
officers, directors or employees.
(d) The Originator shall comply in all material respects with
the Credit and Collection Policy in connection with the Right to Use
Receivables.
(e) Promptly after learning thereof, the Originator will
notify the Buyer and the Agent of (i) the details of any action,
proceeding, investigation or claim against or affecting it instituted
before any court, arbitrator or Governmental Authority or, to its
knowledge threatened to be instituted, which, if determined adversely
would be likely to have a material adverse effect on (A) the
performance by it of any obligations under any Facility Document to
which it is a party or by which it is bound, (B) the validity or
enforceability of any Facility Document to which it is a party or by
which it is bound, (C) the validity or enforceability of any Right to
Use Receivable or (D) the first priority interest of the Agent on
behalf of the Purchasers in the Assigned Collateral relating to the
Right to Use Receivables; (ii) any material dispute between the
Originator and any Governmental Authority; (iii) any labor controversy
which has resulted in or threatens to result in a strike which would
materially affect the business operations of the Originator; and (iv)
the occurrence of any Termination Event relating to the Originator.
(g) From time to time the Originator will (i) pay or reimburse
the Buyer, the Agent and each Purchaser for all Taxes imposed on this
Agreement and for all expenses including legal fees incurred in
connection with the enforcement by judicial proceedings or otherwise of
any of the rights of the foregoing parties under this Agreement or
under any other Facility Document to which the Originator is a party or
by which it is bound; (ii) pay or reimburse the Agent for all expenses,
including legal fees, incurred by or on behalf of the Buyer in
connection with the perfection of the Buyer's interest in the Assigned
Collateral relating to the Right to Use Receivables; (iii) obtain and
promptly furnish to the Agent evidence of all such government approvals
as may be required to enable the Originator to comply with its
obligations under any Facility Document to which it is a party
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or by which it is bound; (iv) execute and deliver all such instruments
(including UCC continuation statements) and perform all such other acts
as may be necessary to maintain the Purchasers' interest continuously
perfected as a first priority interest in the Assigned Collateral
relating to the Right to Use Receivables; (v) execute and deliver all
such other instruments and perform all such other acts as the Buyer,
the Agent or any Purchaser may reasonably request to carry out the
transactions contemplated by this Agreement and the other Facility
Documents to which it is a party or by which it is bound; and (f)
comply in all material respects with the obligations of the Originator
under the Facility Documents.
(h) The Originator agrees to deliver in kind upon receipt to
the Master Servicer all Collections received by the Originator in
respect of any Right to Use Receivable after the related Transfer Date
as soon as practicable after receipt thereof, but in any event no later
than two Business Days following such receipt.
On the last Business Day of each month but in any event no later than
five days subsequent to the last Business Day of each month, the Originator
shall provide to the Buyer such information as is reasonably necessary for the
Buyer to determine the Consolidated Delinquency Date Amount, the Consolidated
Defaulted Receivable Amount and the Consolidated Monthly Charge-off Date.
Section 2.05. Negative Covenants of the Originator. From the date
hereof until the first day following the Commitment Termination Date on which
(i) the Outstanding Principal Balance of the Right to Use Receivables comprising
part of the Receivables Pool shall be reduced to zero and (ii) all Obligations
shall have been fully paid and performed, the Originator shall refrain from
doing any of the following, unless the Buyer or the Agent (acting upon the
direction of the Required Purchasers) shall otherwise consent in writing:
(a) Except for the conveyances hereunder, the Originator will
not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Right to Use
Receivable or any related Related Security or Receivable Document,
whether now existing or hereafter created, or any interest therein; the
Originator will immediately notify the Buyer and the Agent of the
existence of any Lien on any Right to Use Receivable or any related
Related Security or Receivable Document and such Right to Use
Receivable will be repurchased from the Buyer by the Originator in the
manner and with the effect specified in Section 2.03(b), and the
Originator shall defend the right, title and interest of the Buyer in,
to and under the Right to
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Use Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Originator;
provided, however, that nothing in this subsection shall prevent or be
deemed to prohibit the Originator from suffering to exist upon any of
the Right to Use Receivables or any related Related Security or
Receivable Document, Liens in favor of WorldMark, Liens for municipal
or other local taxes if such taxes shall not at the time be due and
payable or if the Originator shall currently be contesting the validity
of such taxes in good faith by appropriate proceedings and shall have
set aside on its books adequate reserves with respect thereto.
(b) After the Transfer Date relating to a Right to Use
Receivable, the Originator shall take no action, nor omit to take any
action, which would impair the rights of the Buyer in such Right to Use
Receivable.
(c) The Originator shall not, during the term of this
Agreement, transfer to the Buyer Right to Use Receivables on forms
substantially different from the forms attached as Exhibits to the
Transfer Agreement.
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price. In consideration of the sale
from the Originator to the Buyer, as provided in Section 2.01, of (a) the
Initial Receivables that are Right to Use Receivables on the Closing Date, the
Buyer agrees to pay the Originator an amount equal to the Outstanding Principal
Balance of such Right to Use Receivables as of the Initial Cutoff Date, plus
accrued interest to the date of purchase and (b) the Subsequent Receivables that
are Right to Use Receivables, on the related Transfer Dates, the Buyer agrees to
pay the Originator an amount equal to the Outstanding Principal Balance of such
Right to Use Receivables as of the related Subsequent Cutoff Date.
ARTICLE FOUR
TERMINATION
Section 4.01. Termination. The respective obligations and
responsibilities of the Originator and the Buyer created hereby shall terminate,
except for indemnity obligations as provided herein, upon the termination of the
Transfer Agreement.
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ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment.
(a) This Agreement may be amended from time to time in writing by the
Buyer and the Originator, with the consent of the Agent, which consent shall not
be unreasonably withheld, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein, or
to add any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement or the Transfer Agreement; provided, however, that such action shall
not, as evidenced by an opinion of counsel delivered to the Buyer and the Agent,
adversely affect in any material respect the interests of the Buyer or the
Purchasers in any Right to Use Receivables or Assigned Collateral related
thereto.
(b) This Agreement may also be amended from time to time in writing by
the Buyer and the Originator, with the consent of the Agent (acting upon the
direction of the Required Purchasers) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement.
Section 5.02. Protection of Right, Title and Interest to
Right to Use Receivables.
(a) The Originator at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Buyer's right, title and interest
to the Right to Use Receivables and other property conveyed by the Originator to
the Buyer hereunder to be promptly recorded, registered and filed, and to be at
all times kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Buyer hereunder to all of the Right to Use Receivables and
such other property. The Originator shall deliver to the Buyer file-stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. The Buyer and the Agent shall cooperate fully with the Originator in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this Section .
(b) Within 30 days after the Originator makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance
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with paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC as in effect in the applicable state, it shall give the
Buyer and the Agent notice of any such change and shall execute and file such
financing statements or amendments as may be necessary to continue the
perfection of the Buyer's security interest in the Right to Use Receivables and
the Assigned Collateral relating thereto.
(c) The Originator will give the Buyer and the Agent prompt written
notice of (i) any relocation of any office at which it keeps records concerning
the Right to Use Receivables or of its principal executive office and (ii)
whether, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall execute and
file such financing statements or amendments as may be necessary to continue the
perfection of the interest of the Buyer in the Right to Use Receivables and the
Assigned Collateral relating thereto.
Section 5.03. 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 Oregon, except to the extent that the perfection (and the
effect of perfection or nonperfection) of the interests of the lenders in the
receivables, loan documents, related security, assigned collateral, facility
documents and collections is governed by the laws of a jurisdiction other than
the state of Oregon.
Section 5.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of the Buyer, to TW HOLDINGS, INC., X.X. Xxx 0000, 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx 00000, Attention: X.X. Xxxxx and Xxxx
X. Xxxxxxxx; (b) in the case of TRI, to TRI, the Originator, TRENDWEST RESORTS,
INC., 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx #000, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Sites and Xxxx X. Xxxxxxxx; or (c) as to either of such
Persons, at such other address as shall be designated by such Person in a
written notice to the other Person.
Section 5.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
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Section 5.06. Assignment. This Agreement may not be assigned by the
Buyer or the Originator except as contemplated by this Section or the Transfer
Agreement; provided, however, that simultaneously with the execution and
delivery of this Agreement, the Buyer shall assign all of its right, title and
interest herein to the Agent for the benefit of the Purchasers as provided in
the Transfer Agreement, to which the Originator hereby expressly consents.
Section 5.07. Further Assurances. The Originator and the Buyer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements, amendments, continuation
statements or releases relating to the Right to Use Receivables for filing under
the provisions of the UCC or other law of any applicable jurisdiction.
Section 5.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Buyer or the Originator, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 5.09. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument.
Section 5.10. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, for the benefit of the
Agent and the Purchasers, which shall be considered to be a third-party
beneficiary hereof. Except as otherwise provided in this Agreement, no other
person will have any right or obligation hereunder.
Section 5.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 5.12. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
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Section 5.13. Originator Indemnification. The Originator shall
indemnify and hold harmless the Buyer from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of activities of the Originator
pursuant to this Agreement or as a result of the transactions contemplated
hereby, including, but not limited to, any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Originator shall not indemnify the Buyer if such
acts, omissions or alleged acts or omissions constitute negligence or willful
misconduct by the Agent or any Purchaser.
Section 5.14. Assumption of the Obligations of the Originator. The
obligations of the Originator hereunder shall not be assignable nor shall any
Person succeed to the obligations of the Originator hereunder except in each
case in accordance with the provisions of Section 5.06.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TRENDWEST RESORTS, INC.,
as Originator
By:
---------------------------------
Xxxxxxx X. Sites
Secretary
TW HOLDINGS, INC.,
as Buyer
By:
---------------------------------
X.X. Xxxxx
President
ACCEPTED:
SEATTLE-FIRST NATIONAL
BANK, as Agent
By:
------------------------------
Xxx Xxxx
Assistant Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TRENDWEST RESORTS, INC.,
as Originator
By:
------------------------------
Xxxxxxx X. Sites
Secretary
TW HOLDINGS, INC.,
as Buyer
By:
------------------------------
X.X. Xxxxx
President
ACCEPTED:
SEATTLE-FIRST NATIONAL
BANK, as Agent
By:
--------------------------------
Xxx Xxxx
Assistant Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TRENDWEST RESORTS, INC.,
as Originator
By:
-----------------------------------
Xxxxxxx X. Sites
Secretary
TW HOLDINGS, INC.,
as Buyer
By:
-----------------------------------
X.X. Xxxxx
President
ACCEPTED:
SEATTLE-FIRST NATIONAL
BANK, as Agent
By:
------------------------------
Xxx Xxxx
Assistant Vice President
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