EXECUTION COPY
TRI FUNDING III, INC.
RECEIVABLES-BACKED NOTES, SERIES 1999-1
$26,000,000 6.695% CLASS A-1 NOTES
$22,500,000 7.230% CLASS A-2 NOTES
$55,904,000 7.560% CLASS A-3 NOTES
$18,249,000 7.460% CLASS B NOTES
$19,947,000 7.685% CLASS C NOTES
$17,400,000 8.590% CLASS D NOTES
PURCHASE AGREEMENT
August 18, 1999
Prudential Securities Incorporated
as the Initial Purchaser
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Notes. TRI Funding III, Inc. (the "Issuer"), a
wholly owned special purpose subsidiary of Trendwest Resorts, Inc. ("TWRI"),
proposes to issue Receivables-Backed Notes, Series 1999-1, Class A-1, Class A-2,
Class A-3, Class B, Class C and Class D (collectively, the "Notes"). The Notes
will be issued pursuant to an indenture, dated as of August 1, 1999 (the
"Indenture"), by and among the Issuer, TWRI, as servicer and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Notes will be
principally secured by, among other things, specific payments ("Receivables")
required to be made under certain consumer retail installment sale contracts
("Contracts") sold to the Issuer by TWRI, TW Holdings, Inc. ("TWHI"), TW
Holdings II, Inc. ("TWHII"), TRI Funding Company I, L.L.C., ("TRIFI") and TRI
Funding II, Inc. ("TRIFII" and together with TWRI, XXXX, XXXXX and XXXXX, the
"Sellers") pursuant to a receivables purchase agreement, dated as of August 1,
1999 (the "Receivables Purchase Agreement"), by and among the Sellers and the
Issuer (collectively, the "Trendwest Entities"). The Notes are to be in such
form and bear interest and be payable on such terms as prescribed in the
Indenture. Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Indenture.
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Section 2. Purchase of Notes. Subject to the terms and
conditions and in reliance upon the representations and warranties and
agreements set forth herein, (A) the Issuer agrees to sell all of the Notes to
Prudential Securities Incorporated (the "Initial Purchaser") as hereinafter
provided, and (B) the Initial Purchaser agrees to purchase the Notes, on the
Closing Date (as defined in Section 3 below) such Notes at the purchase prices
listed on Exhibit A attached hereto. At the time of the delivery of the Notes to
the Initial Purchaser, the Initial Purchaser shall make such payment to the
Issuer of such purchase price (i) by wire transfer in immediately available
funds to such account as the Issuer shall designate at least one Business Day
prior to the Closing Date, or (ii) in such other manner as agreed upon by the
Issuer and the Initial Purchaser.
Section 3. Delivery. The closing of the transactions
contemplated herein will be held at 10:00 am, New York time, at the offices of
Xxxxxxx and Xxxxxx, Chicago, Illinois, on or about August 25, 1999 (the "Closing
Date"). Delivery of the Notes shall be made in the form of one or more global
certificates delivered to The Depository Trust Company on the Closing Date and
shall be registered in the name of Cede & Co. The Notes will be available for
examination at least one Business Day prior to the Closing Date.
Section 4. Representations and Warranties of the Trendwest
Entities. Each of the Issuer, and, as indicated in sub-sections (ii), (iii),
(v), (vi), (x) and (xii) below, Trendwest represent and warrant, to the Initial
Purchaser, as of the Closing Date, that:
(i) The Offering Memorandum dated August 23, 1999 (the
"Memorandum") does not and will not, and any amendments thereof or
supplement thereof and any additional information and documents
concerning the Notes delivered by or on behalf of the Issuer to
prospective purchasers of the Notes (collectively, such information and
documents, the "Additional Offering Documents"), each as of their
respective dates, and any oral statements made by the Issuer to any
prospective purchaser of the Notes did not or will not, each as of its
issue date or date on which such statement was made and as of the
Closing Date, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
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light of the circumstances under which they were made, not misleading.
(ii) Each Trendwest Entity is a corporation or a
limited liability company duly organized, validly existing and in good
standing under the laws of its state of incorporation or formation, has
all power and authority necessary to own or hold its properties and
conduct its business in which it is engaged as described and as
contemplated in the Memorandum and has all licenses necessary to carry
on its business as it is now being conducted and is licensed and
qualified in each jurisdiction in which the conduct of its business
requires such licensing or qualification (except where the lack of
licensing or qualification would not and does not materially and
adversely affect the business, operations, property or financial
obligations of such Trendwest Entity, the ability of such Trendwest
Entity to perform its obligations under this Agreement and the other
Agreements, or the validity or enforceability of this Agreement or any
of the other Agreements (a "Material Adverse Effect")).
(iii) The Indenture, the Receivables Purchase Agreement,
the servicing agreement, dated as of August 1, 1999 (the "Servicing
Agreement"), by and among TWRI, as servicer, the Issuer and the
Trustee, and this Agreement (collectively, the "Agreements") have each
been duly authorized, executed and delivered by each Trendwest Entity,
to the extent each is a party thereto, and, assuming due authorization,
execution and delivery thereof by the other parties thereto, constitute
valid and legally binding obligations of such Trendwest Entity
enforceable against such Trendwest Entity in accordance with their
respective terms to the extent each is a party thereto, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally or
the application of equitable principles in any proceeding, whether at
law or in equity.
(iv) When executed, authenticated and delivered by the
Issuer and the Trustee in accordance with the Indenture and paid for by
the purchasers thereof, the Notes will have been duly executed,
authenticated, issued and delivered and will be entitled to the
benefits of the Indenture.
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(v) There are no legal or governmental proceedings
pending to which any Trendwest Entity is a party, or of which any
property or assets of any Trendwest Entity is the subject, which, if
determined adversely to such Trendwest Entity, as the case may be would
individually or in the aggregate have a material adverse effect on the
financial position, stockholders' or members' equity or results of
operations of such Trendwest Entity as the case may be or on the
performance by such Trendwest Entity of its obligations hereunder or as
contemplated under each Agreement to which it is a party; and, to the
best knowledge of the Issuer or Trendwest, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(vi) The execution and delivery of the Notes by the
Issuer, the execution, delivery and performance of the Agreements by
each Trendwest Entity to the extent each is a party thereto and the
consummation by each Trendwest Entity of the transactions contemplated
herein and in all documents relating to the Notes will not result in
any breach or violation of, or constitute a default under, any
agreement or instrument to which such Trendwest Entity is a party or to
which any of its properties or assets are subject, except for such of
the foregoing as to which relevant waivers or amendments have been
obtained and are in full force and effect, nor will any such action
result in a violation of the Certificate of Incorporation, By-Laws,
Certificate of Formation or Limited Liability Company Agreement, as
applicable, of such Trendwest Entity, or any law or any order, decree,
rule or regulation of any court or governmental agency having
jurisdiction over such Trendwest Entity or its properties, a breach or
violation of which, or default under which, would have a Material
Adverse Effect on such Trendwest Entity.
(vii) The Issuer is not, and the activities of the
Issuer pursuant to the Indenture will not cause the Issuer to be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended.
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(viii) Assuming the Initial Purchaser's representations
herein are true and accurate, it is not necessary in connection with
the offer, sale and delivery of the Notes in the manner contemplated by
this Agreement and the Memorandum to register the Notes under the
Securities Act.
(ix) The Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(x) At the time of execution and delivery of the
Receivables Purchase Agreement, each Seller owned the related Contracts
and Receivables free and clear of all liens, encumbrances, adverse
claims or security interests ("Liens") and each Seller had the power
and authority to transfer such Contracts and Receivables to the Issuer
and upon execution and delivery of the Receivables Purchase Agreement,
the Issuer will have acquired each Seller's right, title and interest
in and to such Contracts and Receivables free and clear of all Liens.
(xi) Upon the execution and delivery of the Receivables
Purchase Agreement, the Issuer will have the power and authority to
pledge the Contracts and Receivables to the Trustee on behalf of the
Noteholders.
(xii) Each of the representations and warranties of each
Trendwest Entity set forth in each of the Agreements to which it is a
party is true and correct in all material respects.
(xiii) Any taxes, fees and other governmental charges in
connection with the execution and delivery of the Agreements or the
execution, delivery and sale of the Notes have been or will be paid
prior to the Closing Date.
Section 5. Sale of Notes to the Initial Purchaser.
(a) The sale of the Notes to the Initial Purchaser will be made without
registration of the Notes under the Securities Act, in reliance upon
the exemption therefrom provided by Section 4(2) of the Securities Act.
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(b) The Initial Purchaser hereby represents, as of
the Closing Date, and warrants to, and agrees with the Issuer that:
(i) The Initial Purchaser is a QIB within
the meaning of Rule 144A under the Securities Act.
(ii) The Initial Purchaser (i) will
initially make offers and sales ("Exempt Resales") of the
Notes purchased hereunder, solely to Persons whom it
reasonably believes to be "qualified institutional buyers" as
defined in Rule 144A under the Securities Act ("QIBs" or
"Exempt Purchasers") and (ii) is aware that the sales to QIBs
are being made in reliance on Rule 144A.
(iii) The Initial Purchaser is not acquiring
the Notes with a view to any distribution thereof that would
violate the Securities Act or the securities laws of any state
of the United States or any other applicable jurisdiction.
(iv) No form of general solicitation or
general advertising (as those terms are used in Regulation D
under the Securities Act) has been or will be used by the
Initial Purchaser or any of its representatives in connection
with the offer and sale of any of the Notes within the United
States (as those terms are used in Regulation D under the
Securities Act).
(v) The Initial Purchaser agrees that, in
connection with the Exempt Resales, it will solicit offers to
buy the Notes only from, and will offer to sell the Notes only
to, Persons it reasonably believes to be Exempt Purchasers.
The Initial Purchaser further agrees that it will sell the
Notes only to Persons who have delivered an investment letter
substantially in the form of Exhibit A to the Indenture.
(vi) The Initial Purchaser also understands
that the Issuer, counsel to the Issuer and counsel to the
Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such
reliance.
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(vii) One of the following statements is
true and correct: (i) the Initial Purchaser is not an
"employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of
the Code (a "Plan") and it is not directly or indirectly
acquiring the Notes on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan,
or (ii) the proposed acquisition or transfer will qualify for
a statutory or administrative prohibited transaction exemption
under ERISA or Section 4975(c)(1) of the Code for which a
statutory or administrative exception is available.
(viii) The Initial Purchaser agrees to treat
the Notes for purposes of federal, state and local income or
franchise taxes (and any other tax imposed on or measured by
income) as indebtedness for such tax purposes.
(ix) No placement agent, broker, finder or
investment banker has been employed by or has acted for the
Issuer or the Initial Purchaser in connection with the
transactions contemplated by this Agreement.
Section 6. Certain Covenants of each Trendwest Entity. Each Trendwest
Entity covenants and agrees with the Initial Purchaser as follows:
(a) If, at any time prior to the 90th day following
the Closing Date, any event involving a Trendwest Entity shall occur as
a result of which the Memorandum (as then amended or supplemented)
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, such
Trendwest Entity will, at the sole cost of such Trendwest Entity,
promptly notify the Initial Purchaser and prepare and furnish to the
Initial Purchaser an amendment or supplement to the Memorandum that
will correct such statement or omission.
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(b) During the period referred to in Section 6(a),
the Issuer will furnish to the Initial Purchaser, without charge,
copies of the Memorandum (including all exhibits and documents
incorporated by reference therein), the Agreements, and all amendments
or supplements to such documents, in each case as soon as reasonably
available and in such quantities as the Initial Purchaser may
reasonably request.
(c) While any Notes remain outstanding, unless such
Class has been registered, the Issuer will make available, upon
request, to the Initial Purchaser, any holder and any prospective
purchaser of such Notes, the information concerning the Issuer and the
Trust specified in Rule 144A(d)(4) under the Securities Act.
Section 7. Conditions of the Initial Purchaser's Obligations.
The obligations of the Initial Purchaser to purchase the Notes on the Closing
Date will be subject to the accuracy of the representations and warranties of
the Trendwest Entities herein, to the performance by each Trendwest Entity of
its obligations hereunder and to the following additional conditions precedent:
(a) The Notes shall have been duly authorized,
executed, authenticated, delivered and issued, and each of the
Agreements shall have been duly authorized, executed and delivered by
the respective parties thereto and shall be in full force and effect,
and all conditions precedent contained in the Agreements shall have
been satisfied.
(b) The Initial Purchaser shall receive a
certificate, dated the Closing Date, of the President and Chief
Financial Officer or a Senior Vice President of the Issuer, and a
certificate, also dated the Closing Date, from a comparable officer of
TWRI, in each case to the effect that such officer has carefully
examined each of the Agreements and the Memorandum and that, to the
best of such officer's knowledge (i) since the date information is
given in the Memorandum, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings, results
of operations, business affairs or business prospects of such Trendwest
Entity, as the case may be whether or not arising in the ordinary
course of
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business, or the ability of such Trendwest Entity to
perform its obligations hereunder or under the other Agreements to
which each is a party, (ii) the representations and warranties of such
Trendwest Entity set forth herein and in the other Agreements to which
each is a party are true and correct in all material respects as of the
Closing Date, as though such representations and warranties had been
made on and as of such date, (iii) each Trendwest Entity has complied
with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder and under
the other Agreements to which each is a party, on or prior to the
Closing Date, and (iv) nothing has come to the attention of such
officer that would lead such officer to believe that the Memorandum,
and any amendment thereof or supplement thereto, as of its date and as
of the Closing Date, or any Additional Offering Document contains, as
of its date and as of the Closing Date, an untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The Initial Purchaser shall receive
from each Trendwest Entity, such certificates as may be required to be
delivered pursuant to the Agreements.
(c) The (i) Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes shall each have been rated no less than "AAA" by
each of Fitch IBCA, Inc. ("Fitch") and Duff & Xxxxxx Credit Rating Co.
("DCR"), (ii) the Class B Notes shall have been rated no less than "AA"
by each of Fitch and DCR, (iii) the Class C Notes shall have been rated
no less than "A" by each of Fitch and DCR, (iv) the Class D Notes shall
have been rated no less than "BBB" by Fitch, and (v) none of such
ratings shall have been rescinded, and no public announcement shall
have been made by the respective rating agencies that the rating of the
any Class of Notes has been placed under review.
(d) The Initial Purchaser shall have received an
opinion, dated the Closing Date, of Xxxxxxx X. Xxxx, in-house counsel
to each Trendwest Entity, with respect to such matters as the Initial
Purchaser may reasonably require.
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(e) On the date of the Memorandum, Deloitte & Touche
LLP shall have furnished to the Initial Purchaser an "agreed upon
procedures" letter, dated the date of delivery thereof, in form and
substance reasonably satisfactory to the Initial Purchaser, with
respect to certain financial and statistical information contained in
the Memorandum.
(f) The Initial Purchaser shall have received an
opinion, dated the Closing Date, of Xxxxxxx X. Xxxxxx, in-house counsel
to the Trustee and Xxxxxx & Xxxxxxxx, outside counsel to the Trustee,
with respect to such matters as the Initial Purchaser may reasonably
require and in form and substance satisfactory to the Initial
Purchaser.
(g) The Initial Purchaser shall have received
opinions of Xxxxxxx and Xxxxxx, counsel to each Trendwest Entity, with
respect to certain matters, including non-consolidation, true-sale,
security interest, corporate authority, enforceability, securities law
and tax matters, and in form and substance reasonably satisfactory to
the Initial Purchaser.
(h) The Initial Purchaser shall have received an
opinion of in-house counsel of Interval International, Inc., the parent
of Sage Systems, Inc., with respect to such matters as the Initial
Purchaser may require.
(i) The Initial Purchaser shall have received from
the Trustee a certificate signed by one or more duly authorized
officers of the Trustee, dated the Closing Date, in customary form.
(j) Each Trendwest Entity shall have furnished to
the Initial Purchaser and its counsel such further information,
certificates and documents as the Initial Purchaser and its counsel may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in
form and substance to the Initial Purchaser and its counsel.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and
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certificates mentioned above shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchaser, this Agreement and
all of the Initial Purchaser's obligations hereunder may be canceled by the
Initial Purchaser at or prior to delivery of and payment for the Notes. Notice
of such cancellation shall be given to the Issuer in writing, or by telephone or
telegraph confirmed in writing.
Section 8. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchaser, by notice given
to the Issuer prior to delivery of and payment for the Notes, if prior to such
time (i) trading in securities generally in the New York Stock Exchange shall
have been suspended or materially limited or any setting of minimum prices for
trading on such exchange has occurred, (ii) there has been, since the respective
dates as of which information is given in the Memorandum, any material adverse
change in the condition, financial or otherwise, or in the properties or the
earnings, business affairs or business prospects of the Trendwest Entities,
considered as one enterprise, whether or not arising in the ordinary course of
business; (iii) a general moratorium on commercial banking activities in New
York shall have been declared by either federal or New York State authorities,
or (iv) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crises the effect of which on the financial
markets of the United States is such as to make it, in the reasonable judgment
of the Initial Purchaser, impracticable or inadvisable to market the Notes on
the terms and in the manner contemplated by the Memorandum as amended or
supplemented.
Section 9. Indemnification and Contribution. (a) Each of
Trendwest and the Issuer, jointly and severally, agrees to indemnify and hold
harmless the Initial Purchaser and each person, if any, who controls the Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which the Initial Purchaser or such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: (1) any untrue statement or alleged untrue statement made
by a Trendwest Entity in Section 4 of this Agreement, (2) any untrue statement
or alleged untrue statement
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of any material fact contained in (A) the Memorandum or any amendment or
supplement thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by a Trendwest Entity or based upon written
information furnished by or on behalf of a Trendwest Entity filed in any
jurisdiction in order to qualify the Securities under the securities or blue sky
laws thereof or filed with any securities association or securities exchange
(each an "Application"), (3) the omission or alleged omission to state in the
Memorandum or any amendment or supplement thereto, or any Application a material
fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or (4) any untrue
statement or alleged untrue statement of any material fact contained in any
audio or visual materials prepared by a Trendwest Entity and used in connection
with the marketing of the Notes, including without limitation, slides, videos,
films or tape recordings, and will reimburse, as incurred, the Initial Purchaser
and each such controlling person for any legal or other expenses reasonably
incurred by the Initial Purchaser or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that no Trendwest Entity will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in Memorandum or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information furnished to the Issuer
by the Initial Purchaser or through the Initial Purchaser specifically for use
therein. This agreement to indemnify will be in addition to any liability which
a Trendwest Entity may otherwise have. No Trendwest Entity will, without the
prior written consent of the Initial Purchaser, settle or compromise or consent
to the entry of any judgment any pending or threatened claim, action, suit or in
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Initial Purchaser or any person who controls the Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release the Initial
Purchaser and each such controlling persons from all liability arising out of
such claim, action, suit or proceeding.
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(b) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 9 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchaser in the case of
paragraph (a) of this Section 9, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the
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indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(c) In circumstances in which the agreement to indemnify
provided for in the preceding paragraphs of this Section 9 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying parties collectively on the one hand and
the indemnified party on the other from the offering of the Notes, or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying parties collectively on the one hand and the indemnified party
on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trendwest
Entities, collectively, on the one hand and the Initial Purchaser on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (before deducting expenses) received by the Issuer bear to the total
purchase discounts and commissions received by the Initial Purchaser in
connection with the purchase of the Securities. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Trendwest Entities on the one hand or the Initial Purchaser on the other, the
parties' relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Trendwest Entities and the
Initial Purchaser agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other
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method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), the Initial Purchaser shall not be
obligated to make contributions hereunder that in the aggregate exceed the
Purchase Price, less the aggregate amount of any damages that the Initial
Purchaser has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Initial Purchaser, and each director of a Trendwest
Entity and each person, if any, who controls such Trendwest Entity within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as such Trendwest Entity, as the case
may be.
Section 10. Severability Clause. Any part, provision,
representation, or warranty of this Agreement which is prohibited or is held to
be void 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.
Section 11. Notices. All communications hereunder will be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by overnight mail, certified mail or registered mail, postage prepaid,
and effective only upon receipt, and if sent to the Initial Purchaser, will be
delivered to Prudential Securities Incorporated, One New York Plaza, New York,
New York, 10292, Attention: General Counsel (with a copy to the Asset Finance
Group), or if sent to a Trendwest Entity will be delivered to such Trendwest
Entity, c/o Trendwest Resorts, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx
00000, Attention: General Counsel.
Section 12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of each Trendwest Entity and the officers of such Trendwest Entity,
and of the Initial Purchaser
15
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchaser, a Trendwest Entity or any of the controlling persons referred to in
Section 9, and will survive delivery of and payment for the Notes.
Section 13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and Note Owners as defined in
the Indenture and their respective successors and the officers, directors and
controlling persons referred to in Section 9 and their respective successors and
assigns, and, except as specifically set forth herein, no other person will have
any right or obligation hereunder.
Section 14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS CONFLICT OF LAW PROVISIONS.
Section 15. Counterparts, Etc. This Agreement supersedes all
prior or contemporaneous agreements and understandings relating to the subject
matter hereof between the Initial Purchaser and the Trendwest Entities. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such change, waiver, discharge or termination is sought. This Agreement may be
signed in any number of counterparts each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
Section 16. No Petition. During the term of this Agreement and
for one year and one day after the termination hereof, none of the parties
hereto or any affiliate thereof will file any involuntary petition or otherwise
institute any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law against TWHI, TWHII, TRIFI and TRIFII or the Issuer.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
16
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Trendwest Entities and the Initial Purchaser.
Very truly yours,
TRI FUNDING III, INC.
By: _________________________________
Name:
Title:
TRENDWEST RESORTS, INC.
By: _________________________________
Name:
Title:
TW HOLDINGS, INC.
By: _________________________________
Name:
Title:
TW HOLDINGS II, INC.
By: _________________________________
Name:
Title:
TRI FUNDING II, INC.
By: _________________________________
Name:
Title:
TRI FUNDING COMPANY I, L.L.C.
By: TRENDWEST FUNDING I, INC.
By: ___________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PRUDENTIAL SECURITIES INCORPORATED
By: _______________________________
Name: Xxxxxx Xxxxx
Title:
17
Exhibit A
Class Purchase Price (%)
A-1 99.375000%
A-2 99.375000%
A-3 99.375000%
B 97.922975%
C 98.778720%
D 99.375000%
