1
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is made
this 13th day of October, 1998, by and between Trendwest Resorts, Inc.
(hereinafter referred to as "Buyer") and R & R Vista, an Oregon partnership with
X. X. Xxxxx and X. X. Xxxxx the two partners (hereinafter referred to as
"Seller"), each of whom agrees:
1. DEFINED TERMS. As used in this Purchase Agreement, the following terms shall
have the respective meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
a. "Acquired Purchase Contracts" means the purchase contracts receivable
of Seller which are described and listed in Exhibit A hereto, free and clear of
all liens and encumbrances.
b. "Assignment and Assumption Agreement" means the agreement to be
executed by the Seller and Buyer at the Closing in the form of attached Exhibit
B covering transfer of the Seller's interest in the Acquired Purchase contracts.
c. "Xxxx of Sale" means the instrument to be executed by the Seller and
delivered to the Buyer at the Closing in the form of attached Exhibit C.
d. "Buyer" means Trendwest Resorts, Inc., located at 00000 XX 00xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
e. "Closing" has the meaning specified in Section 3 hereof.
f. "Closing Date" has the meaning specified in Section 3 hereof.
g. "Effective Time" has the meaning specified in Section 3 hereof.
h. "Person" shall mean an individual, partnership, joint venture,
corporation, bank, trust, unincorporated organization and/or a government or any
department or agency thereof.
i. "Purchase Price" has the meaning specified in Section 4.1 hereof.
j. "Seller" means R & R Vista, an Oregon partnership with X. X. Xxxxx
and X. X. Xxxxx the two partners, located at 0000 Xxxxxxxxx Xx., Xxxxxxx Xxxxx,
Xxxxxx 00000.
Page 1
2
2. AGREEMENT TO SELL AND PURCHASE THE ACQUIRED PURCHASE CONTRACTS. Subject to
the terms and conditions and in reliance upon the representations and warranties
contained in this Agreement, Seller shall sell to Buyer and Buyer shall acquire
from Seller the Acquired Purchase Contracts.
3. CLOSING; EFFECTIVE TIME. The sale and purchase of the Acquired Purchase
Contracts as contemplated by this Agreement (the "Closing") shall take place at
Seller's offices, located in Xxxxxxx Xxxxx, Xxxxxx at 10:00 a.m. (local time) on
October 13, 1998 (or such other place, date and time as shall be agreed upon by
Buyer and Seller). The date of the Closing is referred to in this Agreement as
the "Closing Date". When completed, the Closing shall be effective as of 12:01
a.m. (local time) on October 13, 1998 (the "Effective Time").
4. PURCHASE PRICE.
4.1 Price. As the purchase price for the Acquired Purchase Contracts,
Buyer shall pay to Seller the total sum of Three Million Seven Hundred Sixty
Seven Thousand One Hundred Fifty Six and 32/100ths Dollars ($3,767,156.32)
(hereinafter referred to as "Purchase Price"), payable, at Closing, in
immediately available funds of the United States by wire transfer. The Purchase
Price includes both outstanding principal and accrued interest on the Acquired
Purchase Contracts.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and
represents to Buyer as follows:
5.1 Standing and Authority of Seller. Seller is a partnership duly
organized and validly existing in good standing under the laws of the State of
Oregon and possesses all requisite power and authority to enter into and perform
this Agreement. This Agreement is a valid and binding obligation of Seller, duly
enforceable in accordance with its terms.
5.2 Title and Condition of Acquired Assets. Seller has good, marketable
and indefeasible title to all of the Acquired Purchase Contracts at the Closing
and as of the Effective Time, free and clear of all mortgages, liens, charges,
claims, leases, restrictions and encumbrances whatsoever. There is no agreement
of any kind whereby any Person or Persons have any right to acquire or obtain
(by purchase, gift, merger, consolidation or otherwise) an interest in any of
the Acquired Purchase Contracts.
5.3 Compliance with Instruments. Seller is not in
Page 2
3
default under, or in breach of any material term or provision of contract,
lease, agreement or other instrument to which the Acquired Purchase Contracts
are bound. The execution, delivery and performance of this Agreement by Seller
does not and will not conflict with or result in a breach of or a default under,
or give rise to any right of termination, cancellation or acceleration with
respect to, any of the terms, conditions or provisions of any (as so defined)
indenture, contract, agreement, license, lease or other instrument to which the
Acquired Purchase Contracts are bound.
5.4 Authorization by Seller. The execution, delivery and performance of
this Agreement by Seller have been duly and validly authorized by all necessary
action on the part of Seller and this Agreement is a valid, binding and
enforceable obligation of Seller except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting or limiting the rights of creditors generally.
5.5 Brokers. No person acting on behalf of the Seller or under the
authority of Seller is or will be entitled to any broker's, finder's or similar
fee, directly or indirectly from the Buyer in connection with the asset purchase
contemplated in this Agreement.
5.6 Disclosure. To Seller's knowledge there are no other matters or
liabilities, contingent or otherwise, which materially adversely affects or has
a substantial likelihood in the future of materially adversely affecting the
Acquired Purchase Contracts.
6. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The obligation of the Seller to
transfer, assign, and deliver the Acquired Purchase Contracts to Buyer pursuant
to this Agreement is subject to the satisfaction (unless waived in writing by
Seller) of each of the following conditions at and as of the Closing.
6.1 Performance of Obligations by Buyer. Buyer shall have performed and
complied with all agreements and conditions required to be performed or complied
with by Buyer under this Agreement prior to or at the Closing.
6.2 Purchase Price. Seller shall have received, the Purchase Price as
described in Section 4.1 herein.
6.3 Consents and Notices. Buyer shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Buyer of this Agreement or consummation by Buyer
Page 3
4
of the transactions contemplated thereby, and any notice or waiting period
relating thereto shall have expired with all requirements lawfully imposed
having been satisfied in all material respects.
7. CONDITIONS TO BUYER'S OBLIGATION TO CLOSE. The obligation of Buyer to
purchase the Acquired Purchase Contracts from Seller pursuant hereto is subject
to the satisfaction (unless waived in writing by Buyer) of each of the following
conditions at and as of the Closing:
7.1 Representations and Warranties Correct. The representations and
warranties of Seller contained in Section 5 hereof shall be true and correct in
all material respects on and as of the date of this Agreement and at and as of
the Closing as though made at and as of the Closing, except as affected by the
transactions contemplated by this Agreement.
7.2 Performance of Obligations by Seller. Seller shall have performed
and complied with all agreements and conditions required to be performed or
complied with by Seller under this Agreement prior to or at the Closing
including without limitation the delivery to Buyer of: (a) a duly executed Xxxx
of Sale transferring to Buyer all of the Acquired Purchase Contracts free of all
liens and encumbrances; and, (b) a duly executed Assignment and Assumption
Agreement transferring the Acquired Purchase Contracts.
7.3 Consents and Notices. Seller shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Seller of this Agreement or consummation by Seller
of the transactions contemplated hereby, and any notice or waiting period
relating thereto shall have expired with all requirements lawfully imposed
having been satisfied in all material respects.
8. FURTHER COOPERATION. After the Closing, each party, at the request of the
other and without additional consideration, shall execute and deliver or cause
to be executed and delivered from time to time such further instruments and
shall take such further action as the requesting party may reasonably require in
order to carry out more effectively the intent and purpose of this Agreement.
9. AMENDMENTS AND WAIVERS. Any term or provision of this Agreement may be waived
without affecting any of the rights, conditions, or limitations relating to the
other terms and
Page 4
5
conditions of this Agreement at any time by an instrument in writing signed by
the party which is entitled to the benefits thereof and this Agreement may be
amended or supplemented at any time by an instrument in writing signed by all
parties hereto.
10. EXPENSES. Each party will be responsible for its own attorneys', accounting
and other professional fees incurred in connection with the purchase
contemplated in this Agreement.
11. PRORATIONS. The parties will prorate as of the Effective Time, all interest
and principle receivable and periodic charges which relate to the Acquired
Purchase Contracts.
12. ASSIGNMENT AND BINDING EFFECT. The Agreement shall be binding upon and inure
to the benefit of and be enforceable by each of the parties hereto and their
respective successors and assigns. Neither this Agreement nor any obligation
hereunder shall be assigned or assignable by Buyer or Seller without the prior
written consent of the other parties hereto.
13. NOTICES. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be validly given, made or served if in writing or delivered personally or sent
by certified or registered mail, postage prepaid, addressed as follows:
To Seller: R & R Vista
0000 Xxxxxxxxx Xx.
Xxxxxxx Xxxxx, Xxxxxx 00000
Attn: X. X. Xxxxx
To Buyer: Trendwest Resorts, Inc.
00000 XX 00xx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as any party hereto may, from time to time, designate
in writing delivered in a like manner. Notice given by mail shall be deemed to
be given on the date which is two business days following the date the same is
postmarked.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto with respect to the transactions contemplated hereby and
supersedes and is in full substitution for any and all prior agreements and
understandings between any of said parties relating to such
Page 5
6
transactions.
15. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections of
this Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON.
17. 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 instrument.
18. ATTORNEY'S FEES. In the event legal action is taken to enforce this
Agreement or any provision thereof, or as a result of any breach of warranty or
representation or other default of either party, the prevailing party in such
action shall be entitled to receive its reasonable attorney's fees, in addition
to all other costs or charges allowed, which shall be fixed by the court or
courts in which the suit or action, including any appeal thereon, is tried,
heard or decided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BUYER: SELLER:
Trendwest Resorts, Inc. R & R Vista
By: ____________________ By: ____________________
Its:____________________ X. X. Xxxxx
By: ____________________
X. X. Xxxxx
Page 6
