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EXHIBIT 10.30
STOCK PURCHASE AGREEMENT
BETWEEN
TRENDWEST RESORTS, INC.
AND
I & I HOLDINGS, LTD.
DATED
JUNE 26, 1997
(TW HOLDINGS, INC.)
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TABLE OF CONTENTS
Page
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1. Definitions................................................................................... 1
2. Purchase and Sale; Closing.................................................................... 3
2.1 Sale of the Company Shares........................................................... 3
2.2 Purchase Price....................................................................... 3
2.3 Closing.............................................................................. 3
2.4 Closing Deliveries................................................................... 3
3. Representations and Warranties of Seller...................................................... 4
3.1 Corporate Organization and Standing; Power and Authority............................. 4
3.2 Capitalization....................................................................... 4
3.3 Organization; Authorization; Enforceability.......................................... 4
3.4 Investment........................................................................... 5
3.5 Absence of Certain Conflicts......................................................... 5
3.6 Liabilities.......................................................................... 5
3.7 Absence of Material Changes.......................................................... 5
3.8 Absence of Certain Developments...................................................... 5
3.9 Proprietary Rights................................................................... 6
3.10 Taxes................................................................................ 6
3.11 Contracts and Commitments; No Default................................................ 6
3.12 Litigation; Judgments................................................................ 7
3.13 Compliance with Laws................................................................. 7
3.14 Brokers and Finders.................................................................. 7
4. Representations and Warranties of Purchaser................................................... 7
4.1 Corporate Organization and Standing; Power and Authority............................. 7
4.2 Enforceability....................................................................... 7
4.3 Consents............................................................................. 7
4.4 Absence of Certain Conflicts......................................................... 8
4.5 Litigation........................................................................... 8
4.6 Brokers and Finders.................................................................. 8
5. Conditions to Closing......................................................................... 8
5.1 Conditions to Obligations of Purchaser............................................... 8
5.2 Conditions to Obligations of Seller.................................................. 8
6. Survival of Representations and Warranties; Indemnification................................... 9
6.1 Survival of Representations and Warranties........................................... 9
6.2 Indemnification by Seller............................................................ 9
6.3 Indemnification by Purchaser......................................................... 9
6.4 Limitation on Claims................................................................. 9
6.5 Insured Losses....................................................................... 10
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7. Miscellaneous................................................................................. 10
7.1 Amendments and Waivers............................................................... 10
7.2 Successors and Assigns............................................................... 10
7.3 Termination.......................................................................... 10
7.4 Severability......................................................................... 10
7.5 Headings............................................................................. 11
7.6 Notices.............................................................................. 11
7.7 Governing Law; Jurisdiction.......................................................... 11
7.8 Parties in Interest.................................................................. 11
7.9 Expenses; Attorneys' Fees............................................................ 11
7.10 Entire Agreement..................................................................... 12
7.11 Counterparts......................................................................... 12
DISCLOSURE SCHEDULES
Schedule 3.11 Required Consents
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STOCK PURCHASE AGREEMENT
(TW HOLDINGS, INC.)
This Stock Purchase Agreement (the "Agreement"), dated June ____, 1997,
is between TRENDWEST RESORTS, INC., an Oregon corporation ("Purchaser") and I &
I HOLDINGS, LTD., an Oregon corporation.
Seller is the owner of all of the issued and outstanding shares (the
"Company Shares") of the common stock of TW Holdings, Inc., an Oregon
corporation (the "Company"), which constitutes all of the issued and outstanding
capital stock of the Company. Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, all of the Company Shares on the terms and
subject to the conditions set forth in this Agreement.
Therefore, the parties agree as follows:
1. DEFINITIONS.
(a) "Affiliate" means a Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control
with, the Person specified.
(b) "Assets" means all of the businesses, franchises, licenses, rights,
privileges, assets and property of the Company, of any nature and kind, whether
real, personal, mixed tangible or intangible, wherever situated, including the
goodwill of the business as a going concern.
(c) "Business" means the business carried out by the Company.
(d) "Claim" has the meaning given such term in Section 6.4.
(e) "Closing" has the meaning given such term in Section 2.3.
(f) "Closing Date" has the meaning given such term in Section 2.3.
(g) "Company Shares" has the meaning given such term in the second
opening paragraph of this Agreement.
(h) "Financial Statements" has the meaning given such term in Section
3.5.
(i) "Governmental Authority" means any nation or government, foreign or
domestic, any state or other political subdivision thereof, and any agency or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of government, including, without limitation, all
taxing authorities.
(j) "Liability" means each of, and "Liabilities" means any and all, the
debts, liabilities, claims, damages, obligations, payments, costs and expenses,
matured or unmatured, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated, known or unknown,
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including, without limitation, any of the foregoing arising under, out of or in
connection with any action by or order or consent decree of any governmental
entity or award of any arbitrator of any kind, or any law, rule, regulation,
contract, commitment or undertaking.
(k) "Lien" means any interest, consensual or otherwise, in real,
personal or mixed property (a) securing an obligation owed to, or a claim by, or
(b) evidencing an interest of, a Person other than the owner of the property,
including, without limitation, any mortgage, lien, pledge, security interest,
conditional sale agreement, or any assessment, charge or other type of notice
which is levied or given by any Governmental Authority and for which a lien
could be filed.
(l) "Loss" means any demand, penalty, assessment, interest, obligation,
Liability, claim, loss, cost, expense, tax, lawsuit, arbitration or other legal
action, judgment or damage, liquidated or unliquidated, accrued, contingent or
otherwise, incurred or suffered, any other damage or impairment in the value of
the business of the Person incurring or suffering such Loss or any of its
properties or assets, including, without limitation, any interest, penalties,
reasonable accounting and legal fees and expenses, and reasonable expert witness
and consultant fees and expenses in connection with the occurrence of any Loss
or in defending against any Loss.
(m) "Material Adverse Effect" has the meaning given such term in
Section 3.1.
(n) "Material Contract" means:
(i) any agreement, contract, or commitment which involves or
could involve aggregate future payments by the Company of more than $25,000;
(ii) any agreement restricting the Company from carrying on
the Business or any part thereof or from competing in any line of the Business
with any Person; and
(iii) any commitment, agreement, contract or other instrument
to which the Company is a party or by which it is bound, which (taken
individually) is material to the Business, Assets or financial conditions of the
Company, taken as a whole, and has a remaining term of more than one year.
(o) "Person" means an individual, corporation, partnership,
unincorporated association, trust, joint venture or other organization or
entity, including a Governmental Authority.
(p) "Purchase Price" has the meaning given such term in Section 2.2.
(q) "Purchaser Indemnitee" has the meaning given such term in Section
6.2.
(r) "Returns" means all reports, estimates, declarations, schedules,
disclosures, information statements and returns relating to, or required to be
filed in connection with, any Taxes, including information returns or reports
with respect to backup withholding and other payments to third parties.
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(s) "Seller Indemnitee" has the meaning given such term in Section 6.3.
(t) "Survival Period" has the meaning given such term in Section 6.1.
(u) "Tax" or "Taxes" means all federal, state and local income or
profits taxes, payroll and employee withholding taxes, unemployment insurance,
social security taxes, Washington business and occupation taxes, including any
interest, penalties or other additions to tax that may become payable in respect
thereof, imposed by any Governmental Authority.
2. PURCHASE AND SALE; CLOSING.
2.1 Sale of the Company Shares. On and subject to the terms and
conditions set forth in this Agreement, at Closing, Seller will sell, assign,
transfer and deliver the Company Shares to Purchaser, free and clear of all
Liens, and Purchaser will purchase the Company Shares from Seller. At the
Closing, title to the Company Shares will pass to the Purchaser, as record and
beneficial owner. Purchaser will then be entitled to all rights, including,
without limitation, voting rights, as the sole owner of such Company Shares,
free and clear of all Liens.
2.2 Purchase Price. The aggregate consideration to be paid by Purchaser
for the Company Shares (the "Purchase Price") is 8,250 shares (the "Purchaser
Shares") of common stock of Purchaser.
2.3 Closing. The closing of the transaction contemplated by this
Agreement (the "Closing") will take place at the offices of Xxxxxx Pepper &
Shefelman PLLC, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, or
such other place as is mutually agreed in writing by the parties to this
Agreement, on the date and at the time immediately prior to the closing of a
public offering of shares of common stock of Purchaser, or on such other date
and time as may be mutually agreed upon by the parties to this Agreement (the
"Closing Date").
2.4 Closing Deliveries.
(a) By Seller. At Closing, Seller will deliver to Purchaser
certificates representing the Company Shares to be acquired by Purchaser, such
certificates duly endorsed or accompanied by duly executed blank stock powers,
as appropriate, free and clear of all Liens.
(b) By Purchaser. At Closing, Purchaser will deliver to Seller
duly endorsed certificates representing the Purchaser Shares to be issued to
Purchaser, free and clear of all Liens. Any certificate representing the
Purchaser Shares will be endorsed with the following legend:
These securities have not been registered under the Securities
Act of 1933, as amended (the "Act"). Such securities may not
be sold or offered for sale, transferred, hypothecated or
otherwise assigned in the absence of an effective registration
statement with respect thereto under such Act or an opinion
reasonably acceptable to the Company of counsel reasonably
acceptable to the Company that an
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exemption from registration for such sale, offer, transfer,
hypothecation or other assignment is available under such Act.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser as of the date of this Agreement and as of the Closing Date as
follows:
3.1 Corporate Organization and Standing; Power and Authority. The
Company is a corporation validly existing and in good standing under the laws of
the state of Oregon. The Company has full power and authority (corporate or
otherwise) to own, lease or operate its respective properties and to conduct its
respective business as currently conducted. The Company is duly qualified as a
foreign corporation for the transaction of business and is in good standing in
each jurisdiction in which such company owns or leases its properties or
conducts any business so as to require such qualification, except where failure
to be so qualified would not have a material adverse effect on the condition
(financial or otherwise) or the operations of the Company taken as a whole (a
"Material Adverse Effect"). Seller has delivered to Purchaser true and complete
copies of the Articles of Incorporation and Bylaws of the Company, together with
any and all amendments thereto.
3.2 Capitalization.
(a) The authorized capital stock of the Company consists of
__________ shares of common stock, $______ par value, of which ________ shares
are issued and outstanding. The Company Shares have been duly authorized in
compliance with applicable law, and are fully paid and nonassessable.
(b) Seller has good and marketable title to, and owns, the
Company Shares, beneficially and of record. The Company Shares are free and
clear of all Liens, demands, and adverse claims of whatsoever nature. Seller has
full voting power over the Company Shares, subject to no proxy, shareholders'
agreement, voting trust or other agreement relating to the voting of any of the
Company Shares. Other than this Agreement, there is no agreement between Seller
and any other Person with respect to the disposition of the Company Shares or
otherwise relating to the Company Shares. Upon consummation of the Closing
deliveries described in Section 2.4, Seller will have transferred (or caused to
be transferred) to Purchaser good title to the Company Shares, free and clear of
all Liens.
(c) No Person has any preemptive right to purchase any Company
Shares or any other securities of the Company. There are no outstanding
securities or other instruments of the Company which are convertible into or
exchangeable for any shares of its capital stock. There are no contracts,
arrangements, commitments or restrictions relating to the issuance, sale,
transfer or purchase or obtaining of capital stock or other securities or
instruments of the Company. There is no existing option, warrant, right, call or
commitment of any character granted or issued by the Company governing the
issuance of shares of its capital stock.
3.3 Organization; Authorization; Enforceability. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Oregon. Seller has full corporate power and authority to enter
into, execute and deliver this Agreement and all of the documents and
instruments to be executed pursuant to or in connection with this
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Agreement, and to carry out the transactions contemplated by this Agreement and
such other documents and instruments. All corporate action on the part of Seller
necessary for the authorization, execution, delivery and performance by Seller
of this Agreement and the consummation of the transaction contemplated by this
Agreement has been taken or will be taken prior to Closing. This Agreement has
been duly executed and delivered by Seller. As of the Closing Date, each
document or instrument to be executed and/or delivered pursuant to this
Agreement to which Seller or the Company is a party will have been duly and
validly executed and delivered by Seller. Assuming the due authorization,
execution and delivery by Purchaser, this Agreement constitutes a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms, except to the extent that enforceability may be limited by bankruptcy,
reorganization, insolvency or other laws affecting the enforcement of creditors'
rights generally or the availability of equitable remedies subject to the
discretion of the court.
3.4 Investment. Seller is acquiring the Purchaser Shares for its own
account for investment and not with a view to, or for resale in connection with,
the sale or distribution thereof, or the granting of any participation therein.
Seller has no present intention of distributing or selling to others any of the
Purchaser Shares or granting any participation therein, except in compliance
with all applicable federal and state securities laws.
3.5 Absence of Certain Conflicts. Neither the execution and delivery of
this Agreement by Seller nor the consummation of the transactions contemplated
by this Agreement will (a) conflict with or result in a breach of any provision
of the Articles of Incorporation or Bylaws of Seller or the Company, or (b) to
the knowledge of Seller, violate any judgment, decree, order, injunction, or any
statute, law, regulation or rule of any Governmental Authority applicable to
Seller, the Company, or any other restriction of any kind or character by which
any of them or their respective properties or assets may be bound, in either
case to the extent that such conflict or violation might reasonably be expected
to have a Material Adverse Effect.
3.6 Liabilities. To the knowledge of Seller, except for (a) Liabilities
reflected on the consolidated statements of financial condition of the Company
as of December 31, in each of the two fiscal years 1996 and 1995 and the related
statements of income, statement of stockholders' equity and statements of cash
flows for the same periods ("Financial Statements"); (b) Liabilities incurred by
the Company in the ordinary course of the Business subsequent to the period
covered in the Financial Statements; (c) Liabilities explicitly arising under
the provisions of the leases, contracts, agreements and other commitments
previously disclosed to Purchaser; and (d) any Taxes; there are no Liabilities
that would, individually or in the aggregate, have a Material Adverse Effect.
3.7 Absence of Material Changes. To the knowledge of Seller, since
December 31, 1996, there has not been any event or circumstances (a) which has
had a Material Adverse Effect, or (b) that might reasonably be expected to have
a Material Adverse Effect.
3.8 Absence of Certain Developments. To the knowledge of Seller, except
as disclosed below or as otherwise provided in this Agreement, since December
31, 1996, the Company has not:
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(a) conducted its Business other than in the ordinary course
or in the manner in which the Business has been conducted prior to such date;
(b) issued or sold any equity securities, securities or
instruments convertible into equity securities, or warrants, options, calls or
other rights to acquire equity securities, or entered into any merger,
recapitalization, reclassification, stock split, reorganization or other
transaction affecting its capital stock;
(c) paid or agreed to pay any salaries, royalties, bonuses or
other compensation to any Person (other than in the ordinary course of Business
consistent with past practices);
(d) agreed to do any of the foregoing.
3.9 Proprietary Rights. To the knowledge of Seller, the Company owns,
or is duly licensed and has the right to use (and to license others to use, to
the extent they are licensing others to use), all computer software used in
connection with the Business.
3.10 Taxes. To the knowledge of Seller, the Company has timely filed,
either separately or as a member of a consolidated, combined or unitary group (a
"Combined Group"), all material Returns required by applicable law to be filed
by them and have paid, either separately or as a member of a Combined Group, all
Taxes shown to be due or payable on such Returns. In those cases where Taxes
have accrued but are not yet due and payable, the Company has established
adequate reserves or accruals for the payment of all such Taxes. The Company
does not have any liability for any Taxes in excess of the amounts so paid or
the reserves or the accruals as established.
3.11 Contracts and Commitments; No Default.
(a) To the knowledge of Seller, all of the Material Contracts
have previously been disclosed to Purchaser. To the knowledge of Seller, each of
the Material Contracts is in full force and effect and enforceable in accordance
with its terms. To the knowledge of Seller, the Company has not received notice
of cancellation of or intent to cancel any of the Material Contracts. To the
knowledge of Seller, there exists no event of default or occurrence, condition
or act on the part of the Company or on the part of the other party to such
Material Contracts which constitutes or would constitute (with notice or lapse
of time or both) a breach or cause or permit acceleration of any obligation of
the Company which individually or in the aggregate would have a Material Adverse
Effect.
(b) To the knowledge of Seller, with the exception of the
consents listed on Schedule 3.11, the consummation of the transactions
contemplated by this Agreement will not cause any default under any of the
Material Contracts, and no consent of any other party to the Material Contracts
is required in connection with the execution, delivery and performance of this
Agreement by Seller.
3.12 Litigation; Judgments. To the knowledge of Seller, there is (a) no
litigation or suit, administrative or judicial, to which the Company is a party,
and (b) no claim, investigation,
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arbitration, grievance, or other proceedings pending or, to the knowledge of
Seller, threatened against the Company at law or in equity, or before any
Governmental Authority the adverse determination of which, individually or in
the aggregate, would have a Material Adverse Effect.
3.13 Compliance with Laws. To the knowledge of Seller, the Company (a)
is not in violation of any federal, state, local or foreign law, rule,
ordinance, regulation or order applicable to the Assets or the Business, and (b)
has not received any complaint or notice from any Governmental Authority,
alleging that any of them has violated any law, rule, regulation, order,
licensing requirement, authorization or accreditation or judicial or
administrative decision, either of which event described in (a) or (b) has
potential consequences that could have a Material Adverse Effect.
3.14 Brokers and Finders. Neither Seller nor any Person acting on
behalf of Seller has employed any broker, agent or finder or incurred any
Liability for any brokerage fees, agents' commissions or finders' fees in
connection with the transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as of the date of this Agreement and as of the Closing Date
as follows:
4.1 Corporate Organization and Standing; Power and Authority. Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Oregon. All corporate action on the part of Purchaser
necessary for the authorization, execution, delivery and performance by
Purchaser of this Agreement and the consummation of the transactions
contemplated by this Agreement has been taken. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
by this Agreement will conflict with or result in a breach of any provisions of
the Articles of Incorporation or Bylaws of Purchaser. The Purchaser Shares, when
issued, will be validly issued, fully paid and nonassessable.
4.2 Enforceability. This Agreement has been duly executed and delivered
by Purchaser, and, as of the Closing Date, each document or instrument to be
executed and/or delivered pursuant to this Agreement to which Purchaser is a
party, will have been duly and validly executed and delivered by Purchaser.
Assuming the due authorization, execution and delivery by Seller, this Agreement
is a valid and binding agreement of Purchaser enforceable in accordance with its
terms, except to the extent that enforceability may be limited by bankruptcy,
reorganization, insolvency or other laws affecting the enforcement of creditors'
rights generally or the availability of equitable remedies subject to the
discretion of the court.
4.3 Consents. All consents, approvals, qualifications, licenses, orders
or authorizations of, or filings with, any Governmental Authority required in
connection with Purchaser's valid execution, delivery or performance of this
Agreement have been obtained, given or made or will, as of the Closing Date,
have been obtained, given or made.
4.4 Absence of Certain Conflicts. Neither the execution and delivery by
Purchaser of this Agreement nor the consummation of the transaction contemplated
by this Agreement will
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violate any judgment, decree, order, injunction, or, to the knowledge of
Purchaser, any statute or law, regulation or rule of any Governmental Authority
applicable to Purchaser.
4.5 Litigation. There is no pending or, to the knowledge of Purchaser,
threatened action or suit which alone or in the aggregate with such other
actions and suits could reasonably be expected to restrict Purchaser's ability
to perform its obligations under this Agreement or to carry out the transactions
contemplated by this Agreement.
4.6 Brokers and Finders. Neither Purchaser nor any Person acting on
behalf of such Purchaser has employed any broker, agent or finder or incurred
any Liability for any brokerage fees, agents' commissions or finders' fees in
connection with the stock purchase transaction contemplated by this Agreement.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Obligations of Purchaser. Notwithstanding any other
provision of this Agreement, the obligation of each Purchaser to purchase the
Company Shares is subject to the satisfaction, on or before the Closing Date or
such earlier date as is specified below, of the following conditions, each of
which may be waived by Purchaser:
(a) No Governmental Proceeding or Litigation. No suit, action,
investigation, inquiry or other proceeding by any Governmental Authority or
other Person will have been instituted or threatened which seeks to restrain or
prohibit, or questions the validity or legality of, the transactions
contemplated by this Agreement or which if successfully asserted would otherwise
have a Material Adverse Effect, or would impose limitations on the ability of
Purchaser to effectively exercise full rights of ownership of the Company
Shares.
(b) Authorizations. All actions necessary to authorize the
execution, delivery and performance of this Agreement by Seller and the
consummation of the transactions contemplated by this Agreement will have been
duly and validly taken by Seller and the Company.
(c) Corporate Documents. Seller will have caused to be
delivered to Purchaser the minute books and stock records for the Company.
5.2 Conditions to Obligations of Seller. Notwithstanding any other
provision of this Agreement, the obligation of Seller to sell the Company Shares
is subject to the satisfaction, on or before the Closing Date or such earlier
date as is specified below, of the following conditions, each of which may be
waived by Seller:
(a) Authorizations. All actions necessary to authorize the
execution, delivery and performance of this Agreement by Purchaser and the
consummation of the transactions contemplated by this Agreement will have been
duly and validly taken by Purchaser.
(b) Litigation. No action, suit or proceeding will be pending
which would adversely affect the ability of Purchaser to carry out the
transactions contemplated by this Agreement.
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6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
6.1 Survival of Representations and Warranties. The parties agree that
the representations and warranties made by the parties in this Agreement, and
the indemnities under this Agreement, will survive for a period commencing on
the Closing Date and ending on the third anniversary of the Closing Date (the
"Survival Period").
6.2 Indemnification by Seller. Subject to the Closing having occurred
and the other limitations and qualifications set forth in this Section 6, Seller
will protect, defend, indemnify, and hold the Company, Purchaser, and each of
their respective, successors and assigns, (each, a "Purchaser Indemnitee")
harmless for, from and against any Loss (a) arising out of or due to any breach
of any of the representations, warranties, covenants or agreements of Seller
contained in this Agreement, (b) arising out of any litigation brought or
threatened by any third Person against the Company or Purchaser to the extent
such litigation relates to an act or omission of the Company occurring prior to
Closing not reserved or accrued for in the Financial Statements, or (c) in
connection with Taxes owing by the Company for periods ending on or prior to
Closing and not reserved for.
6.3 Indemnification by Purchaser. Subject to the Closing having
occurred and the provisions of this Section 6, Purchaser will protect, defend,
indemnify, and hold Seller and its successors and assigns (each, a "Seller
Indemnitee") harmless for, from and against any Loss (a) arising out of or due
to any breach of any of the representations, warranties, covenants or agreements
of Purchaser contained in this Agreement, (b) arising out of any litigation
brought or threatened by any third Person against the Company, Seller or an
Affiliate to the extent such litigation relates to an act or omission of the
Company occurring after Closing, or (c) in connection with Taxes owing by the
Company for periods ending after Closing.
6.4 Limitation on Claims.
(a) Survival Claims Period. Notwithstanding any other
provision in this Agreement, no claim or indemnified Loss may be asserted under
this Agreement unless the party seeking indemnification gives the other party
notice of such claim before the end of the applicable Survival Period; provided,
that where notice of such claim has been timely given, such claim will survive
the expiration of the Survival Period.
(b) Exclusive Remedy. If the transaction closes, the rights of
indemnification of either party under Section 6 will be the exclusive remedy as
to any matters addressed in this Agreement. Prior to the Closing, the rights of
the parties set forth in Section 7.3 will be the exclusive remedies of the
parties as to the matters addressed therein.
(c) Subrogation. Following indemnification as provided for
under this Agreement, the Indemnifying Party will be subrogated to all rights of
the Indemnitee with respect to all Persons relating to the matter for which
indemnification has been made.
6.5 Insured Losses. Notwithstanding any other term or provision of this
Agreement, the Indemnified Party will not be required to indemnify the
Indemnitee for a Loss to the extent that the Indemnitee receives insurance
payments covering such Loss; provided, that this
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provision would not result in the loss of, or a requirement to repay, such
insurance by the Indemnitee. In the event that insurance is not paid to the
Indemnitee to cover the full amount of the Loss, the Indemnifying Party will
remain liable for the difference between the insurance payment as described
above and the amount of the Loss.
7. MISCELLANEOUS.
7.1 Amendments and Waivers. The provisions of this Agreement may be
amended only by the written agreement of all of the parties to this Agreement.
Except as otherwise provided in this Agreement, any waiver, permit, consent or
approval of any kind or character on the part of any party of any provisions or
conditions of this Agreement must be made in writing and will be effective only
to the extent specifically set forth in such writing.
7.2 Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned by either
of the parties to this Agreement without the prior written consent of the other
party to this Agreement and any purported assignment or delegation of this
Agreement without such consent will be null and void.
7.3 Termination. At any time prior to the Closing Date, this Agreement
may be terminated:
(a) by mutual written consent of the parties to this
Agreement;
(b) by either Purchaser or Seller if the Closing has not
occurred by July 31, 1997, provided, however, that the right to terminate this
Agreement under this Section will not be available to a party whose failure to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Closing Date to occur on or before such date;
(c) by either Purchaser or Seller if a court of competent
jurisdiction has issued an order, decree or ruling permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, and such order, decree, ruling or other action has become final and
nonappealable; or
(d) by either party if the other party (i) breaches its
representations and warranties in any material respect, or (ii) fails to comply
in any material respect with any of their covenants or agreements contained in
this Agreement.
In the event of any termination pursuant to this Section 7.3, the parties to
this Agreement will be released from all liabilities and obligations arising
under this Agreement with respect to matters contemplated by this Agreement.
7.4 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
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7.5 Headings. The descriptive headings contained in this Agreement are
inserted for convenience of reference only and do not constitute a part of this
Agreement.
7.6 Notices. Any notices, requests, demands or other communications
required or permitted to be sent under this Agreement or under any document or
instrument to be executed and/or delivered pursuant to this Agreement must be in
writing and delivered personally, sent by overnight or international courier or
mailed by registered or certified mail, return receipt requested, to the
following addresses, and will be deemed to have been received on the day of
personal delivery, one business day after deposit with an overnight domestic
courier or three business days after deposit in the mail:
(a) Purchaser: Trendwest Resorts, Inc.
00000 X.X. 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
(b) Seller: I & I Holdings, Ltd.
c/o Jeld-Wen, inc.
0000 Xxxxxxxx Xxxxxxxxx
P. O. Box 1329
Xxxxxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
7.7 Governing Law; Jurisdiction. The validity, meaning and effect of
this Agreement will be determined in accordance with the laws of the State of
Washington applicable to contracts made and to be performed in that state. The
parties irrevocably submit to the jurisdiction of any Washington State or
federal court sitting in Seattle in any action or proceeding arising out of or
relating to this Agreement, and the parties irrevocably agree that all claims in
respect of such action or proceeding arising out of or relating to this
Agreement will be heard and determined in such a Washington State or federal
court. The parties consent to and grant to any such court jurisdiction over the
persons of such parties and over the subject matter of any such dispute and
agree that delivery or mailing of any process or other papers in the manner
provided in this Agreement, or in such other manner as may be permitted by law,
will be valid and sufficient service thereof.
7.8 Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by any reason of
this Agreement on any Persons other than the parties to it and their respective
permitted successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or Liability of any third Persons to any
party to this Agreement, nor will any provision give any third Persons any right
of subrogation or action over against any party to this Agreement.
7.9 Expenses; Attorneys' Fees. Whether or not the transactions
contemplated by this Agreement are consummated, and except as otherwise
expressly provided in this Agreement, each of the parties to this Agreement will
pay its own expenses incurred by it or on its behalf in connection with this
Agreement or any transactions contemplated by this Agreement. Notwithstanding
the foregoing, in any legal action or other proceeding brought to enforce or
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interpret the terms of this Agreement or any document or instrument to be
executed and/or delivered pursuant to this Agreement, the prevailing party or
parties will be entitled to reasonable attorneys' fees and other costs and
expenses incurred in that proceeding, in addition to any other relief to which
it is entitled.
7.10 Entire Agreement. This Agreement constitutes the entire agreement
of the parties concerning the matters referred to in this Agreement and therein
and supersedes all prior agreements and understandings, oral or written.
7.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, and all of which
together will constitute one instrument.
DATED the date first written above.
PURCHASER: TRENDWEST RESORTS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
SELLER: I & I HOLDINGS, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
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