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Exhibit 10.1
* * * WORLDMARK, THE CLUB * * *
MANAGEMENT AGREEMENT
(Fourth Amended)
THIS MANAGEMENT AGREEMENT is dated for reference purposes September 30,
1994, by and between WORLDMARK, THE CLUB, a California nonprofit mutual benefit
corporation ("Club"), and TRENDWEST RESORTS, INC., an Oregon corporation
("Manager" herein, and the "Declarant" under the Declaration establishing the
Vacation Owner Program), for the purpose of amending and restating in its
entirety as amended that Management Agreement between the same parties dated
September 14, 1989 and amended October 25, 1990, February 13, 1991, and December
21, 1992.
1: RECITALS.
1.1 Program. The Vacation Owner Program (the "Program") has been
created or will be created and enlarged by Manager by the recording in the
office of the county recorder of each county where Property subject to the
Program is located, that certain Declaration of Vacation Timeshare Program, Club
Esprit ("Declaration"), the first of which in dated September 14, 1989, and a
counterpart of which shall be recorded in each county, and shall describe each
Resort, where Club owns or leases real property subject to the Vacation-owner
Program and Club Memberships.
1.2 Property. Pursuant to the Declaration, Declarant shall convey or
transfer or cause to be conveyed or transferred each Phase of Property to the
Club at the same time the Declaration is recorded or filed as to that Phase.
1.3 Club. The Club is and will be responsible for ownership or leasing
and maintenance, control, operation, and management of the Property within the
Program, and for cleaning, maintenance, furniture repair and replacement, maid
service and general care of the Property.
1.4 Manager. The Club is authorized to retain a professional manager
and to delegate to such manager certain of the Club's powers and
responsibilities. The Board of Directors of the Club desires to engage Manager
to manage and operate the Vacation Program contemplated by the Declaration, and
Manager desires to accept such engagement, all on the terms and conditions set
forth below and pursuant to the Governing Documents.
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CONTENTS
Article/Section Page
--------------- ----
1: RECITALS................................................................ -1-
1.1 Program........................................................ -1-
1.2 Property....................................................... -1-
1.3 Club........................................................... -1-
1.4 Manager........................................................ -1-
2: ENGAGEMENT OF MANAGER................................................... -4-
3: DEFINITIONS............................................................. -4-
4: TERM.................................................................... -4-
4.1 Initial Term................................................... -4-
4.2 Automatic Renewal.............................................. -4-
4.3 Notice of Nonrenewal........................................... -4-
4.4 Termination.................................................... -4-
4.5 Resignation.................................................... -5-
4.5(a) Notice........................................ -5-
4.5(b) New Agreement................................. -5-
4.6 Return of Materials............................................ -5-
4.7 Audit.......................................................... -5-
5: DUTIES AND OBLIGATIONS OF MANAGER....................................... -5-
5.1 Generally. .................................................... -5-
5.1(a) Powers........................................ -5-
5.1(b) Delegation.................................... -5-
5.1(c) Efficiency.................................... -6-
5.2 Administrative Services........................................ -6-
5.2(a) Club Meetings................................. -6-
5.2(b) Club Records.................................. -6-
5.2(c) Rules......................................... -6-
5.2(d) Roster........................................ -6-
5.2(e) Club Insurance................................ -6-
5.2(f) Reservations.................................. -6-
5.2(g) Exchange Program.............................. -6-
5.2(h) Vote.......................................... -7-
5.2(i) Professionals................................. -7-
5.3 Financial Services............................................. -7-
5.3(a) Budget........................................ -7-
5.3(b) Special Assessments........................... -7-
5.3(c) Collections................................... -7-
5.3(d) Bank Accounts................................. -7-
5.3(e) Disbursements................................. -8-
5.3(f) Financial Statements.......................... -8-
5.3(g) Books and Records............................. -8-
5.3(h) Reports....................................... -8-
5.3(i) Inventory..................................... -8-
5.4 Physical Services.............................................. -8-
5.4(a) Inspections................................... -8-
5.4(b) Repair and Maintenance........................ -8-
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5.4(c) Check-In and Check-Out........................ -9-
5.4(d) Maid Service.................................. -9-
5.4(e) Major cleaning................................ -9-
5.4(f) Right of Entry................................ -9-
5.5 Manager Insurance.............................................. -9-
5.5(a) Worker's Compensation......................... -9-
5.5(b) Liability..................................... -9-
5.5(c) Fidelity...................................... -9-
5.5(d) Errors and Omissions.......................... -10-
5.6 Limitations.................................................... -10-
5.6(a) Contracts..................................... -10-
5.6(b) Budget........................................ -10-
5.7 Limited Liability.............................................. -10-
6: COMPENSATION............................................................ -11-
6.1 Fee............................................................ -11-
6.2 Expenses....................................................... -11-
6.3 Advances and Reimbursements.................................... -11-
6.4 Payment........................................................ -11-
6.5 Discounts...................................................... -11-
7: GENERAL PROVISIONS...................................................... -12-
7.1 Agency......................................................... -12-
7.2 Amendment...................................................... -12-
7.3 Arbitration.................................................... -12-
7.4 Assignment..................................................... -12-
7.5 Attorneys' Fees................................................ -12-
7.6 Captions....................................................... -12-
7.7 Competition.................................................... -12-
7.8 Entire Agreement............................................... -12-
7.9 Further Assurances............................................. -13-
7.10 Hold Harmless and Indemnity.................................... -13-
7.11 Law Applicable................................................. -13-
7.12 Legal Effects.................................................. -13-
7.13 Notices........................................................ -13-
7.13(a) Manager................................................ -13-
7.13(b) Club................................................... -14-
7.14 Parties In Interest............................................ -14-
7.15 Reasonableness................................................. -14-
7.16 Records........................................................ -14-
7.17 Remedies....................................................... -14-
7.18 Severability................................................... -14-
7.19 Successors..................................................... -14-
7.20 Survival....................................................... -14-
7.21 Time........................................................... -15-
7.22 Waiver......................................................... -15-
7.23 Word Usage..................................................... -15-
7.24 Exhibits....................................................... -15-
8: SIGNATURES.............................................................. -15-
Exhibit:
A Club Budget
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2: ENGAGEMENT OF MANAGER. Club hereby engages Manager as the exclusive
managing and servicing agent of the Vacation Owner Program contemplated by the
Declaration, and Manager hereby accepts said appointment and undertakes to
perform all of the services and responsibilities set forth herein in such
capacity, to implement and to comply with all the provisions of this Agreement
and the Governing Documents. If there is a conflict, the Declaration and Bylaws
shall supersede this Agreement.
3: DEFINITIONS. Unless the context otherwise requires, the Definitions set
forth in the DECLARATION OF VACATION TIMESHARE PROGRAM (CLUB ESPRIT -- OTTER
CREST) as may be amended from time to time ("Declaration"), are hereby adopted
as the definitions herein. The Declaration was originally recorded September 6,
1989, in Microfilm Volume 000, Xxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxx. A substantially similar Declaration shall be recorded in each county,
and shall describe each Resort, where the club owns or leases real property
subject to the Vacation Owner Program and Club Memberships. The provisions of
recorded Declarations shall have priority over this Agreement, and inconsistent
provisions among various Declarations shall be resolved in favor of the most
restrictive provision on the Club or Declarant and/or the most favorable
provision for protecting the Members.
4: TERM.
4.1 Initial Term. Unless terminated earlier pursuant to Paragraph 4.4,
below, the initial term of this Agreement shall be for a period of three (3)
years commencing on the date first written above or on October 1, 1989,
whichever is later ("effective date").
4.2 Automatic Renewal. The term of this Agreement shall be
automatically renewed annually on the anniversary of the effective date for one
(1) year at each renewal.
4.3 Notice of Nonrenewal. The Club may prevent automatic renewal by the
vote or written assent of a majority of the Voting Power residing in Members
other than Declarant and providing written notice of non-renewal to Manager at
least sixty (60) days prior to expiration of the then current term.
4.4 Termination. This Agreement may be terminated for cause at any time
prior to expiration, provided that, if the cause constitutes a breach or default
of this Agreement which is capable of being cured, such breach or default shall
not have been cured within 30 days following receipt by Manager of written
notice of such breach or default. If Manager shall dispute a termination by the
Club pursuant to this paragraph, the dispute may, at Manager's option be
submitted to arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association.
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4.5 Resignation. Manager may resign only upon the following conditions:
4.5(a) Notice. Manager shall have given at least 90 days prior
written notice to the Club; and
4.5(b) New Agreement. Prior to or at the expiration of the 90-day
notice period Club shall have entered into a management agreement with another
management firm in accordance with applicable provisions of the Governing
Documents, or shall have made a determination to discharge the duties delegated
to Manager hereunder with its own personnel or otherwise; provided, however,
that if the Club shall fail to make reasonable efforts during such 90-day
period, Manager's resignation shall be effective at the end of such 90-day
notice period. If the Club has made reasonable efforts during such 90-day period
to satisfy such requirements and has not entered into such a management
agreement, or determined to discharge the duties delegated to Manager hereunder
with its own personnel or otherwise and thereafter continues to use reasonable
efforts to discharge such requirements, the resignation of Manager shall not be
effective until such a new management agreement is entered into between the Club
and a new management firm, or the Club has determined to discharge such duties
with its own personnel or otherwise.
4.6 Return of Materials, On or before the effective date of Manager's
resignation or termination or expiration of this Agreement, Manager shall give
to the successor managing agent or the Club all books and records relating to
the management and operation of the Club and the Program and any Club
proprietary materials.
4.7 Audit. Any audit requested upon termination or expiration of this
Agreement shall be at the expense of the party requesting the audit.
5: DUTIES AND OBLIGATIONS OF MANAGER.
5.1 Generally. Manager shall provide or cause to be provided all
services and personnel required to administer the affairs of the Club and to
manage and operate the Vacation Program contemplated by the Declaration, at all
times not inconsistent with the Governing Documents, the resolutions of the
Board and Members, and this Agreement.
5.1(a) Powers. Manager shall have all the powers and authority, and
limitations thereon, which the Club Board has, pursuant to the Governing
Documents, to the extent necessary to perform its duties and obligations
hereunder.
5.1(b) Delegation. Subject to Paragraph 5.6 below, Manager may
delegate its authority and responsibilities to one or more subagents or
subcontractors, whether or not affiliated with Manager, for such periods and
upon such terms as Manager deems
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proper, but shall remain ultimately responsible for the performance of any such
subagents.
5.1(c) Efficiency. Manager will furnish its services and use its
best efforts to provide Club with economic efficiency consistent with safe and
proper management and enjoyment of the Program by the Members and their guests.
Manager will use its best efforts to keep total operating costs within the
Budget.
5.2 Administrative Services. Without limiting the generality of the
foregoing, Manager shall provide the following administrative services:
5.2(a) Club Meetings. Manager shall organize and attend the
meetings of the Board and of the Members, including the preparation and delivery
of notices of meetings, in accordance with the Bylaws. Manager shall prepare the
agenda for all meetings and assist in the conduct of the meetings and oversee
the election of directors and other business. Manager shall circulate minutes of
any such meeting as prepared by the secretary of the Club.
5.2(b) Club Records. Manager shall maintain all records of the
affairs of the Club, including, but not limited to, minutes of meetings,
correspondence, financial records and modification of Bylaws and Rules and
Regulations.
5.2(c) Rules. Manager shall, from time to time as necessary or
desirable, recommend to the Club that it amend or supplement the Rules and
Regulations.
5.2(d) Roster. Manager shall compile and maintain a complete and
accurate list of Members ("Roster") setting forth the name and mailing address
of each Member. Manager shall, upon written request from a Member, furnish a
copy of the Roster to the Member, provided that the Manager may (i) charge a
reasonable fee to such Member for the cost of preparation of the Roster, and
(ii) require that such Member agree in writing to make no commercial use of the
Roster.
5.2(e) Club Insurance. Manager shall procure and keep in force all
insurance required by the Governing Documents. Manager shall administer all such
insurance and any claims under such insurance policies.
5.2(f) Reservations. Manager shall establish and operate a
reservation system implementing the reservation procedure set forth in the
Rules. The reservation system shall include the books and records required to
reflect reservations made, Assigned Periods actually used, and such other
information as shall be necessary to coordinate efficiently the Program
operation.
5.2(g) Exchange Program. Manager shall administer any exchange
program with which Club may be affiliated from time to time.
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5.2(h) Vote. If specifically authorized by Club, Manager shall
represent and act and vote for the membership of the club in all Home Owner or
Condominium Associations ("Master Associations") at Projects where the Club owns
Property. Manager shall exercise such vote and representation in the best
interest of the Club, in Manager's discretion unless specifically directed by
the Club.
5.2(i) Professionals. Manager may hire or retain on behalf of Club,
and coordinate with, professionals such as attorneys, accountants and engineers,
but must obtain Board or Member approval if the cost of such professional(s) is
not included in the Budget.
5.3 Financial Services. Without limiting the generality of Section 5.1
above, Manager shall, subject to the supervision of the Club, provide the
following financial services:
5.3(a) Budget. Attached hereto as Exhibit A is the initial budget
for the Club. Manager shall prepare and submit to the Board for approval, not
less than 90 days prior to the end of each succeeding Fiscal Year, a budget
meeting the requirements of the Governing Documents. Each budget approved by the
Board is called the "Budget".
5.3(b) Special Assessments. Manager shall determine whether a
special assessment may be required, from time to time, and, promptly upon making
a determination that a special assessment is required, shall submit a
recommendation to the Board that a special assessment be levied.
5.3(c) Collections. To the extent that Assessments against Members
are not otherwise collected from Members, Manager shall cause the Assessments to
be collected and enforce payment of Assessments as follows:
(i) Manager shall cause to be prepared and mailed to all
Members periodic statements setting forth the amount of all Assessments then due
from each Member, pursuant to the Bylaws; and,
(ii) Manager shall cause to be prepared and mailed to any
delinquent Members a notice of delinquency and shall use every effort to collect
delinquent Assessments as provided in the Governing Documents.
5.3(d) Bank Accounts. Manager shall establish the bank accounts
provided for in the Bylaws or designated by the Board, and shall promptly
deposit or invest funds collected from Members and all other amounts collected
by Manager in connection with the performance of its duties hereunder, in the
accounts designated for such purposes. The Manager shall keep accurate books and
records reflecting the amount of such accounts attributable to each Member.
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5.3(e) Disbursements. Manager shall disburse from the bank
accounts, over two signatures, only in the payment of all expenses incurred
consistent with the applicable Budget and as otherwise permitted by the
Governing Documents and adequately substantiated in writing, in Manager's sole
discretion.
5.3(f) Financial Statements. Manager shall cause an audit to be
conducted and the financial statements to be prepared and copies thereof
distributed to each Member as provided in the Governing Documents.
5.3(g) Books and Records. Manager shall keep and maintain or cause
to be kept and maintained full and adequate books and records reflecting the
results of operation of the Program in accordance with generally accepted
accounting principles. The books of account and other records relating to the
operation of the Program shall be available to the Club and its representatives
at all reasonable times for examination, inspection and transcription.
5.3(h) Reports. Manager shall prepare or cause to be prepared the
reports and statements required to be prepared by the Governing Documents and
such additional membership communications and reports as to subjects and
frequency as the Board reasonably requests.
5.3(i) Inventory. Manager shall maintain an accurate inventory of
all chattels, equipment, tools, appliances, materials and supplies purchased for
or owned or leased by the Club.
5.4 Physical Services. Without limiting the generality of Section 5.1
above, Manager shall provide the following physical services.
5.4(a) Inspections. Manager shall make regular inspections of the
Units and render reports and make recommendations concerning the Property to the
Board. In addition, but not by way of limitation, after each Member has
checked-out of a Unit, the written inventory of the Common Furnishings completed
by the Member who just vacated the Unit (or, if such occupant failed to complete
a written inventory, the master written inventory for such Unit) shall be
compared with an inventory actually made by the Manager or the Manager's agent
subsequent to such occupant's departure, and both such inventories shall be
retained for a period of at least one year. In addition, a general check shall
be made of the physical condition of the Unit, and any damage thereto (other
than normal wear and tear) shall be noted. If any item is missing or there is
damage to the Unit, Manager shall, at the expense of the Club, replace the
missing item(s) and/or cause the damage to be repaired and shall charge the
Member for the missing item(s) and/or the damage, if in the judgment of Manager
it is reasonable to do so.
5.4(b) Repair and Maintenance. Manager shall cause the Property,
the Units and the Common Furnishings to be repaired,
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maintained, repainted, furnished and refurnished in a manner consistent with the
reserves established for such purposes and as required to maintain the quality
standards of the Club, and for which adequate personnel shall be available at
all times.
5.4(c) Check-In and Check-Out. Manager shall cause on-site
personnel to be available at all required times in order to check-in and
check-out Members and/or their Guests.
5.4(d) Maid Service. Manager shall cause maid service to be
provided to the Units as prescribed by the Club.
5.4(e) Major cleaning. Manager shall cause each Unit to be
thoroughly cleaned at least annually and otherwise assure that it is in a
first-class condition at all times during Assigned Periods and Bonus Use.
5.4(f) Right of Entry. Manager, or its duly authorized agents or
employees, shall have the right, at reasonable times and upon reasonable notice,
without liability to the Member, to enter into any Unit for the purposes of
carrying out the above described duties and responsibilities, if necessary, or
(i) maintaining such Unit in good repair and sanitary condition; (ii) removing
any Improvements constructed, reconstructed, refinished, altered or maintained
in or upon such Unit in violation of the Governing Documents; (iii) restoring
such Unit as authorized by the Governing Documents; (iv) installing utilities or
conveniences for the Unit or any other Unit; or (v) otherwise enforcing or
carrying out its duties or the duties of Club under the Governing Documents and
applicable laws and ordinances. "Reasonable notice" of entry shall mean at least
forty-eight (48) hours except in emergencies.
5.5 Manager Insurance. Manager shall, at its sole cost and expense,
furnish to Club, prior to the effective date, satisfactory evidence of the
following insurance coverages (i) showing Manager as the named insured, (ii)
written by such carrier or carriers as shall be acceptable to the Club, (iii)
naming Club as an additional insured and/or providing for waiver of subrogation
as to club, (iv) and providing that they are cancelable only upon 30 days prior
written notice to the secretary of the Club:
5.5(a) Worker's Compensation. Insurance required by the Worker's
Compensation Laws of the respective states wherein Manager has employees;
5.5(b) Liability. Insurance against loss or damage resulting from
damage to property in the amount of at least $100,000 and injury or death to any
person or persons in the aggregate sum of at least $1,000,000 per occurrence.
5.5(c) Fidelity. A bond or insurance in favor of the Club, against
loss from monies, securities or other properties being stolen, converted or
misappropriated by Manager or any of its
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directors, officers or employees, in an amount reasonably satisfactory to the
regulatory authorities in states where Memberships are marketed; and
5.5(d) Errors and Omissions insurance if available at reasonable
and competitive rates.
5.6 Limitations. Notwithstanding the powers of the Manager described
above in Paragraphs 5.1 through 5.5, inclusive, Manager shall not:
5.6(a) Contracts. Enter into a contract with a third person or
entity whereby such person or entity will furnish goods or services to the
Program or a Property for a term longer than one year unless authorized by the
vote or written consent of at least a majority of the Voting Power held by
Members other than Declarant, except for:
(i) Utilities. A contract with a public utility company if
the rates charged for the materials or services are regulated by a public
utilities commission; provided, however, that the term of the contract shall not
exceed the shortest term for which the utility company will contract at the
regulated rate;
(ii) Insurance. Prepaid casualty and/or liability insurance
policies not to exceed a term of three years, provided that the policy permits
short rate cancellation by the insured; or
(iii) Five-year or shorter contracts or leases for the
following (so long as the lessor or provider is not an entity in which Declarant
or Manager has a direct or indirect interest of ten percent (10%) or more): (1)
Common Furnishings; (2) laundry room fixtures and equipment; (3) cable or
satellite TV equipment or services; (4) alarm services or equipment; and/or (5)
access to an exchange program by Members electing to participate therein.
5.6(b) Budget. Enter into any contract in the name of the Club for
goods or services unless (a) the amount payable by the Club pursuant thereto
shall not exceed the amount for such items set forth in the then current Budget;
(b) such contract provides that the persons or entities with whom such contract
is made shall have no claim against the club for any amount whatsoever in excess
of the amount for such item(s) as is set forth in the then current Budget; and
(c) Manager has authorized total expenditures for such item(s) during the fiscal
year not in excess of the total amount budgeted therefor.
5.7 Limited Liability. Manager shall not be responsible for the acts,
omissions to act or conduct of any of the Members of for the breach of any of
the obligations of any of the Members.
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6: COMPENSATION.
6.1 Fee. Manager shall receive a monthly compensation equal to
one-twelfth (1/12th) of the lesser of (a) fifteen percent (15%) of the budgeted
annual expenses and reserves of the Club, exclusive of Manager's Fee, or (b) the
projected amount remaining after the Club pays or adequately provides for its
expenses and reserves, which amount shall be adjusted as each year passes to
equal the actual amount so available. Manager shall not be entitled to extra
compensation for attendance at meetings or other extraordinary time commitments.
6.2 Expenses. Club shall be responsible for and pay or reimburse
Manager for all costs and expenses arising from: (a) Ownership and management of
the Property (except direct costs of acquisition or as lessee); (b) services
applied directly to Club purposes, and solely for the benefit of Clubs, Club,
such as maid and cleaning, telephone, postage, messenger and delivery,
photocopying, and printing; (c) rent and utilities for offices used solely for
Club business; (d) supplies and equipment used solely for Club business,
including lease or rent payments therefor; (e) Club employees or independent
contractors for services rendered exclusively to Club; (f) insurance for Club
and Club employees as required by the Governing Documents.
Manager shall be responsible for and pay from Manager's own funds all
costs and expenses arising from: (a) acquisition or leasing of the Property and
transfer or sublease thereof to the Club; (b) services which are not applied
directly to Manager's duties hereunder and are not solely for the benefit of
club; (c) supplies, equipment and offices not used exclusively for the benefit
of Club; (d) advertising, commissions and other marketing costs regarding sales
of Membership; (e) insurance or bonding required of Manager by this Agreement;
and (f) employees of Manager.
6.3 Advances and Reimbursements. Manager shall not be required to
perform any act or duty hereunder involving an expenditure of money unless there
shall be sufficient funds therefor in the bank accounts of the Club. If at any
time the funds in the bank accounts of the Club are not sufficient to pay Club
obligations in a timely manner, Manager, although not obligated to do so, may
advance such sums as it deems necessary, and Manager shall thereupon be entitled
to reimburse itself from Club funds for the amount of such advances, together
with interest at the rate of 10% per year beginning from and after 20 days from
the date of the advance by Manager.
6.4 Payment. Manager is hereby authorized to pay itself its Management
Fee, reimbursements, and authorized expenses, out of the General Account of the
Club.
6.5 Discounts. All discounts, rebates or commissions or like items
shall benefit the Club.
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7: GENERAL PROVISIONS.
7.1 Agency. Nothing in this Agreement shall constitute a partnership
between, or joint venture by, the parties hereto, or constitute Manager an
employee of Club. Manager is an independent contractor.
7.2 Amendment. No supplements, modification or amendment of this
Agreement shall be established except in a writing executed by each of the
parties.
7.3 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in King County, Washington, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then
existing, and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
7.4 Assignment. This Agreement is personal between or among the
parties, and neither party may sell, assign, transfer, or hypothecate any rights
or interests created under this Agreement without the express written consent of
the other party. Any purported sale, assignment, transfer, or hypothecation of
any such rights or interests of either party without such consent shall be void.
7.5 Attorneys' Fees. Should any action or proceeding be commenced
between the parties hereto concerning this Agreement or their rights and duties
hereunder, the party prevailing in such action or proceeding shall be entitled
to reasonable attorneys' fees and costs in such action or proceeding, which
shall be determined by the court or arbitrator. Each party shall bear its own
costs, expenses, and attorney fees incurred in negotiating, preparing, and
signing this Agreement.
7.6 Captions. The subject headings or captions in this Agreement are
for convenience and reference only and do not in any way modify, interpret, or
construe the intent of the parties or affect any of the provisions of this
Agreement.
7.7 Competition. Club agrees that it will not solicit, hire, employ, or
in any way obtain or retain the services of any employee of Manager, whether or
not for compensation, during the Term of this Agreement and for a period of
twelve (12) months following the date of termination or expiration of this
Agreement.
7.8 Entire Agreement. This Agreement and all documents executed
contemporaneously herewith and/or specifically referred to herein, such as the
Governing Documents, constitute the complete, exclusive and final expression of
the agreement between the parties pertaining to the subject matter contained in
it; it supersedes all prior and contemporaneous agreements, representations, and
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understandings of the parties; and it may not be contradicted by evidence of any
prior or contemporaneous agreement. No extrinsic evidence whatsoever may be
introduced in any proceeding concerning the terms of this Agreement.
7.9 Further Assurances. The parties hereto agree to perform any
further acts and to execute and deliver any further documents which may be
necessary or appropriate to carry out the purposes of this Agreement.
7.10 Hold Harmless and Indemnity. Each of the parties agrees to hold
the other party harmless and indemnify the other party from and against any and
all loss, cost, damage or liability which the other party may incur or sustain
as a result of any action by such party or any breach by such party of any
warranty or representation contained in this Agreement, or for any
misrepresentation or material omission in the representations herein, or for any
violation of any applicable law, ordinance or regulation, whether by neglect or
willful act and whether by a party or its agents contractors, or employees. Club
agrees to hold harmless and indemnify Manager from and against any and all loss,
cost, damage or liability to which Manager may be subjected by reasonable, good
faith performance of its duties hereunder. Such indemnification shall include,
among other costs, attorneys' fees and costs of appeal, settlement or defense,
and the obligation to undertake or assume the defense of any claim.
7.11 Law Applicable. This Agreement and its interpretation,
construction, and enforcement, shall be governed by the laws of the State of
Washington.
7.12 Legal Effects. No representation, warranty or recommendation is
made by any party or his respective agent or attorney regarding the legal
sufficiency or effect or tax consequences of any transaction contemplated under
this Agreement to any individual or specific entity, and each party acknowledges
it has been advised to submit this Agreement to independent legal counsel before
signing it. There shall be no presumption in favor of or against any party with
regard to which party arranged for initial drafting of this Agreement.
7.13 Notices. Any notice required or desired to be given hereunder
shall be deemed given if personally delivered, or ninety-six (96) hours after
mailing (first class postage prepaid, return receipt requested), to the parties
at the following addresses, or at such other addresses as may be given by proper
notice:
7.13(a) Manager: Trendwest Resorts, Inc., 0000 Xxxx Xxxxxxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
With a copy to: Xxxx Xxxxxx Xxxx, 0000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxx 00000.
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7.13(b) Club: Club Esprit., 0000 Xxxx Xxxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000,
7.14 Parties In Interest. Unless specifically otherwise provided
herein, (a) nothing in this Agreement, whether express or implied, is intended
to confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties hereto; (b) nothing in this Agreement is intended
to relieve or discharge the obligation or liability of any third persons to any
party to this Agreement; and (c) nothing herein shall give any third person any
right of subrogation or action over or against any party to this Agreement.
7.15 Reasonableness. The parties recognize that this Agreement contains
conditions, covenants, and time limitations that are reasonably required for the
protection of the business of the parties or a particular party. If any
limitation, covenant or condition shall be deemed to be unreasonable and
unenforceable by a court or arbitrator of competent jurisdiction, then this
Agreement shall thereupon be deemed to be amended to provide for modification of
such limitation, covenant and/or condition to such extent as the court or
arbitrator shall find to be reasonable.
7.16 Records. Each party shall maintain books and records containing
all transactions in furtherance of this Agreement. Such books and records shall
be maintained in accordance with usual accounting methods. Either party shall
have the right, during normal business hours and upon reasonable notice, to
examine the books and records of the other party relating to this Agreement.
7.17 Remedies. No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy given hereunder
or now or hereafter existing at law or in equity. The election of any one or
more remedies by any party shall not constitute a waiver of the right to pursue
other available remedies.
7.18 Severability. If any provision of this Agreement is held to be
unenforceable, invalid or illegal by any arbitrator or court of competent
jurisdiction, such shall not affect the remainder of this Agreement.
7.19 Successors. Subject to the paragraph regarding Assignment, this
Agreement shall be binding upon and benefit the heirs, legal representatives,
successors, and assigns of the parties.
7.20 Survival. All covenants and warranties hereunder shall survive the
recording of any document and the final payment hereunder, and some provisions
shall survive termination or expiration of this Agreement for a reasonable time
or for the specified time if necessary to carry out their reasonably intended
effect.
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7.21 Time. Time is of the essence of this Agreement, and any breach of
a time covenant or condition hereunder shall be deemed a material breach of this
Agreement, However, if any date or time referred to herein shall fall on
Saturday, Sunday, or a legal holiday, the date or time shall be extended to the
next regular business day.
7.22 Waiver. No waiver of enforcement or breach of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
person making the waiver.
7.23 Word Usage. Unless the context clearly otherwise requires, (a) the
plural and singular numbers or the masculine, feminine and neuter genders shall
each be deemed to include the others; (b) "shall", "will", or "agrees" are
mandatory, and "may" is permissive; (c) "or" is not exclusive; and (d)
"including" or "such as" is not limiting.
7.24 Exhibits. The following Exhibit is attached hereto and
incorporated herein by this reference:
A Club Budget
8: SIGNATURES: The individuals applying their signatures to this Agreement
warrant that they are signing in a representative capacity for a person or
entity whose name is set forth immediately above their signature, and that they
have been expressly authorized to sign the Agreement on behalf of such person or
entity.
CLUB: MANAGER:
WORLDMARK, THE CLUB, TRENDWEST RESORTS, INC.,
A California Nonprofit Mutual An Oregon Corporation
Benefit Corporation
By: ________________________ By: ________________________
J. Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx,
Secretary President
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