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Exhibit 10.18
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is
made this 1st day of April, 1993, by and between TRENDWEST RESORTS, INC.
(hereinafter referred to as "Seller") and Xxxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx
(hereinafter collectively referred to as "Buyers"), 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 or collateral notes 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 Buyers 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 Buyers at the Closing in the form of attached Exhibit C.
d. "Buyers" means Xxxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx both
individual residents of the state of Oregon with their mailing address located
at 0000 Xxxxxxxx Xxxx., Xxxxxxx Xxxxx, Xxxxxx 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.
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j. "Seller" means TRENDWEST RESORTS, INC. located at 0000 Xxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
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 the Buyers and
Buyers 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 at 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 at 10:00 a.m. (local time) on April 1, 1993 (or such other
place, date and time as shall be agreed upon by Buyers 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 April
1, 1993 (the "Effective Time").
4. PURCHASE PRICE.
4.1 Price. As the purchase price for the Acquired Purchase Contracts,
Buyers shall pay to Seller the total sum of Nine Hundred Eighty Six Thousand
Four Hundred Eighty Two and 35/100ths Dollars ($986,482.35) (hereinafter
referred to as "Purchase Price"), payable, at Closing, in immediately available
funds of the United States by wire transfer.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and
represents to Buyers as follows:
5.1 Standing and Authority of Sellers. Trendwest Resorts, Inc. is a
corporation, duly organized and validly existing in good standing under the laws
of the State of Washington and possesses all requisite corporate 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.
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5.3 Compliance with Instruments. Seller is not in 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 has 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 Buyers 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 the
Buyers 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 Buyers. The Buyers shall have
performed and complied with all agreements and conditions required to be
performed or complied with by Buyers 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. The Buyers shall have obtained or effected
all consents, approvals, waivers, notices and filings required in connection
with the execution and delivery by Buyers of this Agreement or consummation by
Buyers of the transactions
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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.
6.4 Escrow Service Agreement. The Buyers, Seller, and the escrow agent
shall sign and deliver the Service Escrow Agreement in the form attached hereto
as Exhibit D and E.
7. CONDITIONS TO THE BUYERS' OBLIGATION TO CLOSE. The obligation of the
Buyers to purchase the Acquired Purchase Contracts from Seller pursuant hereto
is subject to the satisfaction (unless waived in writing by the Buyers) 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 Buyers of: (a) a duly executed Xxxx
of Sale transferring to Buyers all of the Acquired Purchase Contracts free of
all liens and encumbrances; (b) a duly executed Assignment and Assumption
Agreement transferring the Acquired Purchase Contracts; (c) a certified copy of
resolutions of the Board of Directors of Seller authorizing it to enter into and
perform this Agreement.
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.
7.4 Escrow Agreement. The Buyers, Seller, and the escrow agent shall
sign and deliver the Service Escrow Agreement in the form attached hereto as
Exhibit D and E.
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
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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 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 the Buyers 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: TRENDWEST RESORTS, INC.
0000 Xxxx Xxxxxxxxxx, Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
To Buyers: Attn: Xxxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxx 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 transactions.
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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.
BUYERS: SELLER:
TRENDWEST RESORTS, INC.
______________________________ By:___________________________
Xxxxxxx X. Xxxxx Its:__________________________
______________________________
Xxxxxxxx X. Xxxxx
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ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, (i) TRENDWEST RESORTS, INC., a Washington
corporation and (referred to herein as "Assignor"), assign, transfer and set
over to Xxxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx (collectively referred to as
"Assignees"), all of Assignor's right, title and interest as of the Effective
Time in the Acquired Purchase Contracts described in that certain Purchase
Agreement dated as of April 1, 1993 between Assignor and Assignees
("Agreement"), and listed in the attached Schedule; and (ii) the Assignees
hereby assume and agree to perform all obligations of Assignor under said
contracts, which arise or mature after the Effective Time.
This Assignment and Assumption Agreement is executed pursuant to the
Agreement, which contains warranties, rights and limitations with respect to the
obligations assigned and assumed hereunder and which Agreement is incorporated
herein by this reference. All capitalized terms in this instrument shall have
the meanings set forth in the Agreement, unless separately defined herein.
DATED this 1st day of April, 1993.
ASSIGNEES: ASSIGNOR:
TRENDWEST RESORTS, INC.
______________________________ By:___________________________
Xxxxxxx X. Xxxxx Its:__________________________
______________________________
Xxxxxxxx X. Xxxxx
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XXXX OF SALE
FOR VALUE RECEIVED, TRENDWEST RESORTS, INC., a Washington corporation
(referred to herein as "Seller") sell, assign and transfer to Xxxxxxx X. Xxxxx
and Xxxxxxxx X. Xxxxx (collectively referred to as "Buyers"), all of Seller's
right, title and interest in the Acquired Purchase Contracts as of the Effective
Time. The property being conveyed pursuant to this Xxxx of Sale is listed on
Appendix "A", attached hereto.
This Xxxx of Sale is given pursuant to that certain Purchase Agreement
dated as of April 1, 1993, between Seller and Buyers ("Agreement"), which is
incorporated herein by reference and which contains certain warranties and
disclaimers applicable for this instrument. All capitalized terms in this Xxxx
of Sale shall have the meanings specified in the Agreement.
DATED this 1st day of April, 1993.
TRENDWEST RESORTS, INC.
By:_______________________
Its:______________________
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