PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is made
this 22nd day of September, 1998, by and between Trendwest Resorts, Inc.
(hereinafter referred to as "Buyer") and R & R Vista, an Oregon partnership with
X. X. Xxxxx and X. X. Xxxxx the two partners (hereinafter referred to as
"Seller"), each of whom agrees:
1. DEFINED TERMS. As used in this Purchase Agreement, the following terms
shall have the respective meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
a. "Acquired Purchase Contracts" means the purchase contracts receivable of
Seller which are described and listed in Exhibit A hereto, free and clear of all
liens and encumbrances.
b. "Assignment and Assumption Agreement" means the agreement to be executed
by the Seller and Buyer at the Closing in the form of attached Exhibit B
covering transfer of the Seller's interest in the Acquired Purchase contracts.
c. "Xxxx of Sale" means the instrument to be executed by the Seller and
delivered to the Buyer at the Closing in the form of attached Exhibit C.
d. "Buyer" means Trendwest Resorts, Inc., located at 00000 XX 00xx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000.
e. "Closing" has the meaning specified in Section 3 hereof.
f. "Closing Date" has the meaning specified in Section 3 hereof.
g. "Effective Time" has the meaning specified in Section 3 hereof.
h. "Person" shall mean an individual, partnership, joint venture,
corporation, bank, trust, unincorporated organization and/or a government or any
department or agency thereof.
i. "Purchase Price" has the meaning specified in Section 4.1 hereof.
j. "Seller" means R & R Vista, an Oregon partnership with X. X. Xxxxx and
X. X. Xxxxx the two partners, located at 0000 Xxxxxxxxx Xx., Xxxxxxx Xxxxx,
Xxxxxx 00000.
2. AGREEMENT TO SELL AND PURCHASE THE ACQUIRED PURCHASE CONTRACTS. Subject
to the terms and conditions and in reliance upon the representations and
warranties contained in this Agreement, Seller shall sell to Buyer and Buyer
shall acquire from Seller the Acquired Purchase Contracts.
3. CLOSING; EFFECTIVE TIME. The sale and purchase of the Acquired Purchase
Contracts as contemplated by this Agreement (the "Closing") shall take place at
Seller's offices, located in Xxxxxxx Xxxxx, Xxxxxx at 10:00 a.m. (local time) on
September 22, 1998 (or such other place, date and time as shall be agreed upon
by Buyer and Seller). The date of the Closing is referred to in this Agreement
as the "Closing Date". When completed, the Closing shall be effective as of
12:01 a.m. (local time) on September 22, 1998 (the "Effective Time").
4. PURCHASE PRICE.
4.1 Price. As the purchase price for the Acquired Purchase Contracts, Buyer
shall pay to Seller the total sum of Seven Million One Hundred Thirty Eight
Thousand Two Hundred Sixty Eight and 80/100ths Dollars ($7,138,268.80)
(hereinafter referred to as "Purchase Price"), payable, at Closing, in
immediately available funds of the United States by wire transfer. The Purchase
Price includes both outstanding principal and accrued interest on the Acquired
Purchase Contracts.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and
represents to Buyer as follows:
5.1 Standing and Authority of Seller. Seller is a partnership duly
organized and validly existing in good standing under the laws of the State of
Oregon and possesses all requisite power and authority to enter into and perform
this Agreement. This Agreement is a valid and binding obligation of Seller, duly
enforceable in accordance with its terms.
5.2 Title and Condition of Acquired Assets. Seller has good, marketable and
indefeasible title to all of the Acquired Purchase Contracts at the Closing and
as of the Effective Time, free and clear of all mortgages, liens, charges,
claims, leases, restrictions and encumbrances whatsoever. There is no agreement
of any kind whereby any Person or Persons have any right to acquire or obtain
(by purchase, gift, merger, consolidation or otherwise) an interest in any of
the Acquired Purchase Contracts.
5.3 Compliance with Instruments. Seller is not in default under, or in
breach of any material term or provision of contract, lease, agreement or other
instrument to which the Acquired Purchase Contracts are bound. The execution,
delivery and performance of this Agreement by Seller does not and will not
conflict with or result in a breach of or a default under, or give rise to any
right of termination, cancellation or acceleration with respect to, any of the
terms, conditions or provisions of any (as so defined) indenture, contract,
agreement, license, lease or other instrument to which the Acquired Purchase
Contracts are bound.
5.4 Authorization by Seller. The execution, delivery and performance of
this Agreement by Seller have been duly and validly authorized by all necessary
action on the part of Seller and this Agreement is a valid, binding and
enforceable obligation of Seller except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting or limiting the rights of creditors generally.
5.5 Brokers. No person acting on behalf of the Seller or under the
authority of Seller is or will be entitled to any broker's, finder's or similar
fee, directly or indirectly from the Buyer in connection with the asset purchase
contemplated in this Agreement.
5.6 Disclosure. To Seller's knowledge there are no other matters or
liabilities, contingent or otherwise, which materially adversely affects or has
a substantial likelihood in the future of materially adversely affecting the
Acquired Purchase Contracts.
6. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The obligation of the Seller
to transfer, assign, and deliver the Acquired Purchase Contracts to Buyer
pursuant to this Agreement is subject to the satisfaction (unless waived in
writing by Seller) of each of the following conditions at and as of the Closing.
6.1 Performance of Obligations by Buyer. Buyer shall have performed and
complied with all agreements and conditions required to be performed or complied
with by Buyer under this Agreement prior to or at the Closing.
6.2 Purchase Price. Seller shall have received, the Purchase Price as
described in Section 4.1 herein.
6.3 Consents and Notices. Buyer shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Buyer of this Agreement or consummation by Buyer
of the transactions contemplated thereby, and any notice or waiting period
relating thereto shall have expired with all requirements lawfully imposed
having been satisfied in all material respects.
7. CONDITIONS TO BUYER'S OBLIGATION TO CLOSE. The obligation of Buyer to
purchase the Acquired Purchase Contracts from Seller pursuant hereto is subject
to the satisfaction (unless waived in writing by Buyer) of each of the following
conditions at and as of the Closing:
7.1 Representations and Warranties Correct. The representations and
warranties of Seller contained in Section 5 hereof shall be true and correct in
all material respects on and as of the date of this Agreement and at and as of
the Closing as though made at and as of the Closing, except as affected by the
transactions contemplated by this Agreement.
7.2 Performance of Obligations by Seller. Seller shall have performed and
complied with all agreements and conditions required to be performed or complied
with by Seller under this Agreement prior to or at the Closing including without
limitation the delivery to Buyer of: (a) a duly executed Xxxx of Sale
transferring to Buyer all of the Acquired Purchase Contracts free of all liens
and encumbrances; and, (b) a duly executed Assignment and Assumption Agreement
transferring the Acquired Purchase Contracts.
7.3 Consents and Notices. Seller shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Seller of this Agreement or consummation by Seller
of the transactions contemplated hereby, and any notice or waiting period
relating thereto shall have expired with all requirements lawfully imposed
having been satisfied in all material respects.
8. FURTHER COOPERATION. After the Closing, each party, at the request of
the other and without additional consideration, shall execute and deliver or
cause to be executed and delivered from time to time such further instruments
and shall take such further action as the requesting party may reasonably
require in order to carry out more effectively the intent and purpose of this
Agreement.
9. AMENDMENTS AND WAIVERS. Any term or provision of this Agreement may be
waived without affecting any of the rights, conditions, or limitations relating
to the other terms and conditions of this Agreement at any time by an instrument
in writing signed by the party which is entitled to the benefits thereof and
this Agreement may be amended or supplemented at any time by an instrument in
writing signed by all parties hereto.
10. EXPENSES. Each party will be responsible for its own attorneys',
accounting and other professional fees incurred in connection with the purchase
contemplated in this Agreement.
11. PRORATIONS. The parties will prorate as of the Effective Time, all
interest and principle receivable and periodic charges which relate to the
Acquired Purchase Contracts.
12. ASSIGNMENT AND BINDING EFFECT. The Agreement shall be binding upon and
inure to the benefit of and be enforceable by each of the parties hereto and
their respective successors and assigns. Neither this Agreement nor any
obligation hereunder shall be assigned or assignable by Buyer or Seller without
the prior written consent of the other parties hereto.
13. NOTICES. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
shall be validly given, made or served if in writing or delivered personally or
sent by certified or registered mail, postage prepaid, addressed as follows:
To Seller: R & R Vista
0000 Xxxxxxxxx Xx.
Xxxxxxx Xxxxx, Xxxxxx 00000
Attn: X. X. Xxxxx
To Buyer: Trendwest Resorts, Inc.
00000 XX 00xx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as any party hereto may, from time to time, designate
in writing delivered in a like manner. Notice given by mail shall be deemed to
be given on the date which is two business days following the date the same is
postmarked.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes and is in full substitution for any and all prior agreements and
understandings between any of said parties relating to such transactions.
E-CREST/0-00XXX.XX Page 15. DESCRIPTIVE HEADINGS. The descriptive headings
of the several sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
18. ATTORNEY'S FEES. In the event legal action is taken to enforce this
Agreement or any provision thereof, or as a result of any breach of warranty or
representation or other default of either party, the prevailing party in such
action shall be entitled to receive its reasonable attorney's fees, in addition
to all other costs or charges allowed, which shall be fixed by the court or
courts in which the suit or action, including any appeal thereon, is tried,
heard or decided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER: SELLER:
Trendwest Resorts, Inc. R & R Vista
By: ____________________ By: ____________________
Its:____________________ X. X. Xxxxx
By: ____________________
X. X. Xxxxx
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, (i) R & R Vista, an Oregon partnership ("Assignor"),
assigns, transfers and sets over to Trendwest Resorts, Inc. ("Assignee"), 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
September 22, 1998, between Assignor and Assignee ("Agreement"), and listed in
the attached Schedule; and (ii) Assignee hereby assumes and agrees 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 22nd day of September, 1998.
Trendwest Resorts, Inc. R & R Vista
By: ____________________ By: ____________________
Its:____________________ X. X. Xxxxx
By: ____________________
X. X. Xxxxx
XXXX OF SALE
FOR VALUE RECEIVED, R & R Vista, an Oregon partnership ("Seller") sells,
assigns and transfers to Trendwest Resorts, Inc. ("Buyer"), 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 September 22, 1998, between Seller and Buyer ("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 22nd day of September, 1998.
R & R Vista
By: ____________________
X. X. Xxxxx
By: ____________________
X. X. Xxxxx
Exhibit B
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, (i) R & R Vista, an Oregon partnership ("Assignor"),
assigns, transfers and sets over to Trendwest Resorts, Inc. ("Assignee"), 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
September 22, 1998, between Assignor and Assignee ("Agreement"), and listed in
the attached Schedule; and (ii) Assignee hereby assumes and agrees 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 22nd day of September, 1998.
Trendwest Resorts, Inc. R & R Vista
By: ____________________ By: ____________________
Its:____________________ X. X. Xxxxx
By: ____________________
X. X. Xxxxx
Exhibit C
XXXX OF SALE
FOR VALUE RECEIVED, R & R Vista, an Oregon partnership ("Seller") sells,
assigns and transfers to Trendwest Resorts, Inc. ("Buyer"), 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 September 22, 1998, between Seller and Buyer ("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 22nd day of September, 1998.
R & R Vista
By: ____________________
X. X. Xxxxx
By: ____________________
X. X. Xxxxx
