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EXHIBIT 10.20
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is made this
15th day of March, 1993, by and between TRENDWEST RESORTS, INC. (hereinafter
referred to as "Seller") and JELD-WEN, inc. (hereinafter referred to as
"Buyer"), 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 the JELD-WEN, inc., an Oregon corporation, 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.
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 CONTRACTS. Subject to the terms
and conditions and in reliance upon the
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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 at 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 at 10:00 a.m. (local time) on March 15, 1993 (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 March
15, 1993 (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 One Million Seven Hundred Fifty Thousand
and No/100ths Dollars ($1,750,000.00) (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 Buyer as follows:
5.1 Standing and Authority of Seller. Seller 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.
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)
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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.
6.4 Escrow Service Agreement. Buyer, Seller, and the escrow agent shall sign
and deliver the Service Escrow Agreement in the form attached hereto as Exhibit
D.
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
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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; (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. Buyer, Seller, and the escrow agent shall sign and
deliver the Service Escrow Agreement in the form attached hereto as Exhibit D.
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 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.
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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: TRENDWEST RESORTS, INC.
0000 Xxxx Xxxxxxxxxx, Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
To Buyer: JELD-WEN, inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
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.
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.
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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:
JELD-WEN, inc. TRENDWEST RESORTS, INC.
By: __________________________ By: __________________________
Xxxxxxx X. Xxxxxxxxxx Its: __________________________
Secretary
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ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, (i) TRENDWEST RESORTS, INC., a Washington
corporation ("Assignor"), assigns, transfers and sets over to JELD-WEN, 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 March 15, 1993 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 15th day of March, 1993.
JELD-WEN, inc. TRENDWEST RESORTS, INC.
By: __________________________ By: __________________________
Xxxxxxx X. Xxxxxxxxxx Its: __________________________
Secretary
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XXXX OF SALE
FOR VALUE RECEIVED, TRENDWEST RESORTS, INC., a Washington corporation
("Seller") sells, assigns and transfers to JELD-WEN, 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 March 15, 1993, 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 15th day of March, 1993.
TRENDWEST RESORTS, INC.
By: __________________________
Its: __________________________
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Assignment Agreement
As part of its annual contribution to the JELD-WEN FOUNDATION, JELD-WEN, inc.,
an Oregon corporation ("Assignor"), assigns, transfers, and sets over to the
JELD-WEN FOUNDATION ("Assignee"), all of Assignor's right, title and interest as
of March 15, 1993, in the Acquired Purchase Contracts, as well as any
warranties, rights and limitations with respect to such obligations, described
in that certain Purchase Agreement dated March 15, 1993, between Assignor and
Trendwest Resorts, Inc., a Washington corporation, and listed in the attached
schedule. All capitalized terms in this instrument shall have the meanings set
forth in the Purchase Agreement described hereinabove, unless separately defined
herein.
Dated this 15th day of March, 1993.
ASSIGNOR:
JELD-WEN, inc.
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By: Xxxxxxx X. Xxxxxxxxxx
Secretary
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