1
Exhibit 10.17
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is
made this 30th day of December, 1992, by and between TRENDWEST RESORTS, INC. and
EAGLE CREST PARTNERSHIP LTD. (hereinafter collectively referred to as "Sellers")
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 Sellers 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 Sellers and Buyers at the Closing in the form of attached
Exhibit B covering transfer of the Sellers' interest in the Acquired Purchase
contracts.
c. "Xxxx of Sale" means the instrument to be executed by the Sellers
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.
j. "Sellers" means TRENDWEST RESORTS, INC. and located at 0000 Xxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 and EAGLE CREST
PARTNERSHIP, LTD. with the general partners located at 000 Xxxx Xx., Xxxxxxx
Xxxxx, Xxxxxx 00000.
-1-
2
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, Sellers shall sell to the Buyers and
Buyers shall acquire from Sellers 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
Sellers' offices, located at 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 at 10:00 a.m. (local time) on December 30, 1992 (or such other
place, date and time as shall be agreed upon by Buyers and Sellers). The date of
the Closing is referred to in this Agreement an the "Closing Date". When
completed, the Closing shall be effective as of 12:01 a.m. (local time) on
December 30, 1992 (the "Effective Time").
4. PURCHASE PRICE.
4.1 Price. As the purchase price for the Acquired Purchase Contracts,
Buyers shall pay to Sellers the total sum of Fourteen Million Thirteen Thousand
Five Hundred Seventeen and 65/100ths Dollars ($14,013,517.65) (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 SELLERS. Sellers hereby warrant and
represent 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. Eagle Crest Partnership,
Ltd. is a limited 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 Sellers, duly enforceable in accordance with its
terms.
5.2 Title and Condition of Acquired Assets. Sellers have 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. Sellers are 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 Sellers does not and
will
-2-
3
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 Sellers. The execution, delivery and performance
of this Agreement by Sellers have been duly and validly authorized by all
necessary action on the part of Sellers and this Agreement is a valid, binding
and enforceable obligation of Sellers 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 Sellers or under the
authority of Sellers are 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 Sellers' 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 SELLERS' OBLIGATION TO CLOSE. The obligation of the
Sellers 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 Sellers) 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. Sellers 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 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, Sellers, and the escrow agent
shall sign and deliver the Service Escrow Agreement in the form attached hereto
as Exhibit D and E.
-3-
4
7. CONDITIONS TO THE BUYERS' OBLIGATION TO CLOSE. The obligation of the
Buyers to purchase the Acquired Purchase Contracts from Sellers 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 Sellers 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 Sellers. Sellers shall have performed
and complied with all agreements and conditions required to be performed or
complied with by Sellers 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 Sellers authorizing it to enter into
and perform this Agreement.
7.3 Consents and Notices. Sellers shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Sellers 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, Sellers, 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 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.
-4-
5
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 Sellers
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 Sellers: TRENDWEST RESORTS, INC.
0000 Xxxx Xxxxxxxxxx, Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
EAGLE CREST PARTNERSHIP, LTD.
000 Xxxx Xx.
Xxxxxxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx Xxxxxx
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.
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.
-5-
6
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: SELLERS:
TRENDWEST RESORTS, INC.
____________________________ By:________________________________
Xxxxxxx X. Xxxxx Its:_______________________________
____________________________ EAGLE CREST PARTNERSHIP, LTD.
Xxxxxxxx X. Xxxxx
By:________________________________
Its:_______________________________
-6-
