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EXHIBIT 10.13
EXECUTION COPY
EAGLE CREST PARTNERS, LTD.,
as Originator
and
TW HOLDINGS, INC.,
as Buyer
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 1, 1993
2
TABLE OF CONTENTS
Pages
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitional Provisions................................................. 1
Section 1.02. Certain Other Definitional Provisions................................... 2
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Mortgage Loan Receivables................................. 2
Section 2.02. Representations and Warranties as to the
Originator..................................................... 5
Section 2.03. Representations and Warranties as to the
Mortgage Loan Receivables: Repurchase Upon
Breach......................................................... 8
Section 2.04. Affirmative Covenants of the Originator................................. 8
Section 2.05. Negative Covenants of the Originator.................................... 11
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price............................................... 12
ARTICLE FOUR
TERMINATION
Section 4.01. Termination............................................................. 12
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment............................................................... 12
Section 5.02. Protection of Right, Title and Interest to
Mortgage Loan Receivables...................................... 13
Section 5.03. Governing Law........................................................... 13
Section 5.04. Notices................................................................. 14
Section 5.05. Severability of Provisions.............................................. 14
Section 5.06. Assignment.............................................................. 14
Section 5.07. Further Assurances...................................................... 14
Section 5.08. No waiver; Cumulative Remedies.......................................... 14
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Section 5.09. Counterparts............................................... 14
Section 5.10. Third-Party Beneficiaries.................................. 15
Section 5.11. Merger and Integration..................................... 15
Section 5.12. Headings................................................... 15
Section 5.13. Originator Indemnification................................. 15
Section 5.14. Assumption of the Obligations of the
Originator........................................ 15
Schedule A Schedule of Mortgage Loan Receivables...................... SA-1
Exhibit A Form of UCC-1..................................... ▇-▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AGREEMENT, dated as of December 1, 1993, between
Eagle Crest Partners, Ltd., an Oregon limited partnership, as seller ("Eagle
Crest" or the "Originator"), and TW HOLDINGS, INC., a Nevada corporation, as
purchaser (the "Buyer").
RECITALS
WHEREAS, the Buyer is in the business of purchasing from time to time,
among other things, certain mortgage loan timeshare receivables (the "Mortgage
Loan Receivables") originated by the Originator;
WHEREAS, pursuant to a receivables transfer agreement, dated as of the
date of this Agreement (the "Transfer Agreement"), among TW HOLDINGS, INC, as
seller (the "Seller"), the purchasers named therein (the "Purchasers"),
Seattle-First National Bank, as agent (the "Agent"), and JELD-WEN, inc., as
master servicer (the "Master Servicer"), the Purchasers will purchase from time
to time certain Receivables from the Seller which mortgage loan receivables (the
"Mortgage Loan Receivables") the Seller shall purchase from time to time from
the Originator and which right to use timeshare receivables (the "Right to Use
Receivables" and, together with the Mortgage Loan Receivables, the
"Receivables") the Seller shall purchase from time to time from Trendwest
Resorts, Inc. ("TRI" and, together with Eagle Crest, the "Originators"); and
WHEREAS, in connection with the transaction contemplated by the
Transfer Agreement, Eagle Crest will sell, transfer and assign Mortgage Loan
Receivables to the Buyer from time to time and the Buyer will, among other
things, grant a first priority perfected security interest in such Mortgage Loan
Receivables to the Agent for the benefit of the Purchasers.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Transfer Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section , subsection and
Schedule references contained in this Agreement are references to Sections ,
subsections and Schedules in or to this Agreement unless otherwise specified;
with
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respect to all terms in this Agreement, the singular includes the plural and the
plural includes the singular; words importing gender include the other gender;
references to "writing" include printing, typing, lithography and other means of
reproducing words in visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the term "including" means "including without
limitation."
Section 1.02. Certain Other Definitional Provisions. Whenever used in
this Agreement, the following words and phrases shall have the following
meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Buyer" means TW HOLDINGS, INC., in its capacity as purchaser of the
Mortgage Loan Receivables under this Agreement, and any successor thereto.
"Eagle Crest" shall mean Eagle Crest Partners, Ltd. and any successors
thereto.
"Initial Mortgage Loan Receivables" means the Mortgage Loan Receivables
comprising part of the Receivables Pool as of the Closing Date.
"Schedule of Mortgage Loan Receivables" means the Schedule of Mortgage
Loan Receivables attached as Schedule A hereto and as an Exhibit to the Transfer
Agreement, as it may be amended from time to time.
"Transfer Agreement" means the Receivables Transfer Agreement dated as
of December 1, 1993, among TW HOLDINGS, INC., Seattle-First National Bank, as
Purchaser, Seattle-First National Bank, as Agent, and JELD-WEN, inc., as Master
Servicer.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Mortgage Loan Receivables.
(a) In the case of the Initial Receivables that are Mortgage Loan
Receivables, on the Closing Date the Originator does hereby sell, transfer and
assign to the Buyer, without recourse (subject to its obligations hereunder):
(i) all right, title and interest of the Originator in
and to the Initial Receivables that are Mortgage Loan Receivables,
all Related Security with respect to such Mortgage Loan
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Receivables, all related Receivable Documents and all collections on or in
respect of such Mortgage Loan Receivables and paid thereon or in respect thereof
(including proceeds of the repurchase of Initial Receivables that are Mortgage
Loan Receivables by the Originator pursuant to Section 2.03(b)) on or after the
Initial Cutoff Date;
(ii) the interest of the Originator in the security
interests in and liens on such Mortgage Loan Receivables and any accessions
thereto granted by the Obligors pursuant to such Mortgage Loan Receivable;
(iii) the interest of the Originator in any proceeds of any
physical damage and title insurance policies covering such Mortgage Loan
Receivables and in any proceeds of any credit life or credit disability
insurance policies relating to such Mortgage Loan Receivables or the related
Obligors;
(iv) the right to realize upon any property (including the
right to receive future Liquidation Proceeds) that shall have secured any such
Mortgage Loan Receivables; and
(v) all proceeds of the foregoing.
(b) In the case of the Subsequent Receivables that are Mortgage Loan
Receivables, on the related Transfer Dates occurring from time to time prior to
the Commitment Termination Date, the Originator will transfer and assign to the
Buyer, without recourse (subject to its obligations hereunder):
(i) all right, title and interest of the Originator in
and to the related Subsequent Receivables that are Mortgage Loan Receivables,
all Related Security with respect to such Mortgage Loan Receivables, all related
Receivable Documents and all collections on or in respect of such Mortgage Loan
Receivables and paid thereon or in respect thereof (including proceeds of the
repurchase of such Subsequent Receivables that are Mortgage Loan Receivables by
the originator pursuant to Section 2.03(b)) on or after the related Subsequent
Cutoff Date;
(ii) the interest of the Originator in the security
interests in and liens on the related Mortgage Loan Receivables and any
accessions thereto granted by the Obligors pursuant to such Mortgage Loan
Receivables;
(iii) the interest of the Originator in any proceeds of any
physical damage and title insurance policies covering the related Mortgage Loan
Receivables and in any proceeds of any credit life or credit disability
insurance policies relating to such Mortgage Loan Receivables or the related
Obligors;
(iv) the right to realize upon any property (including the
right to receive future Liquidation Proceeds) that shall have secured any such
Mortgage Loan Receivables; and
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(v) all proceeds of the foregoing.
(c) In connection with each such conveyance, on or prior to the related
Transfer Date, as the case may be, the Originator agrees to record and file, at
its own expense, a financing statement with respect to the related Mortgage Loan
Receivables meeting the requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect the sale and assignment of
such Mortgage Loan Receivables to or upon the order of the Buyer, and the
proceeds thereof as may be perfected by filing a financing statement (and any
continuation statements as are required by applicable state law), and to deliver
a file-stamped copy of each such financing statement (or continuation statement)
or other evidence of such filings (which may, for purposes of this Section ,
consist of telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Buyer in due course), as soon as is
practicable after the Originator's receipt thereof.
In connection with each such conveyance, the Originator further agrees,
at its own expense, on or prior to the related Transfer Date, (i) to indicate in
its computer files that the related Mortgage Loan Receivables have been
transferred to the Buyer pursuant to this Agreement and (ii) to deliver to the
Buyer a computer file or microfiche list containing a true and complete list of
all such Mortgage Loan Receivables, and containing the information with respect
thereto required by the Schedule of Mortgage Loan Receivables and (iii) to
deliver to the Buyer and the Agent a Schedule of Mortgage Loan Receivables with
respect to such Mortgage Loan Receivables, which shall be added to all Schedules
of Mortgage Loan Receivables delivered to the Buyer and the Agent prior to such
Transfer Date and appears as Schedule A hereto.
(d) On each Transfer Date, the Originator shall deliver to or upon the
order of the Buyer, the documents relating to the related Mortgage Loan
Receivables called for pursuant to Section 2.05 of the Transfer Agreement. In
the case of the related Mortgages, Mortgage Notes and mortgage assignments, such
documents can be delivered to or upon the order of the Buyer in the form and
within the time periods specified by Section 2.05(b) of the Transfer Agreement.
(e) From time to time, the Originator can substitute a new Mortgage
Loan Receivable that is an Eligible Receivable for a Receivable that is either a
Defaulted Receiver or is otherwise no longer an Eligible Receivable, upon the
terms and conditions in Section 15.02 of the Transfer Agreement.
Section 2.02. Representations and Warranties as to the Originator. The
Originator hereby represents and warrants as of the date and execution of this
Agreement, the Closing Date and each Transfer Date that:
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(a) Organization and Good Standing. The Originator shall have been duly
organized under the laws of the State of Oregon and shall be validly existing as
a limited partnership whose status is active, with power and authority to own
its properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall now have, power, authority and legal right to acquire, own, sell and
service the Mortgage Loan Receivables.
(b) Due Qualification. The Originator shall be duly qualified to do
business as a foreign limited partnership in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require such
qualifications, except where the failure to so qualify or to have obtained such
licenses and approvals would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Originator.
(c) Power and Authority. The Originator shall have the power and
authority to execute, deliver and perform its obligations under this Agreement
and each other Facility Document to which it is a party or by which it is bound
and to carry out their respective terms; the Originator shall have full power
and authority to sell and assign the Mortgage Loan Receivables to be sold and
assigned to and deposited with the Buyer and shall have duly authorized such
sale and assignment to the Buyer by all necessary corporate action; and the
execution, delivery and performance of this Agreement and each other Facility
Document to which it is a party or by which it is bound shall have been duly
authorized by the Originator by all necessary corporate action.
(d) Valid Transfer and Assignment; Binding Obligations. This Agreement
shall evidence a valid transfer and assignment of the Mortgage Loan Receivables,
enforceable against creditors of and purchasers from the Originator; and shall
constitute a legal, valid and binding obligation of the Originator enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a proceeding in
equity or at law.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Facility Documents to which the originator is a
party or by which it is bound and the fulfillment of the terms of this Agreement
shall not conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a default under,
the partnership agreement of the Originator, or conflict with or violate any of
the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to
which the
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Originator is a party or by which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than the Lien created
by this Agreement, the Lien created by the Transfer Agreement and the Liens of
WorldMark); nor violate any law or, to the best of the Originators knowledge,
any order, rule or regulation applicable to it of any court or of any federal or
state regulatory body, administrative agency or other Governmental Authority
having jurisdiction over it or its properties; which breach, default, conflict,
lien or violation would have a material adverse effect on its condition,
financial or otherwise, or its earnings, business affairs or business prospects.
(f) No Proceedings. There are no proceedings or investigations pending,
or to the best of the Originator's knowledge, threatened, before any court,
regulatory body, administrative agency or other Governmental Authority having
jurisdiction over it or its properties: (i) asserting the invalidity of any
other Facility Document to which it is a party or by which it is bound, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
any Facility Document to which it is a party or by which it is bound, or (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Originator of its obligations under, or the validity or
enforceability of any Facility Document to which it is a party or by which it is
bound.
(g) Government Approvals. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Originator of any Facility
Document to which it is a party by which it is bound with the transactions
contemplated thereby except such as have been obtained prior to the date of this
Agreement and are in full force and effect (copies of which have been delivered
to the Buyer and the Agent).
(h) Licenses. The Originator holds, and at all times during the term of
this Agreement will hold, all material licenses, certificates, franchises and
permits from all Governmental Authorities necessary for the conduct of its
business and has received no notice of proceedings relating to the revocation of
any such license, certificate, franchise or permit, which singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect its ability to perform its obligations under any
Facility Agreement to which it is a party or by which it is bound or any other
documents or transactions contemplated hereunder or thereunder or the validity
or enforceability of the Mortgage Loan Receivables.
(i) Offices. The principal place of business and chief executive office
of Eagle Crest, is located at the address set forth in Section 5.04.
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(j) Taxes. The Originator has filed all tax returns and reports
required of it, has paid all Taxes which are due and payable and has provided
adequate reserves for payment of any Tax whose payment is being contested; all
charges, accruals and reserves on its books in respect of Taxes for all fiscal
periods to date are accurate; and there are no material questions or disputes
between the Originator and any Governmental Authority with respect to any Taxes.
(k) Compliance with Applicable Laws. The Originator is in material
compliance with the requirements of all applicable laws, rules, regulations and
orders of all Governmental Authorities.
(1) Ownership of Partnership Interests. The ownership interests in the
Originator are as follows: (i) E.C.G.P., Inc., which is owned by Trendwest,
Inc., a 100% owned subsidiary of JELD-WEN, is a general partner holding a 14.2%
partnership interest in the Originator, (ii) JELD-WEN is a limited partner
holding a 65.1% partnership interest in the Originator and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ hold in the aggregate a 20.7%
partnership interest in the Originator.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the related Mortgage Loan Receivables to
the Buyer on the related Transfer Date and the transfer and assignment of such
Mortgage Loan Receivables by the Buyer to the Purchasers pursuant to the
Transfer Agreement. Each of the Originator and the Buyer shall inform the other
party promptly, in writing, upon the discovery of any breach of the foregoing
representations and warranties.
Section 2.03. Representations and Warranties as to the Mortgage Loan
Receivables: Repurchase Upon Breach.
(a) In connection with each transfer of Mortgage Loan Receivables to
the Buyer, as of the related Transfer Date, each such Mortgage Loan Receivable
satisfies each of the representations and warranties set forth in Sections 7.02
and 7.03 of the Transfer Agreement.
(b) The representations and warranties set forth in this Section shall
survive the transfer and assignment of the Mortgage Loan Receivables to the
Buyer and the transfer and assignment of such Mortgage Loan Receivables by the
Buyer to the Purchasers pursuant to the Transfer Agreement. Each of the
Originator and the Purchaser shall inform the other party promptly, in writing,
upon the discovery of any breach of the Originator's representations and
warranties pursuant to Section 2.03(a) which materially and adversely affects
any Mortgage Loan Receivable. Unless the breach shall have been cured in all
material respects by the 60th day following its discovery, the Originator will
repurchase such Mortgage Loan Receivable by remitting an amount equal to the
related Purchase Amount to or upon the order of the Buyer. Additionally, in the
event that, for whatever reason, the Seller
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fails to deliver to the Agent in respect of a Mortgage Loan Receivable either an
opinion of counsel pursuant to Section 2.05(a)(iv) of the Transfer Agreement or
a recorded assignment of mortgage with evidence of recording thereon in favor of
the Agent within 90 days after the related Transfer Agreement, the Originator
will repurchase such Mortgage Loan Receivable as described above. The sole
remedy of the Buyer with respect to a breach of the foregoing representations
and warranties which materially and adversely affects any Mortgage Loan
Receivable or failure to deliver such opinion of counsel or record such
assignment of mortgage shall be to require the Originator to repurchase the
related Mortgage Loan Receivable.
(c) In connection with the transfer of ownership of a Mortgaged
Property by the related Obligor, upon receipt of notice from the Buyer, the
Originator may, if the Master Servicer is required to enforce a due-on-sale
clause contained in the related Mortgage Note pursuant to applicable law and the
provisions of the Transfer Agreement, in its discretion, repurchase the related
Mortgage Loan Receivable by remitting an amount equal to the related Purchase
Amount to or upon the order of the Buyer.
(d) Upon the payment by the Originator of the Purchase price for any
Mortgage Loan Receivable repurchased pursuant to this Section , the Buyer shall
cause such instruments as may be necessary to assign and transfer, without
recourse or warranty of any kind, such Mortgage Loan Receivable and the Related
Security and Receivable Documents to the Originator.
Section 2.04. Affirmative Covenants of the Originator. The Originator
hereby covenants that from the date hereof until the first day following the
Commitment Termination Date on which (i) the Outstanding Principal Balance of
the Mortgage Loan Receivables comprising part of the Receivables Pool shall be
reduced to zero and (ii) all Obligations shall have been fully paid and
performed, the Originator shall do all of the following unless the Buyer or the
Agent (acting upon the direction of the Required Purchasers) shall otherwise
consent in writing:
(a) The Originator shall comply in all material respects with all
applicable laws, rules, regulations and orders, including but not limited to all
applicable laws, rules, regulations and orders with respect to the Mortgage Loan
Receivables and the Assigned Collateral relating thereto and will take all
actions necessary to ensure that all Taxes, pension obligations and other
governmental claims in respect of its operations, business and assets are
properly paid when due.
(b) The Originator shall preserve and maintain its partnership
existence, rights, franchises and privileges in the State of Oregon, and qualify
and remain qualified in good standing as a foreign partnership in each State
where such qualification is necessary or advisable in view of its operations,
business and assets.
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(c) From time to time during regular business hours and upon at least
three days' prior written notice, the Originator shall permit the Buyer, the
Agent, any Purchaser and their respective agents and representatives (i) to
examine and make copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in the possession or
under the control of the Originator and (ii) to visit the offices and properties
of the Originator for the purpose of examining such materials and to discuss
matters relating to the Mortgage Loan Receivables, the performance of the
Originator under any Facility Document to which it is a party or by which it is
bound and affairs, finances and accounts of the Originator generally with any of
its officers, directors or employees.
(d) The Originator shall comply in all material respects with the
Credit and Collection Policy in connection with the Mortgage Loan Receivables.
(e) Promptly after learning thereof, the Originator will notify the
Buyer and the Agent of (i) the details of any action, proceeding, investigation
or claim against or affecting it instituted before any court, arbitrator or
Governmental Authority or, to its knowledge threatened to be instituted, which,
if determined adversely would be likely to have a material adverse effect on (A)
the performance by it of any obligations under any Facility Document to which it
is a party or by which it is bound, (B) the validity or enforceability of any
Facility Document to which it is a party or by which it is bound, (C) the
validity or enforceability of any Mortgage Loan Receivable or the related
Mortgage Note or Mortgage or (D) the first priority interest of the Agent on
behalf of the Purchasers in the Assigned Collateral relating to the Mortgage
Loan Receivables; (ii) any material dispute between the Originator and any
Governmental Authority; (iii) any labor controversy which has resulted in or
threatens to result in a strike which would materially affect the business
operations of the Originator; and (iv) the occurrence of any Termination Event
relating to the Originator.
(f) From time to time the Originator will (i) pay or reimburse the
Buyer, the Agent and each Lender for all Taxes imposed on this Agreement and for
all expenses including legal fees incurred in connection with the enforcement by
judicial proceedings or otherwise of any of the rights of the foregoing parties
under this Agreement or under any other Facility Document to which the
Originator is a party or by which it is bound; (ii) pay or reimburse the Agent
for all expenses, including legal fees, incurred by or on behalf of the Buyer in
connection with the perfection of the Buyer's interest in the Assigned
Collateral relating to the Mortgage Loan Receivables; (iii) obtain and promptly
furnish to the Agent evidence of all such government approvals as may be
required to enable the Originator to comply with its obligations under any
Facility Document to which it is a party or by which it is bound; (iv) execute
and deliver all such instruments (including UCC continuation statements) and
perform all
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such other acts as may be necessary to maintain the Purchasers' interest
continuously perfected as a first priority interest in the Assigned Collateral
relating to the Mortgage Loan Receivables; (v) execute and deliver all such
other instruments and perform all such other acts as the Buyer, the Agent or any
Purchaser may reasonably request to carry out the transactions contemplated by
this Agreement and the other Facility Documents to which it is a party or by
which it is bound; and (f) comply in all material respects with the obligations
of the Originator under the Facility Documents.
(g) The Originator agrees to deliver in kind upon receipt to the Master
Servicer all Collections received by the Originator in respect of any Mortgage
Loan Receivable after the related Transfer Date as soon as practicable after
receipt thereof, but in any event no later than two Business Days following such
receipt.
(h) On the last Business Day of each month but in any event no later
than five days subsequent to the last Business Day of each month, the Originator
shall provide to the Buyer such information as is reasonably necessary for the
Buyer to determine the Consolidated Delinquency Date Amount, the Consolidated
Defaulted Receivable Amount and the Consolidated Monthly Charge-off Date.
Section 2.05. Negative Covenants of the Originator. From the date
hereof until the first day following the Commitment Termination Date on which
(i) the Outstanding Principal Balance of the Mortgage Loan Receivables
comprising part of the Receivables Pool shall be reduced to zero and (ii) all
Obligations shall have been fully paid and performed, the Originator shall
refrain from doing any of the following, unless the Buyer or the Agent (acting
upon the direction of the Required Purchasers) shall otherwise consent in
writing:
(a) Except for the conveyances hereunder, the Originator will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on any Mortgage Loan Receivable or any Related
Security or Receivable Document, whether now existing or hereafter created, or
any interest therein; the Originator will immediately notify the Buyer and the
Agent of the existence of any Lien on any Mortgage Loan Receivable or any
Related Security or Receivable Document and such Mortgage Loan Receivable will
be repurchased from the Buyer by the Originator in the manner and with the
effect specified in Section 2.03(b), and the Originator shall defend the right,
title and interest of the Buyer in, to and under the Mortgage Loan Receivables,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Originator; provided, however, that nothing in
this subsection shall prevent or be deemed to prohibit the Originator from
suffering to exist upon any of the Mortgage Loan Receivables or any Related
Security or Receivable Document, Liens for municipal or other local taxes if
such taxes shall not at the time be due and payable or if the Originator shall
currently be contesting the validity of such taxes in good faith by appropriate
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proceedings and shall have set aside on its books adequate reserves with respect
thereto.
(b) After the Transfer Date relating to a Mortgage Loan Receivable, the
Originator shall take no action, nor omit to take any action, which would impair
the rights of the Buyer in such Mortgage Loan Receivable.
(c) The Originator shall not, during the term of this Agreement,
transfer to the Buyer Mortgage Loan Receivables on forms substantially different
from the forms attached as Exhibits to the Transfer Agreement.
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price. In consideration of the sale
from the Originator to the Buyer, as provided in Section 2.01, of (a) the
Initial Receivables that are Mortgage Loan Receivables on the Closing Date, the
Buyer agrees to pay the Originator an amount equal to the Outstanding Principal
Balance of such Mortgage Loan Receivables as of the Initial Cutoff Date, plus
accrued interest to the date of purchase, and (b) the Subsequent Receivables
that are Mortgage Loan Receivables, on the related Transfer Dates, the Buyer
agrees to pay the Originator an amount equal to the Outstanding Principal
Balance of such Mortgage Loan Receivables as of the related Subsequent Cutoff
Date; plus accrued interest to the date of purchase.
ARTICLE FOUR
TERMINATION
Section 4.01. Termination. The respective obligations and
responsibilities of the Originator and the Buyer created hereby shall terminate,
except for indemnity obligations as provided herein, upon the termination of the
Transfer Agreement.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment.
(a) This Agreement may be amended from time to time in writing by the
Buyer and the Originator, with the consent of the Agent, which consent shall not
be unreasonably withheld, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein, or
to add any other provisions with respect to matters or questions arising under
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this Agreement which shall not be inconsistent with the provisions of this
Agreement or the Transfer Agreement; provided, however, that such action shall
not, as evidenced by an opinion of counsel delivered to the Buyer and the Agent,
adversely affect in any material respect the interests of the Buyer or the
Purchasers in any Mortgage Loan Receivables or Assigned Collateral related
thereto.
(b) This Agreement may also be amended from time to time in writing by
the Buyer and the Originator, with the consent of the Agent (acting upon the
direction of the Required Purchasers) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement.
Section 5.02. Protection of Right, Title and Interest to Mortgage Loan
Receivables.
(a) The Originator at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Buyer's right, title and interest
to the Mortgage Loan Receivables and other property conveyed by the Originator
to the Buyer hereunder to be promptly recorded, registered and filed, and to be
at all times kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Buyer hereunder to all of the Mortgage Loan Receivables and
such other property. The Originator shall deliver to the Buyer file-stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. The Buyer and the Agent shall cooperate fully with the Originator in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this Section .
(b) Within 30 days after the Originator makes any change in its name,
identity or partnership structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
applicable state, it shall give the Buyer and the Agent notice of any such
change and shall execute and file such financing statements or amendments as may
be necessary to continue the perfection of the Buyer's security interest in the
Mortgage Loan Receivables and the Assigned Collateral relating thereto.
(c) The Originator will give the Buyer and the Agent prompt written
notice of (i) any relocation of any office at which it keeps records concerning
the Mortgage Loan Receivables or of its principal executive office and (ii)
whether, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall
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execute and file such financing statements or amendments as may be necessary to
continue the perfection of the interest of the Buyer in the Mortgage Loan
Receivables and the Assigned Collateral relating thereto.
Section 5.03. Governing Law. This Agreement and the other facility
documents shall be governed by and construed in accordance with the internal
laws of the State of Washington, except to the extent that the perfection (and
the effect of perfection or nonperfection) of the interests of the lenders in
the receivables, loan documents, related security, assigned collateral, facility
documents and collections is governed by the laws of a jurisdiction other than
the state of Washington.
Section 5.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of the Buyer, to TW HOLDINGS, INC., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇.▇. ▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇; (b) in the case of Eagle Crest, to Eagle Crest Partners, Ltd., ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇; or (c) as to
either of such Persons, at such other address as shall be designated by such
Person in a written notice to the other Person.
Section 5.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 5.06. Assignment. This Agreement may not be assigned by the
Buyer or the Originator except as contemplated by this Section or the Transfer
Agreement; provided, however, that simultaneously with the execution and
delivery of this Agreement, the Buyer shall assign all of its right, title and
interest herein to the Agent for the benefit of the Purchasers as provided in
the Transfer Agreement, to which the Originator hereby expressly consents.
Section 5.07. Further Assurances. The Originator and the Buyer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements, amendments, continuation
statements or releases relating to the Mortgage Loan Receivables for filing
under the provisions of the UCC or other law of any applicable jurisdiction.
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Section 5.08. No waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Buyer or the Originator, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 5.09. 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 and the same instrument.
Section 5.10. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, for the benefit of the
Agent and the Purchasers, which shall be considered to be a third-party
beneficiary hereof. Except as otherwise provided in this Agreement, no other
person will have any right or obligation hereunder.
Section 5.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement, This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 5.12. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.13. Originator Indemnification. The Originator shall
indemnify and hold harmless the Buyer from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of activities of the Originator
pursuant to this Agreement or as a result of the transactions contemplated
hereby, including, but not limited to, any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Originator shall not indemnify the Buyer if such
acts, omissions or alleged acts or omissions constitute negligence or willful
misconduct by the Agent or any Purchaser.
Section 5.14. Assumption of the Obligations of the Originator. The
obligations of the Originator hereunder shall not be assignable nor shall any
Person succeed to the obligations of the Originator hereunder except in each
case in accordance with the provisions of Section 5.06.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
EAGLE CREST PARTNERS, LTD., as Originator
By: Eagle Crest G.P., Inc.,
its General Partner
By
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
TW HOLDINGS, INC., as Buyer
By:
------------------------------------
▇. ▇. ▇▇▇▇▇, President
ACCEPTED:
SEATTLE-FIRST NATIONAL BANK,
as Agent
By:
------------------------------
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EX. - 10.19
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Agreement") is
made this 13th day of March, 1992, by and between TRENDWEST RESORTS, INC.
(hereinafter referred to as "Seller") and JELD-WEN FOUNDATION (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. "▇▇▇▇ 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 FOUNDATION located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
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 ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
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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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. (local time) on March 13, 1992 (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
13, 1992 (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 Four Hundred Thousand and
No/100ths Dollars ($1,400,000.00) (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) 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
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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 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.
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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 ▇▇▇▇ 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 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.
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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.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇,, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Buyer: JELD-WEN FOUNDATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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.
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
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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 FOUNDATION TRENDWEST RESORTS, INC.
By: By:
------------------------------- -------------------------------
▇. ▇. ▇▇▇▇▇, Trustee Its:
-------------------------------
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