EXHIBIT 10.31
WORLDMARK MARKETING AGREEMENT
(Eagle Crest, Inc. and Running Y Resort, Inc.)
THIS WORLDMARK MARKETING AGREEMENT ("Agreement") is made and entered
into as of this 4th day of May, 2001, by and among TRENDWEST RESORTS, INC., an
Oregon corporation ("Trendwest"), EAGLE CREST, INC., an Oregon corporation
("Eagle Crest"), and RUNNING Y RESORT, INC., an Oregon corporation ("Running
Y"). Eagle Crest and Running Y are collectively referred to as "Licensees."
Trendwest and Licensees may be collectively referred to as the "Parties" or
individually as the "Party."
RECITALS
A. Trendwest is the developer of WorldMark, The Club ("WorldMark") and
is engaged in the sale of WorldMark Vacation Club Credits to members of the
public who, upon purchasing WorldMark vacation club credits, become members of
WorldMark, giving them the ability to use the WorldMark vacation club credits to
stay at WorldMark vacation club resort facilities.
B. Eagle Crest is the developer of the Eagle Crest Resort near Redmond,
Oregon, and Running Y is the developer of the Running Y Ranch Resort near
Klamath Falls, Oregon.
C. Eagle Crest and Running Y wish to obtain the exclusive right and
license to sell WorldMark vacation club credits at their respective resorts.
Trendwest is willing to grant such exclusive rights and licenses upon certain
terms and conditions as contained in this Agreement.
NOW, THEREFORE, in consideration of the recitals, mutual covenants,
considerations and conditions contained in this Agreement and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS. In addition to any words or phrases defined elsewhere
in this Agreement, the following words and phrases shall have the following
definitions:
1.1 Eagle Crest means Eagle Crest, Inc., an Oregon corporation, and its
subsidiaries.
1.2 Eagle Crest Resort means the Eagle Crest Resort located in
Deschutes County, Oregon, near Redmond, Oregon.
1.3 ECVC Agreement means a duly executed Eagle Crest Vacation Ownership
Agreement.
1.4 Licensees means Eagle Crest and Running Y.
1.5 Licensing Fee means the fee referred to in Section 2.5 below.
1.6 Market Value of WorldMark Credits means the retail price that
Trendwest sells WorldMark Credits to new WorldMark Members (exclusive of the
price offered for Upgrade Contracts) on the date for which accounting or other
calculations requiring the Market Value of WorldMark Credits are made.
1.7 Merger Agreement means that certain Merger and Acquisition
Agreement dated May 4, 2001 among Licensees, Eagle Crest Vacation Club,
Trendwest and WorldMark.
1.8 Owner Referrals means referrals from WorldMark Members.
1.9 Parties means Trendwest, Eagle Crest and Running Y.
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1.10 Product Cost means that percentage of the average direct cost
allocated by Trendwest for resort development for the three (3) month calendar
quarter ending prior to the date for which accounting or other calculations
requiring the Product Cost are made. Where specifically designated in this
Agreement, Product Cost will include an allowance for developer dues and
overhead.
1.11 Running Y means Running Y Resort, Inc., an Oregon corporation.
1.12 Running Y Ranch Resort means the Running Y Ranch Resort located in
Klamath County, Oregon, near Klamath Falls, Oregon.
1.13 Sellable WorldMark Credits means those WorldMark Credits allocated
to Licensees under the Merger Agreement which shall be sold by Licensees under
this Agreement without deduction for Product Cost as provided in Section 2.7
below.
1.14 Trendwest means Trendwest Resorts, Inc., an Oregon corporation.
1.15 Upgrade Contract means a WorldMark Contract or ECVC Agreement in
which additional WorldMark Credits are sold to a WorldMark Member.
1.16 WorldMark means WorldMark, The Club, a California nonprofit mutual
benefit corporation.
1.17 WorldMark Contract means a duly executed WorldMark Vacation Owner
Agreement.
1.18 WorldMark Credits means WorldMark vacation club credits in the
WorldMark timeshare vacation club program.
1.19 WorldMark Member means any person who has a signed WorldMark
Contract. On or after the date the ECVC Real Properties are conveyed to
WorldMark and approved for registration by the Washington State timeshare
regulator, the term "WorldMark Member" shall also include ECVC Members.
2. MARKETING AND SALES RIGHTS AND OBLIGATIONS.
2.1 Marketing and Sales Rights. Upon execution of this Agreement by all
Parties, Trendwest grants to Eagle Crest and Running Y the exclusive right and
license to sell WorldMark Contracts at the Eagle Crest Resort and the Running Y
Ranch Resort, respectively, subject to the terms and conditions provided in this
Agreement. Trendwest shall not market or sell WorldMark Contracts at Eagle Crest
Resort and Running Y Ranch Resort, but shall retain all other rights to market
and sell WorldMark Contracts at all other locations. Licensees shall also have
the exclusive right to all Owner Referrals as provided elsewhere in this
Agreement.
2.2 Marketing Prohibition. In selling WorldMark Contracts, Licensees
are expressly prohibited from conducting any marketing activities using the
names, logos, servicemarks or trademarks of Trendwest or WorldMark without
Trendwest's prior written approval. Trendwest is expressly prohibited from
conducting any marketing activities using the names, logos, servicemarks or
trademarks of Licensees, Eagle Crest Resort or Running Y Ranch Resort without
the respective Licensee's prior written approval. Notwithstanding said
prohibition against Trendwest, it is understood and agreed that Trendwest may
use the names, logos, servicemarks or trademarks of Licensees in its public
disclosure documents (a.k.a. Public Reports, Public Offering Statements, etc.)
and collateral sales materials; provided the primary intent of the usage is not
to compete with Licensees within the State of Oregon.
2.3 Independent Contractor. Licensees shall conduct all sales
activities as independent contractors and shall use their own registered real
estate brokers licensees.
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2.4 Sales Costs. Licensees shall be responsible for all costs relating
to selling WorldMark Contracts including, without limitation, sales costs,
commissions, office expenses, escrow charges and taxes, but excluding those
items described in Section 2.5.
2.5 Licensing Fee. Licensees shall pay Trendwest a Licensing Fee in the
amount of $350 for each new WorldMark Contract sold, regardless of payment
terms. In consideration of the Licensing Fee Trendwest will provide the exchange
membership enrollment fees for buyers, set the buyers up in Trendwest's and
WorldMark's systems, and provide buyer take-home materials and all collateral
materials. Trendwest may increase the Licensing Fee with sixty (60) days prior
written notice and, if requested by Eagle Crest, documentation relating to
increases in the cost of such services in order to support the increase in the
Licensing Fee.
2.6 Payment for Procuring New WorldMark Contracts. Trendwest will pay
Licensees the amount set forth in Section 2.7 for each new WorldMark Contract
that meets the following conditions:
(a) Contract Executed and Delivered. A duly executed WorldMark Contract
has been delivered to Trendwest; and
(b) Full Downpayment Collected. A minimum ten percent (10%) downpayment
has been collected; and
(c) Rescission Period Lapsed. The applicable state and federal
rescission periods have passed since both the WorldMark Contract and the receipt
for the Oregon Public Report were signed; and
(d) Check Cleared. The downpayment, if collected by bank check, has
cleared the bank; and
(e) Contract Terms and Conditions. The WorldMark Contract conforms to
the WorldMark vacation club credit price, interest rate, due date, and other
terms and conditions as determined by Trendwest from time to time.
2.7 Payment Amount. For each WorldMark Contract sold by a Licensee and
meeting the requirements above, the Licensee may retain the buyer's downpayment
and Trendwest will pay Licensee the principal balance of the WorldMark Contract
less (i) the Licensing Fee, and (ii) the Product Cost (including an allowance
for developer dues and overhead). In the case of a cash sale or if the deferred
balance is less than the Licensing Fee and Product Cost, Licensee shall pay to
Trendwest that portion of the Licensing Fee and Product Cost not deducted by
Trendwest. Payments will be paid as provided in Section 11 of this Agreement.
Notwithstanding the foregoing, the Product Cost will not be deducted with
respect to the sale of Sellable WorldMark Credits.
3. UPGRADE CONTRACTS. The selling of all Upgrade Contracts, regardless
of whether the upgrade is of a WorldMark Contract or an ECVC Agreement, shall be
subject to the following terms and conditions:
3.1 Management. The marketing and sales of Upgrade Contracts will be
conducted exclusively by Trendwest.
3.2 Payment Amount. Where an Upgrade Contract is sold to: (i) a
WorldMark Member who purchased their WorldMark Contract through either of the
Licensees pursuant to this Agreement or any prior arrangement between Trendwest
and Licensees, or (ii) where the contract being upgraded is an ECVC Agreement,
Trendwest will pay to the Licensee forty percent (40%) of the purchase price of
the Upgrade Contract.
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3.3 Commissions. Licensees shall be responsible for payment of any and
all sales commissions due their sales staff who sold the underlying WorldMark
Contract or ECVC Agreement that was upgraded. Trendwest shall be responsible for
any commission payable to its sales staff.
3.4 Contract Servicing. Upgrade Contracts will be serviced by
Trendwest.
3.5 Upgrades of ECVC Agreements. ECVC Agreements will be upgraded and
replaced through novation by having the ECVC Member sign a new WorldMark
Contract, or a new WorldMark Contract and Upgrade Addendum, at the election of
Trendwest, for the number of Vacation Credits represented by the underlying ECVC
Agreement and the Upgrade Contract.
3.6 Weekly Reports. Trendwest shall provide Licensees with weekly
reports on the sales of Upgrade Contracts to which Section 3.2 will be
applicable. Such reports shall include the names, owner numbers and number of
additional credits purchased.
4. WORLDMARK ESCROW PROCEDURES IN OREGON.
4.1 Sales Involving Trendwest. The sale of a WorldMark Contract by
Trendwest will be escrowed through Timeshare Escrow, Inc. or such other Oregon
licensed escrow company as Trendwest directs.
4.2 Sales Involving Licensees. The sale of a WorldMark Contract by
Licensees will be escrowed through Resort Resources, Inc. or such other licensed
Oregon escrow company as Licensees direct.
5. CONTRACT SERVICING. Trendwest and Licensees hereby agree that
Trendwest will manage and service all WorldMark Contracts sold by Licensees, all
Upgrade Contracts, and all ECVC Agreements. It is understood and agreed that
Trendwest may employ the services of Concord or another third party vendor to
service the ECVC Agreements for such period as Trendwest deems appropriate.
6. DEFAULTS; FORECLOSURE. A WorldMark Contract is deemed to be in
default ("Defaulted Contract") (i) if the first payment is not collected as
provided in the WorldMark Contract, or (ii) when either an installment payment
or association dues to WorldMark are more than one hundred eighty (180) days
delinquent.
6.1 Right to Foreclose. Trendwest shall have the right to foreclose
upon any Defaulted Contract.
6.2 Rights and Obligations with Regard to Defaulted Contracts. (a)
WorldMark Contracts. When a WorldMark Contract sold by a Licensee defaults, the
Licensee shall pay Trendwest the remaining Principal Balance under the WorldMark
Contract, including any Upgrade Contract, plus any delinquent association dues
and other outstanding WorldMark charges, less the Product Cost (not including an
allowance for developer dues and overhead).
(b) Reacquired Vacation Credits. Trendwest will retain and resell all
WorldMark Credits acquired through Defaulted Contracts.
7. OWNER REFERRALS. Upon execution of this Agreement by all Parties,
Licensees will have the exclusive right to solicit Owner Referrals with regard
to (i) past Eagle Crest Vacation Club Members; (ii) past WorldMark Members who
purchased their WorldMark Contract through Licensees; and (iii) future WorldMark
Members who purchase their WorldMark Contract through Licensees. Licensees to
comply with all applicable statutory and regulatory requirements concerning
Owner Referrals including, without limitation, the Oregon Real Estate Marketing
Organization ("REMO") act.
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8. OWNER EDUCATION. Licensees shall provide owner education services to
WorldMark Members who purchase a WorldMark Contract from Licensees ("Owner
Education").
8.1 Training. Trendwest will train, at no cost, Licensees' personnel in
Owner Education policies and procedures at mutually agreeable times and
locations.
8.2 Costs. Licensees shall pay for all costs incurred in providing
Owner Education services.
8.3 Referral to Trendwest Locations. If it is more convenient to the
WorldMark Member, Licensees may refer a WorldMark Member to a Trendwest location
for Owner Education at no cost to Licensees. Any Owner Referrals that are
generated from the WorldMark Member will be forwarded to Licensees for
Licensees' exclusive use.
9. DAY USE. Licensees may offer day use resort passes for use at the
Eagle Crest Resort and Running Y Ranch Resort ("Day Passes") to WorldMark
Members who purchase from Licensees. As a condition to offering Day Passes,
Licensees will disclose in writing to each WorldMark Member that the Day Pass:
(i) is not being offered by WorldMark; (ii) is not a WorldMark product or
program; (iii) cannot be used at any other WorldMark resort; and (iv) may be
terminated at any time without prior notice.
10. TERMINATION. This Agreement, including the Exclusive Rights granted
herein, may be terminated by Licensees or Trendwest with cause if the breach has
not been cured within thirty (30) days following written notice specifying the
alleged breach, or without cause upon two (2) years prior written notice to the
other party. Upon termination, Trendwest to purchase from Eagle Crest all
remaining Sellable WorldMark Credits based upon the following formula:
The number of Sellable x Product Cost x Market Value of WorldMark Credits
WorldMark Credits
11. PAYMENTS. Unless specifically provided for otherwise, all payments
or amounts owing by one Party to another Party pursuant to this Agreement shall
be settled within 15 days following the end of the calendar month in which the
payment is due.
12. INDEMNIFICATION.
12.1 Indemnification by Licensees. Each Licensee covenants and agrees
to defend, indemnify and hold harmless Trendwest and WorldMark, and their
respective officers, directors, members, employees, agents, advisers,
representatives, subsidiaries and affiliates (collectively, "Trendwest
Indemnitees") from and against and to pay or reimburse Trendwest Indemnitees
for, any and all claims, liabilities, obligations, losses, fines, costs,
royalties, proceedings, deficiencies or damages (whether absolute, accrued,
conditional or otherwise and whether or not resulting from third party claims),
including out-of-pocket expenses and reasonable attorneys, consultants' and
accountants' fees incurred in the investigation or defense of any of the same or
in asserting any of their respective rights hereunder (collectively, "Losses"),
resulting from or arising out of (i) sales and marketing activities conducted by
such Licensee, (ii) timeshare or real estate brokerage activities conducted by
such Licensee; or (iii) Licensees' breach of this Agreement.
12.2 Indemnification by Trendwest. Trendwest, on its own
behalf and on behalf of WorldMark, covenants and agrees to defend, indemnify and
hold harmless Licensees and their officers, directors, members, employees,
agents, advisors, representatives, subsidiaries and affiliates (collectively,
"Licensee Indemnitees") from and against and to pay or reimburse Licensee
Indemnitees for any and all Losses resulting from or arising out of: (i)
activities undertaken by Licensees in accordance with Trendwest's prior written
approval, or in accordance with Trendwest's policies and procedures, or using
Trendwest approved materials; or (ii) Trendwest's or WorldMark's breach of this
Agreement.
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12.3 Indemnification Procedures.
(a) Notice of Claim. In the event a Party (the "Indemnified Party")
becomes aware of any claim, proceeding or other matter (a "Claim") with respect
to which another Party (the "Indemnifying Party") agreed to indemnify the
Indemnified Party pursuant to this Agreement, the Indemnified Party shall
promptly give written notice thereof to the Indemnifying Party. Said notice to
specify with reasonable particularity (to the extent that the information is
available) the factual basis for the Claim and the amount of the Claim, if
known.
(b) Failure to Give Notice. If, through the fault of the Indemnified
Party, the Indemnifying Party does not receive notice of a Claim in time to
effectively contest the determination of any liability susceptible of being
contested, the Indemnifying Party shall be entitled to set off against the
amount claimed by the Indemnified Party the amount of any Losses incurred by the
Indemnifying Party resulting from the Indemnified Party's failure to give such
notice on a timely basis.
13. CONTRACT FORM. Trendwest to review and approve, prior to use, any
changes made by the Licensees to the WorldMark Contract or Upgrade Contract.
14. SALES PRACTICES. Licensees shall conform to all, then applicable,
laws, regulations, Trendwest sales practices and procedures, and industry
ethical standards relating to sales practices. Licensees acknowledge and agree
that failure to follow such sales practices could subject Trendwest to
regulatory discipline or civil liability, and shall constitute a material breach
of this Agreement.
15. REPORTING OBLIGATIONS. Licensees to provide Trendwest with such
sales and other reports, and at such frequencies and in such format, as
Trendwest deems reasonably necessary to monitor the transactions contemplated
under this Agreement.
16. ASSIGNMENT OF LEASE FOLLOWING CESSATION OF SALES ACTIVITIES. The
Parties anticipate that one or both of the Licensees will enter into one or more
long-term leases (the "Lease") for one or more timeshare units at the Eagle
Crest Resort and/or Running Y Ranch Resort for use as a sales model or sales
office in connection with Licensees' WorldMark sales activities ("Sales Units").
In the event Licensees cease WorldMark sales activities for a continuous period
of more than 180 days at either resort, Licensees will assign to Trendwest all
of Licensee's prospective rights and obligations under any Lease related to the
resort at which sales activities have ceased. In consideration for the
assignment of the Lease, Trendwest shall pay Eagle Crest an amount as calculated
hereinbelow. The Parties understand and agree that payment of the amount is not
contingent upon the prior registration of the Sales Units.
Number of WorldMark Credits that Market Value of
Trendwest would assign to the Sales WorldMark
Units were Trendwest to register X Product Cost X Credits
the Sales Units with the timeshare
regulator for the State of Washington
17. MISCELLANEOUS
17.1 Good Faith. The Parties shall act diligently, timely and in good
faith to accomplish the objectives set forth in this Agreement.
17.2 Severability. If any provision of this Agreement, including any
phrase, sentence, clause, article, section or subsection is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering any other provision or provisions invalid, inoperative, or
unenforceable to any extent whatsoever and which provisions shall continue in
full force and effect and be construed as if this Agreement had been executed
without the invalid or unenforceable portion.
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17.3 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if: (i) on the date the
notice is personally delivered or sent via telecopier; (ii) one day after being
sent by first-class, registered or certified mail, return receipt requested,
postage prepaid; or (iii) sent by next-day or overnight mail or delivery. All
notices or other communications required under this Agreement shall be made to
the following addresses, or to such other change of address made subsequent to
the execution of this Agreement and delivered in accordance with this notice
provision:
(a) If to Trendwest: Trendwest Resorts, Inc.
Attn: Legal Department
9805 Willows Road
Redmond, WA 98052
Fax: 425-498-3059
(b) If to WorldMark: WorldMark, The Club
Attn: Legal Department
9805 Willows Road
Redmond, WA 98052
Fax: 425-498-3059
(c) If to Eagle Crest: Eagle Crest, Inc.
Attn: Jerol E. Andres
PO Box 1215 Redmond, OR
97756 Fax: 541-923-0881
(d) If to Running Y: Running Y Resort, Inc.
Attn: Jerol E. Andres
PO Box 1215 Redmond, OR
97756 Fax: 541-923-0881
17.4 Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
17.5 Entire Agreement This Agreement, including any exhibits attached
hereto, and relevant portions of the Merger Agreement (assuming such agreement
is executed by the parties and the transaction contemplated therein has closed),
constitutes the entire agreement between the Parties regarding the matters
addressed in this Agreement, and supersedes all prior agreements or
understandings, both written and oral, between the Parties with respect to the
subject matter hereof.
17.6 Governing Law. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the laws of the state of
Oregon without giving effect to the conflict of laws rules thereof; except that
any dispute involving real property shall be governed by the laws of the state
where the real property is located.
17.7 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and permitted
assigns.
17.8 Assignment. This Agreement shall not be assigned or otherwise
transferred by any Party without the prior written consent of the other Parties;
except that any Party may assign this Agreement to any of their respective
subsidiaries or affiliates without the consent of the other Parties provided the
assigning Party remains liable to perform its covenants and obligations
hereunder.
17.9 Dispute Resolution. It is the intent of the Parties that any
unresolved dispute relating to, or arising out of this Agreement, will be
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settled by negotiation. In the event the Parties do not negotiate a settlement,
the Parties agree to make a diligent and good faith effort to mediate their
dispute for a minimum of four (4) hours before a mutually acceptable mediator,
which shall be a condition precedent to submission for arbitration or other
legal action. If the Parties cannot agree on a mediator, any Party may petition
the American Arbitration Association to appoint a mediator. The cost of
mediation shall be shared by the Parties involved. Notice of demand for
mediation must be made within a reasonable period of time after the dispute or
controversy has arisen, and shall be in writing.
17.10 Attorneys' Fees. In the event legal action (other than mediation)
is commenced by any Party to enforce or to declare the effect of any provision
of this Agreement, the prevailing Party (as determined by the court or
arbitrator) shall be entitled to reasonable attorneys fees and costs incurred at
trial, on appeal, on petition for review, or in any related bankruptcy
proceeding. A Party shall also be entitled to reasonable attorney's fees and
costs incurred to enforce or collect a judgment or award.
17.11 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have executed this WorldMark Marketing
Agreement as of the dates set forth adjacent to their signatures below.
DATE: May 4, 2001 TRENDWEST RESORTS, INC.
By: _____________________________________
Title:____________________________________
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DATE: May 4, 2001 EAGLE CREST, INC.
By: _____________________________________
Title:____________________________________
DATE: May 4, 2001 RUNNING Y RESORT, INC.
By: _____________________________________
Title:____________________________________
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