RECEIVABLE SALE AGREEMENT
between
TRENDWEST RESORTS, INC.,
as Seller
and
TW HOLDINGS II, INC.,
as Purchaser
Dated as of April 15, 1999
RECEIVABLE SALE AGREEMENT (the "Agreement"), dated as of April 15,
1999, by and between Trendwest Resorts, Inc., an Oregon corporation (the
"Seller"), and its successors and permitted assigns and TW Holdings II, Inc., a
Delaware corporation (the "Purchaser"), and its successors and assigns.
W I T N E S S E T H:
WHEREAS, the Purchaser has been formed as a qualifying special purpose
entity for the purpose of acquiring Receivables from the Seller; and
WHEREAS, from time to time, the Seller intends to sell or contribute
Receivables to the Purchaser, and the Purchaser intends to purchase and/or
accept Receivables from the Seller.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto covenant and agree as follows:
SECTION 1. Definitions; Interpretation. Capitalized terms used but not
defined herein shall have the meanings given them "Trendwest Warehouse Facility
Definitions" attached hereto as Annex A.
SECTION 2. Sale and Disposition of Receivables.
(a) From time to time, the Seller may sell or contribute (and
by execution of a Sale Assignment will thereby sell or contribute) to the
Purchaser, subject to the terms and conditions of this Agreement, all right,
title and interest of the Seller in and to:
(i) the Receivables listed in the related Sale
Assignment, all payments paid in respect thereof and all monies due, to
become due or paid in respect thereof after the related Cut-off Date
and all liquidation proceeds and recoveries thereon, in each case as
they arise after the related Cut-off Date or other date specified in
the Sale Assignment;
(ii) all security interests and liens and property subject
thereto from time to time purporting to secure payment by Obligors
under such Receivables;
(iii) all guaranties, indemnities and warranties, and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivables;
(iv) all collections and records (including computer records)
with respect to the
foregoing;
(v) all documents relating to such Receivables, including
those contained in the Receivable Files and all Receivable Documents;
and
(vi) all income, payments, proceeds and other benefits of any
and all of the foregoing.
Subject to the terms and conditions of this Agreement, the Purchaser agrees to
purchase or accept the foregoing from the Seller. To the extent that the
Receivable Acquisition Price paid to the Seller for any Receivables is less than
the fair market value of such Receivables, the difference between such fair
market value and the Receivable Acquisition Price shall be deemed to be a
capital contribution made by the Seller to Purchaser on the relevant Sale Date.
(b) In order to offer a Receivable for sale by the Seller to the
Purchaser, the Seller shall deliver to the Custodian, on behalf of the
Purchaser, each of the Receivable Documents and the originally executed Sale
Assignment therefor five Business Days prior to the Sale Date. Upon receipt by
the Custodian of the complete Receivable Documents and the duly executed
original Sale Assignment, the acceptance and approval by the Lender of a duly
executed Receipt from the Custodian, and subject to the terms of this Agreement,
the Purchaser will transfer or cause to be transferred to the Seller, an amount
equal to the Receivable Acquisition Price with respect to such the Receivables
identified on the Receipt by the close of business on or before the second
Business Day following the receipt by the Custodian of such Receivable Documents
and Sale Assignment.
(c) Upon payment of the Receivable Acquisition Price and execution of
the Sale Assignment with respect to a Receivable, the ownership of each such
Receivable and all collections allocable to principal thereon since the related
Cut-off Date and all other property interests or rights conveyed pursuant to and
referenced in Section 2(a) hereof, shall be vested in the Purchaser, and the
Seller shall not take any action inconsistent with such ownership nor claim any
ownership interest in any such Receivable for any purpose whatsoever other than
consolidated financial and federal and state income tax reporting.
(d) On or prior to the related Sale Date, the Seller shall indicate in
its computer files and other records that each Receivable has been sold to the
Purchaser and transferred and, if applicable, pledged to the Trustee on behalf
of the Lender. In addition, on or prior to the Sale Date, the Seller shall
deliver to the Purchaser (or, if the Purchaser has pledged such Receivables to
the Trustee, to the Lender), UCC-1 financing statements in favor of the
Purchaser and, if applicable, the Trustee on behalf of the Lender with respect
to the Receivables meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary or appropriate to perfect the
acquisition of the Receivables by the Purchaser from the Seller. In addition,
the Seller and the Purchaser each shall respond to any inquiries with respect to
ownership of a Receivable by stating that such Receivable has been sold to the
Purchaser and that the Purchaser is the owner of such Receivable and, if
applicable, that such Receivable has been assigned to the Trustee on behalf of
the Lender.
(e) The Seller, at any time and from time to time shall, at its sole
cost and expense, afford the Purchaser, the Trustee and the Custodian, as the
case may be, and their respective authorized agents and representatives upon
reasonable notice, reasonable access during regular business hours to its
records relating to its performance under and compliance with this Agreement and
will cause its personnel to assist in any examination of such records to enable
such party to determine the Seller's compliance with the terms of this
Agreement. The examination referred to in the immediately preceding sentence
will be conducted in a manner that does not unreasonably interfere with the
Seller's normal operations or customer or employee relations.
(f) The Seller agrees that, from time to time, at its expense, it will
promptly execute and deliver all further instruments, notices and documents, and
take all further action, that may be necessary or appropriate, as reasonably
determined by the Purchaser, or that the Purchaser may reasonably request, in
order to perfect, protect or more fully evidence the transfer of ownership of
the Receivables to the Purchaser or to enable the Purchaser or the Trustee on
behalf of the Lender to exercise or enforce any of its respective rights
hereunder or under any Sale Assignment, as the case may, be or to otherwise
facilitate any Securitization Take-out.
(g) Any action required or permitted to be taken by the Purchaser in
furtherance of its agreement to purchase Receivables hereunder, including
enforcement of its rights and receipt of documents, may be delegated by it to
one or more agents, or assigned to the Lender pursuant to the Credit Agreement.
(h) Seller acknowledges that the Purchaser has been formed with the
intent that the Receivables will, from time to time, be pooled and disposed of
by the Purchaser in a Securitization Take-out.
(i) Except as specifically provided for herein, the sale and the
purchase of the Receivables under this Agreement is without recourse to the
Seller; provided that the Seller shall be liable to the Purchaser for all
representations, warranties, covenants and indemnities made by it under this
Agreement.
(j) Neither the Purchaser nor any assignee shall have any obligation or
liability with respect to any Receivable, nor shall the Purchaser or any
assignee have any liability to any Obligor in respect of any Receivable. No such
obligation or liability is intended to be assumed by the Purchaser or any
assignee herewith, and any such liability hereby is expressly disclaimed.
SECTION 3. Intended Characterization; Grant of Security Interest.
It is the intention of the parties hereto that each transfer of
Receivables to be made pursuant to the terms hereof shall constitute a sale or,
to the extent set forth in Section 2(a) hereof, a capital contribution by the
Seller to the Purchaser and not a loan. In the event, however, that a court of
competent jurisdiction were to hold that any such transfer constitutes a loan
and not a sale or capital contribution, it is the intention of the parties
hereto that the Seller shall be deemed to have granted to the Purchaser as of
the date hereof a first priority perfected security interest in all of Seller's
right, title and interest in, to and under each Receivable, and the related
property as described in Section 2(a) hereof. In the event of the
characterization of any such transfer as a loan, the amount of interest payable
or paid with respect to such loan under the terms of this Agreement shall be
limited to an amount which shall not exceed the maximum nonusurious rate of
interest allowed by the applicable state law or any applicable law of the United
States permitting a higher maximum nonusurious rate that preempts such
applicable state law, which could lawfully be contracted for, charged or
received (the "Highest Lawful Rate"). In the event any payment of interest on
any such loan exceeds the Highest Lawful Rate, the parties hereto stipulate that
(a) to the extent possible given the term of such loan, such excess amount
previously paid or to be paid with respect to such loan be applied to reduce the
principal balance of such loan, and the provisions thereof immediately be deemed
reformed and the amounts thereafter collectible thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the then
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for thereunder and (b) to the extent that the reduction of the principal
balance of, and the amounts collectible under, such loan and the reformation of
the provisions thereof described in the immediately preceding clause (a) is not
possible given the term of such loan, such excess amount will be deemed to have
been paid with respect to such loan as a result of an error and upon discovery
of such error or upon notice thereof by any party hereto such amount shall be
refunded by the recipient thereof.
SECTION 4. Conditions Precedent to Purchase.
The agreement of the Purchaser to purchase Receivables pursuant to
Section 2 on the first Sale Date is subject to the fulfillment and satisfaction
of the conditions required in Section 3 and Section 4 of the Credit Agreement
and, on any Sale Date thereafter, the conditions required in Section 4 of the
Credit Agreement.
SECTION 5. Representations and Warranties of Seller.
(a) The Seller represents and warrants to the Purchaser, as of the date
hereof (which representations and warranties shall be deemed reaffirmed on each
Sale Date as though made on such Sale Date) with respect to the Seller as
follows:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Oregon, is
duly qualified to do business and is in good standing in every
jurisdiction in which the nature of its business requires it to be so
qualified;
(ii) The Seller has the power and authority to own and convey
all of its properties and assets and to execute and deliver this
Agreement and to perform the transactions contemplated hereby;
(iii) the execution, delivery and performance by the Seller
of this Agreement and the transactions contemplated hereby, (A) have
been duly authorized by all necessary corporate or other action on the
part of the Seller, (B) do not contravene or cause the Seller to be in
default under (1) the Seller's organizational documents or operating
agreement, (2) any contractual restriction with respect to any debt of
the Seller or contained in any indenture, loan or credit agreement,
lease, mortgage, security agreement, bond, note, or other agreement or
instrument binding on or affecting the Seller or its property or (3)
any law, rule, regulation, order, writ, judgment, award, injunction or
decree applicable to, binding on or affecting the Seller or its
property and (C) do not result in or require the creation of any
Adverse Claim;
(iv) this Agreement has been duly executed and delivered on
behalf of the Seller;
(v) no consent of, or other action by, and no notice to or
filing with, any Governmental Authority or any other party, is required
for the due execution, delivery and performance by the Seller of this
Agreement or for the perfection of or the exercise by the Purchaser of
any of its rights or remedies hereunder, other than such consents as
have been obtained and complete copies of which have been provided to
the Purchaser except that the exercise of remedies hereunder may
require notices and other actions in accordance with applicable law at
the applicable time;
(vi) this Agreement is the legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms;
(vii) there is no pending or to the Seller's best knowledge,
threatened action, suit or proceeding, against or affecting the Seller
or the property of the Seller, in any court or tribunal, or before any
arbitrator of any kind or before or by any Governmental Authority (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
sale and assignment by the Seller of any Receivable or the consummation
of any of the transactions contemplated hereby or (C) seeking any
determination or ruling that might materially and adversely affect (1)
the performance by the Seller of this Agreement or (2) the validity or
enforceability of this Agreement; and
(viii) the Seller confirms each of the representations and
warranties made by it pursuant to Section 2.2 of the Credit Agreement.
(b) With respect to each Receivable, the Seller represents and warrants
to the Purchaser, as of the Sale Date, that:
(i) such Receivable has not been sold, assigned or pledged by
the Seller to any other Person, and the Seller has conveyed to the
Purchaser all of the Seller's right, title and interest to such
Receivable, free and clear of any Adverse Claim;
(ii) this Agreement and each related Sale Assignment
constitutes a valid sale, transfer, assignment set-over and conveyance
to the Purchaser of all right, title and interest of the Seller in and
to such Receivable now existing and hereafter created;
(iii) the Sale Assignment has been duly executed and
delivered by the Seller;
(iv) each Receivable Document has been delivered to the
Custodian on behalf of Purchaser or any assignee of the Purchaser;
(v) Bulk Transfer Provisions. No transfer, assignment
or conveyance of the Receivables contemplated by this Agreement
will be subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(vi) Transfer Taxes. No transfer, assignment or conveyance of
the Receivable is subject to or will result in any tax, fee or
governmental charge payable by the Seller or the Purchaser to any
federal, state or local government ("Transfer Taxes"). In the event
that the Seller or the Purchaser receives actual notice of any Transfer
Taxes arising out of the transfer, assignment and conveyance of the
Receivable, on written demand by the Purchaser, or upon the Seller
otherwise being given notice thereof, the Seller shall pay, and
otherwise indemnify and hold the Purchaser, the Trustee and the
Noteholders harmless, on an after-tax basis, from and against any and
all such Transfer Taxes;
(vii) Legal Name. The legal name of the Seller is as set
forth in the signature page of this Agreement. The Seller has not
operated under any other names during the last six years. The Seller
does not have any other trade names, fictitious names, assumed names or
"doing business as" names;
(viii) Additional Representations and Warranties. The Seller
confirms the representations and warranties made by it pursuant to
Section 2.3 of the Credit Agreement; and
(xii) All Filings Made. Except as provided for in Section 2(d)
hereof, at the Sale Date, no further filings (including, without
limitation, UCC filings) or other actions are necessary in any
jurisdiction to give the Purchaser an ownership interest in the
Receivables.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive the sale or contribution of a
Receivable to the Purchaser and any pledge of such Receivable by the Purchaser
to the Trustee on behalf of the Lender and shall continue so long as any such
Receivable shall remain outstanding until such time as such Receivable is
repurchased pursuant to Section 5(d). The Seller acknowledges that it has been
advised that the Purchaser may assign all or part of its right, title and
interest in and to each Receivable and its right to exercise the remedies
created by this Section 5 to the Trustee on behalf of the Lender. The Seller
agrees that, upon any such assignment, the Trustee and the Lender may enforce
directly, without joinder of the Purchaser (but subject to any defense that the
Seller may have under this Agreement), the purchase obligations of the Seller
set forth in Section 5(d) with respect to breaches of the representations and
warranties set forth in Section 5(a) and Section 5(b).
(d) Upon discovery by the Purchaser, the Trustee or the Lender, any
subsequent assignee or the Seller of a breach of any of the representations and
warranties in Section 5(a) or Section 5(b) which materially and adversely
affects the value of a Receivable or the interests of the Purchaser or a
subsequent assignee therein, the party discovering such breach or failure to
deliver shall give prompt written notice to the other parties. If, at the time
of such discovery, (i) no loss has yet occurred with respect to such Receivable,
(ii) such breach or failure to deliver is curable and (iii) Seller shall have
failed to cure such breach within 30 days after the earlier of (A) the Seller's
discovery of such breach and (B) the Seller's receipt of written notice of such
breach, then if requested in writing by notice from the Purchaser or any
subsequent assignee, the Seller shall immediately repurchase such Receivable by
remitting an amount equal to the Repurchase Price in the manner specified in
such notice. Any such repurchase shall be made without recourse against, or
warranty, express or implied, of the Purchaser or any such assignee.
Notwithstanding the immediately preceding sentence, in connection with any such
repurchase, the Purchaser shall in writing represent to the Seller (i) the
amount of the remaining balance of the relevant Receivable and (ii) that the
Purchaser has not violated in any material way any laws applicable to the
collectibility of such Receivable. The Purchaser or any subsequent assignee
shall execute and deliver an assignment substantially in the form of Exhibit B
attached hereto and made a part hereof to vest ownership of such Receivable in
the Seller. If, at the time of the discovery of such breach, a loss has occurred
with respect to such Receivable, then the Seller shall pay to the Purchaser or
any subsequent assignee an amount equal to the amount, if any, by which the
Repurchase Price exceeds the net proceeds from such Receivable. It is understood
and agreed that the obligation of the Seller to repurchase any Receivable
pursuant to this Section 5(d) or to make the payment described in the
immediately preceding sentence (the "Repurchase Requirement") shall constitute
the sole remedy for the breach of any representation or warranty set forth in
Section 5(b); provided, that the foregoing limitation shall not be construed to
limit in any manner the Purchaser's rights to (a) declare the Termination Date
to have occurred to the extent that such breaches also constitute, or contribute
to the determination of, an Event of Purchase Termination, or (b) offset the
amount of the Repurchase Price from the Receivable Acquisition Price in
connection with any other Receivables. It is also understood and agreed that
upon the repurchase by Seller of a Receivable in accordance with this Section
5(d) and the payment by Seller of all monies required to be paid by it under
this Section 5(d) it is the intention of the parties hereto and the Purchaser
warrants that, if the seller of such Receivable is the Purchaser, Seller shall
own all right, title and interest of the Purchaser in and to such Receivable.
(e) With respect to any representations and warranties contained in
Section 5(b) which are made to the best of the Seller's knowledge, if it is
discovered that any representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of a Receivable or the
interests of the Purchaser or any assignee thereof, then notwithstanding the
Seller's lack of knowledge of the accuracy of such representation and warranty
at the time such representation or warranty was made, such inaccuracy shall be
deemed a breach of such representation or warranty for purposes of the
Repurchase Requirement described in Section 5(d).
(f) It is understood and agreed that the Repurchase Requirement shall
survive any assignment of a Receivable by the Purchaser to any subsequent
assignee and shall continue so long as any such Receivable shall remain
outstanding notwithstanding any termination of this Agreement.
SECTION 6. Additional Covenants of Seller. Seller shall, unless
the Purchaser shall otherwise consent in writing:
(a) comply in all material respects with all applicable laws,
rules, regulations and orders with respect to itself, its business and
properties; and
(b) preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its organization and,
if applicable, all necessary Sales Finance Company Licenses.
SECTION 7. Events of Purchase Termination. If any of the following
events (each, an "Event of Purchase Termination") shall occur and be continuing:
(a) the Seller shall fail to perform or observe any material
term, covenant or agreement contained in this Agreement and such
failure shall remain unremedied for 30 days after written notice
thereof shall have been given by the Purchaser to the Seller; or
(b) an Event of Default under the Credit Agreement or the
Indenture which default results in the acceleration of the Notes; or
(c) there is a material breach of any of the
representations and warranties of the Seller set forth in Section
5(a); or
(d) this Agreement and each Sale Assignment shall for any
reason cease to evidence the transfer to the Purchaser of the legal,
equitable and marketable title to, and ownership of, the Receivables;
or
(e) the Purchaser becomes obligated to cease
purchasing Receivables from the Seller in accordance with the
Credit Agreement;
then and in any such event, the Purchaser may, by notice to the Seller declare
an Event of Purchase Termination to have occurred, in which case the Termination
Date shall be the date such notice is given without demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Seller;
provided, that in the event that any of the Events of Purchase Termination
described in subsections (d) or (e) of this Section 7 shall have occurred, an
Event of Purchase Termination shall be deemed to have been declared in which
case the Termination Date shall be on the date on which such Event of Purchase
Termination shall have occurred, without demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Seller. Upon any such
actual declaration or deemed declaration, (i) all of the Seller's rights under
this Agreement (except its rights by virtue of the Purchaser not having
performed its obligations and agreements hereunder) shall terminate and (ii) the
Purchaser shall have, in addition to all other rights and remedies under this
Agreement, all other rights and remedies provided under the UCC and other
applicable law, which rights shall be cumulative.
SECTION 8. No Proceedings. The Seller hereby agrees that it will not,
directly or indirectly, institute, or cause to be instituted, or join any Person
in instituting, against the Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law so long as there shall not have
elapsed one year plus one day since the latest maturing Notes issued by the
Purchaser.
SECTION 9. Notices, Etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing and mailed or
telecommunicated, or delivered as to each party hereto, at its address set forth
under its name on the signature page hereof or at such other address as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall not be effective until received by the
party to whom such notice or communication is addressed.
SECTION 10. No Waiver; Remedies. No failure on the part of the Seller,
the Purchaser or any assignee thereof to exercise, and no delay in exercising,
any right hereunder or under any Sale Assignment shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
other remedies provided by law.
SECTION 11. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Seller, the Purchaser and their
respective successors and permitted assigns. Any assignee shall be an express
third party beneficiary of this Agreement, entitled to directly enforce this
Agreement. The Seller may not assign any of its rights and obligations hereunder
or any interest herein without the prior written consent of the Purchaser and
any assignee. The Purchaser may, and intends to, assign all of its rights
hereunder and the Seller consents to any such assignment. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until its
termination; provided, that the rights and remedies with respect to any breach
of any representation and warranty made by the Seller pursuant to Section 5 and
the Repurchase Requirement shall be continuing and shall survive any termination
of this Agreement.
SECTION 12. Amendments; Consents and Waivers. No modification,
amendment or waiver of, or with respect to, any provision of this Agreement, and
all other agreements, instruments and documents delivered thereto, nor consent
to any departure by the Seller from any of the terms or conditions thereof shall
be effective unless it shall be in writing and signed by each of the parties
hereto and the written consent of the Lender is given. The Purchaser shall
promptly provide the Trustee with such written modifications, amendments or
waivers. Any waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No consent to or demand by the Seller in
any case shall, in itself, entitle it to any other consent or further notice or
demand in similar or other circumstances. The Seller acknowledges that in
connection with the intended assignment by the Purchaser of all of the Seller's
right, title and interest in and to each Receivable to the Trustee on behalf of
the Lender, the Purchaser intends to enter into certain financing and security
arrangements with the Lender, and the Lender, subject to the terms of such
arrangements, shall provide funds to the Purchaser to purchase Receivables
hereunder and pursuant to which the ability of the Purchaser to perform
hereunder (including its ability to purchase Receivables and to render consents
hereunder) shall be subject to the consent of the Lender. Notwithstanding the
above, the obligation of the Purchaser to perform hereunder shall not be
diminished by the existence of such arrangements.
SECTION 13. Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation, shall not in any way be
affected or impaired thereby in any other jurisdiction. Without limiting the
generality of the foregoing, in the event that a Governmental Authority
determines that the Purchaser may not purchase or acquire Receivables, the
transactions evidenced hereby shall constitute a loan and not a purchase and
sale, notwithstanding the otherwise applicable intent of the parties hereto and
the Seller shall be deemed to have granted to the Purchaser as of the date of
each Sale a first priority perfected security interest in all of the Seller's
right, title and interest in, to and under the Receivables, and all proceeds
thereof.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS PRINCIPLES OF
CONFLICTS OF LAW.
(B) THE SELLER AND THE PURCHASER HEREBY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND EACH
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET
FORTH ON THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS,
POSTAGE PREPAID. THE SELLER AND THE PURCHASER EACH HEREBY WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE SELLER OR THE PURCHASER TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY OF THEM TO BRING ANY
ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 15. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 16. Execution in Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and both of which when taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Receivable
Sale Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
TRENDWEST RESORTS, INC.,
as Seller
By: _______________________
Name:
Title:
Address: 9805 Willows Road
Redmond, Washington 98052
Telephone: (425) 498-2500
Telecopier: (425) 498-3062
TW HOLDINGS II, INC.,
as Purchaser
By: ______________________
Name:
Title:
Address: 9805 Willows Road
Redmond, Washington 98052
Telephone: (425) 498-2500
Telecopier: (425) 498-3062
ex-receivable sale agreement
EXHIBIT A
TO
RECEIVABLE SALE AGREEMENT
DATED AS OF APRIL 15, 1999
BY AND BETWEEN
TRENDWEST RESORTS, INC.
AND
TW HOLDINGS II, INC.
[FORM OF SALE ASSIGNMENT]
SALE ASSIGNMENT, dated as of [__], 199[_], between Trendwest
Resorts, Inc. (the "Seller") and TW Holdings II, Inc. (the "Purchaser").
1. We refer to the Receivable Sale Agreement (the "Sale
Agreement") dated as of April 15, 1999 between the Assignor and the Assignee.
All provisions of such Sale Agreement are incorporated herein by reference. All
capitalized terms shall have the meanings set forth in the Sale Agreement.
2. Pursuant to the Sale Agreement, the Seller does hereby
sell, transfer, assign, set over and convey to the Purchaser all right, title
and interest of the Seller in and to the Receivables listed on Schedule 1 hereto
(each, a "Receivable") and the Purchaser does hereby purchase each such
Receivable.
3. Pursuant to the Sale Agreement, the Seller does hereby
contribute, transfer, assign, set over and convey to the Purchaser, without
recourse, all right, title and interest of the Seller in and to the Receivables
listed on Schedule 1 hereto (each, a "Contributed Receivable") and the Purchaser
does hereby accept such contribution to its stated capital.
4. The Unpaid Principal Balance for the Receivables sold and
purchased hereby is $[__]. The Receivable Acquisition Price for the Receivables
sold and purchased hereby is $[__], representing the lesser of (i) 90% of the
Unpaid Principal Balance on the date hereof, or (ii) 90% of the aggregate market
value of such Receivables. The Receivable Acquisition Price shall be payable in
full contemporaneously with the execution of this Sale Assignment.
ex-receivable sale agreement
IN WITNESS WHEREOF, the parties have caused this Sale
Assignment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
TRENDWEST RESORTS, INC.,
as Seller
By: _________________________
Name:
Title:
TW HOLDINGS II, INC.,
as Purchaser
By: ________________________
Name:
Title:
ex-receivable sale agreement
SCHEDULE 1
SCHEDULE OF RECEIVABLES
ex-receivable sale agreement
EXHIBIT B
TO
RECEIVABLE SALE AGREEMENT
DATED AS OF APRIL 15, 1999
BY AND BETWEEN
TRENDWEST RESORTS, INC.
AND
TW HOLDINGS II, INC.
[FORM OF REPURCHASE ASSIGNMENT]
REPURCHASE ASSIGNMENT (this "Purchase Assignment"), dated as of
April [__], 1999 between Trendwest Resorts, Inc. (the "Seller") and
TW Holdings II, Inc. (the "Purchaser")] [ASSIGNEE OF THE PURCHASER].
We refer to the Receivable Sale Agreement (the "Agreement"), dated as
of April 15, 1999, by and between the Seller and the Purchaser. All capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
the Agreement.
Pursuant to Section 5(d) of the Agreement, the Purchaser [ASSIGNEE OF
THE PURCHASER] does hereby sell, transfer, assign, set over and convey to the
Seller, without recourse or warranty, express or implied, all right, title and
interest of the Purchaser [ASSIGNEE OF THE PURCHASER] in and to the Receivables
listed on Schedule 1 attached hereto and made a part hereof (each, a
"Repurchased Receivable"), in consideration for receipt of the aggregate
Repurchase Price for such Repurchased Receivables, and the Seller does hereby
purchase each such Repurchased Receivable.
The Repurchase Price for each Repurchased Receivable is set forth on
Schedule 1 attached hereto and made a part hereof.
THIS PURCHASE ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAW.
ex-receivable sale agreement
IN WITNESS WHEREOF, the parties have caused this Repurchase
Assignment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
TRENDWEST RESORTS, INC.
By: ___________________________
Name:
Title:
TW HOLDINGS II, INC.
By: __________________________
Name:
Title:
[ASSIGNEE OF THE PURCHASER]