EXHIBIT 10.1
LOAN PURCHASE AND SALE AGREEMENT
This Loan Purchase and Sale Agreement (Agreement) is made this ___ day of
June, 2002 by and between Las Vegas Golf Center, L.L.C., a Nevada limited
liability company (Transferor); ILX Resorts Incorporated, an Arizona corporation
(Transferee); and the following Members of Transferor: Xxxxxxxx X. Xxxx, Xxxxxx
X. Xxxx and Xxxxx Xxxxxx Xxxx, individually and collectively referred to as
Members (Members).
RECITALS
A. Transferor is the Payee and Holder of a Secured Promissory Note dated
July 31, 2001 in the Principal Amount of $4,900,000.00 by and between Las Vegas
Golf Center, L.L.C. as Payee and Holder and VCA Nevada Incorporated, an Arizona
corporation as Maker (Note). A copy of the Note is attached to this Agreement as
Exhibit A.
B. Transferor is the Beneficiary of a Deed of Trust and Assignment of Rents
dated July 31, 2001 and recorded in Xxxxx County, Nevada at Book 20010726 as
Document Number 00184 wherein VCA Nevada Incorporated is the Trustor (Deed of
Trust). A copy of the Deed of Trust is attached to this Agreement as Exhibit B.
C. The Note and Deed of Trust are the loan documents (Loan Documents)
evidencing a loan (Loan) between Transferor and VCA Nevada Incorporated, an
Arizona corporation.
D. Transferee desires to purchases and Transferor desires irrevocably to
sell, all of Transferor's right, title and interest in and to the Loan and the
Loan Documents, subject to the terms, conditions and provisions of this
Agreement.
AGREEMENT
Now, therefore, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
PURCHASE AND SALE, NO RECOURSE.
1.1 PURCHASE AND SALE. Subject to all of the provisions, terms and
conditions of this Agreement, on the Closing Date (as hereinafter defined)
1
Transferee shall purchase and accept from Transferor and Transferor shall
irrevocably sell, transfer and assign to Transferee all of Transferor's right,
title and interest in and to the Loan, the Loan Documents and all of
Transferor's liens against the real and personal property encumbered by the Deed
of Trust. The purchase of the Loan hereunder is made based upon Transferor's
representations and warranties set forth in Section 7.1 hereof.
SECTION 2
PURCHASE PRICE
2.1 AMOUNT OF PURCHASE PRICE. On or before June 28, 2002 or such other
date as may be agreed upon in writing by Transferor and Transferee (the "Closing
Date"), Transferee shall pay to Transferor for the complete purchase price the
sum of Three Million Three Hundred Twenty-Five Thousand Dollars ($3,325,000)
(the "Purchase Price") in immediately available funds to purchase the Loan
Documents.
2.2 PAYMENT OF FUNDS. The payment will be made through Escrow #02-06-1386
DTL at Nevada Title in Las Vegas, Nevada with Xxxx Xxxxxxxx as the Escrow
Officer. All closing costs of the Escrow will be paid by the parties as is
customary in Xxxxx County, Nevada.
SECTION 3
COSTS AND EXPENSES.
Transferor and Transferee shall bear their respective costs and expenses in
connection with the negotiation and performance of this Agreement. Without
limiting the generality of the foregoing, Transferor shall have no
responsibility for the payment of any unpaid or accrued taxes or assessments
outstanding on the property which is the subject of the Deed of Trust.
SECTION 4
CONDITIONS TO CLOSING.
4.1 TRANSFEROR'S CONDITIONS. All obligations of the Transferor to sell and
transfer the Loan and the Loan Documents to Transferee (the "Closing") are
subject to the satisfaction or Transferor's written waiver of the following
conditions:
On the Closing Date:
A. Transferor shall have received the Purchase Price in accordance
with Section 2.
2
B. All representations and warranties of Transferee set forth in
Section 7.2 shall be true.
C. Transferor shall have received the payment due on the Note on
July 1, 2002 which payment may be made through escrow.
4.2 TRANSFEREE'S CONDITIONS. All obligations of the Transferee to buy and
accept the Loan and the Loan Documents are subject to the satisfaction or
Transferee's written waiver of the following conditions:
A. Within two (2) days of the date of this Agreement, Transferee
shall have received a counterpart original of this Agreement,
duly executed by Transferor.
B. On the Closing Date, all representations and warranties of
Transferor set forth in Section 7.1 shall be true.
C. Transferee shall have received a Lender's Title Policy from
Nevada Title in a form acceptable to Transferee.
SECTION 5
DELIVERY OF LOAN DOCUMENTS.
5.1 BY TRANSFEROR. Subject to the timely satisfaction of all the
conditions precedent set forth in Section 4.1, Transferor shall deliver upon
Closing:
A. The originals of each of the Loan Documents.
B. The Allonge in the form of Exhibit C, duly executed by
Transferor.
C. An Assignment of Beneficial Interest in Deed of Trust in the form
of Exhibit D duly executed by Transferor.
5.2 BY TRANSFEREE. Subject to the timely satisfaction of all the
conditions precedent set forth in Section 4.2, Transferee shall deliver upon
Closing:
A. A release duly signed by Las Vegas Development Co., L.L.C., a
Nevada limited liability company of Transferor for any brokerage
fees arising out of Escrow #99-12-0047 DTL at Nevada Title
Company in the form attached as E.
3
SECTION 6
NON-SATISFACTION OF CONDITIONS.
If the sale and purchase contemplated herein does not close on the Closing
Date due to the failure of the satisfaction of any of the conditions contained
in Section 4, and if either party does not waive in writing the non-satisfaction
of each such condition, this Agreement shall thereupon be cancelled and
terminated.
SECTION 7
REPRESENTATIONS AND WARRANTIES.
7.1 TRANSFEROR'S AND MEMBERS' REPRESENTATIONS AND WARRANTIES. Transferor
and Members hereby each make the following representations and warranties for
the benefit of Transferee as of the Closing Date:
A. Transferor has all right, power and authority required to execute
and deliver this Agreement and to perform the terms of this
Agreement.
B. Transferor is the legal and beneficial owner and holder of the
Loan Documents.
C. Transferor has not assigned or pledged the Loan Documents to any
third party. No third party has any claim of right, title,
ownership or encumbrance on or to the Note or Deed of Trust.
D. VCA Nevada Incorporated is not in default under the Loan
Documents and no event has occurred which with the passage of
time or the giving of notice or both would constitute a default
under the Loan Documents. The outstanding principal balance on
the Note is $4,900,000.
E. Transferor has no creditors and there is no third party that has
any ability to cause Transferor to file a reorganization
proceeding.
F. On or before December 31, 2002, neither Transferor nor any Member
shall take any action or sign any documents which would cause or
result in Transferor filing a reorganization proceeding.
7.2 TRANSFEREE'S REPRESENTATIONS AND WARRANTIES. Transferee hereby makes
the following representation and warranty for the benefit of Transferor as of
the Closing Date:
A. Transferee has all right, power and authority required to execute
and deliver this Agreement and to perform the terms of this
Agreement.
4
SECTION 8
NO BROKERS.
Each of Transferor and Transferee further represent and warrant to the
other that it has not had any dealings with any agent or broker in connection
with the negotiation or performance of this Agreement and each agrees to
indemnify and hold the other harmless from any commission, charges or
compensation paid to or otherwise claimed by any agent or broker with respect to
this Agreement or the transactions contemplated hereunder.
SECTION 9
FURTHER ASSURANCES.
Transferee and Transferor shall execute any and all documents and perform
any and all acts reasonably necessary or appropriate to consummate the purchase
and sale of the Loan, and the Loan Documents pursuant to the terms and
conditions set forth in this Agreement.
SECTION 10
SURVIVAL OF REPRESENTATIONS.
All representations, warranties, covenants, agreements, terms and
conditions made herein will survive the execution, delivery and closing of this
Agreement and all transactions contemplated hereunder.
SECTION 11
NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any person other than
the parties to it and their respective permitted successors and assigns, nor is
anything in this Agreement intended to relieve or discharge any obligation of
any third person to any party hereto or give any third person any right of
subrogation or action against any party to this Agreement.
SECTION 12
DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this Agreement are
inserted for convenience and will not be deemed to affect the meaning or
construction of any of the provisions hereof.
5
SECTION 13
CONSTRUCTION.
The parties agrees that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed
in the interpretation of this Agreement.
SECTION 14
TERMS GENERALLY.
The defined terms in this Agreement will apply equally to both the singular
and the plural forms of the terms defined. Whenever the context may require, any
pronoun will include the corresponding masculine, feminine and neuter forms. The
words "include," "includes" and "including" when used in this Agreement will be
deemed to be followed by the phrase "without limitation." The words "approval"
and "notice" when used in this Agreement will be deemed to be preceded by the
word "written." All references to "Exhibit" or "Exhibits" in this Agreement mean
the exhibits attached hereto, the terms and conditions of which are made a part
hereof. All references to "Section" or "Sections" in this Agreement mean the
applicable section of this Agreement unless otherwise specified.
SECTION 15
ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the purchase and sale of the Loan, and the Loan Documents, and
supersedes any other agreements, negotiations, communications, understandings
and commitments whether written or oral, relating thereto. This Agreement may be
modified only by a writing signed by all parties to this Agreement.
SECTION 16
SEVERABILITY.
If any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Agreement.
6
SECTION 17
TIME OF THE ESSENCE.
Time is of the essence in the execution and performance of this Agreement
and each of its provisions.
SECTION 18
COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall constitute one and the same agreement, and either party hereto may execute
this Agreement by signing such counterpart.
SECTION 19
GOVERNING LAW.
This Agreement shall be interpreted, construed and governed by the laws of
the State of Nevada.
SECTION 20
ATTORNEY FEES.
In the event of any litigation or other action to construe, interpret or
enforce this Agreement, the prevailing party shall be entitled to recover
reasonable attorney and expert witness fees and costs.
SECTION 21
SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 22
NOTICES.
All notices to be given under this Agreement shall be in writing and
either:
A. Sent by certified mail, return receipt requested, in which case
notice shall be deemed delivered three (3) business days after
deposit, postage prepaid in the United States Mail,
B. Sent by a nationally recognized overnight courier, in which case
notice shall be deemed delivered one (1) business day after
deposit with this courier, or
7
C. By telecopy or similar means, if a copy of the notice is also
sent by United States Certified Mail, in which case notice shall
be deemed delivered on transmittal by telecopier or other similar
means provided that a transmission report is generated by
reflecting the accurate transmission of the notices, as follows:
If to Transferor: Las Vegas Golf Center, L.L.C.
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
with a copy to: Xxxxxx X. Xxxx
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
If to Transferee: ILX Resorts Incorporated
Attention: Xxxxxx X. Xxxxxxx, Chairman
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
with a copy to: Xx Xxxxxxx, Esq.
Xxxxxxx Law Offices, P.C.
0000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
These addresses may be changed by written notice to the other party, provided
that no notice of a change of address shall be effective until actual receipt by
the parties of the notice. Copies of notices are for informational purposes
only, and a failure to give or receive copies of any notice shall not be deemed
a failure to give notice.
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement the date
first above set forth.
TRANSFEROR:
LAS VEGAS GOLF CENTER, L.L.C.,
a Delaware limited liability company
By: ______________________________
Its: _____________________________
Date: ____________________________
MEMBERS:
Each of the Members sign below with respect to the Representations and
Warranties set forth in Paragraph 7.1:
__________________________________
Xxxxxxxx X. Xxxx
Date: ____________________________
__________________________________
Xxxxxx X. Xxxx
Date: ____________________________
__________________________________
Xxxxx Xxxxxx Xxxx
Date: ____________________________
TRANSFEREE:
ILX RESORTS INCORPORATED, an
Arizona corporation
By: _____________________________
Xxxxxx X. Xxxxxxx
Its: Chairman of the Board
Date: ____________________________
9
