Limited Liability Company Interest Purchase Agreement - United Support Association Inc. and Wespac Holdings LC
LIMITED LIABILITY COMPANY INTEREST PURCHASE AGREEMENT
THIS LIMITED LIABILITY COMPANY INTEREST PURCHASE AGREEMENT (this
"Agreement") is entered into as of this 4th day of Feb, 1997, by and between
United Support Association, Inc., a Nevada corporation ("Buyer") and Wespac
Holdings, L.C., a Utah limited liability company ("Seller").
RECITALS
A. Seller owns an eight and 88/100 percent (8.88%) capital and profits
membership interest (the "Interest") in Park City Hotel Partners, L.C., a
Utah limited liability company (the "Company").
B. Seller desires to sell the Interest to Buyer, and Buyer desires to
buy from Seller the Interest pursuant to the terms and subject to the
conditions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing Recitals and the mutual promises
contained herein, the parties agree as follows:
1. PURCHASE AND SALE OF INTEREST. Upon the terms and subject to the
conditions set forth in this Agreement, Seller shall sell, assign, transfer
and convey to Buyer, and Buyer shall purchase, obtain and acquire from
Seller, all of Seller's right, title and interest in and to the Interest.
2. PURCHASE PRICE. In consideration of and in exchange for the
Seller's sale, assignment, transfer and conveyance of the Interest, Buyer
agrees to pay Seller Two Hundred Thousand Dollars ($200,000.00) payable as
follows:
(a) $25,000.00 down payment at the time of the execution and
delivery of this Agreement; and
(b) A promissory note in the face amount of $175,000.00 with
interest at 9% per annum on the unpaid balance payable in 18 equal monthly
installments of $10,429.59 each. A copy of the Promissory Note is attached as
EXHIBIT A.
(c) The promissory note shall be secured by a personal guarantee
of Wade Cook, a copy of which is attached as EXHIBIT B, and a perfected
security interest on the Interest to be entered into at such time as the
Interest is assigned and transferred under Section 4 hereof. A copy of the
Security Agreement is attached as EXHIBIT C.
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3. CLOSING. Subject to the satisfaction of the conditions set forth in
this Agreement and compliance with the other provisions hereof, the closing
of the transactions contemplated by this Agreement (the "Closing") shall take
place at _______________ on ___________ at 10:00 a.m., local time, or at such
other place and time as shall be mutually agreeable to the parties hereto
(the "Closing Date"). At the Closing, Buyer shall deliver the down payment
and promissory note to Seller as provided in Section 2 above. At the time of
the completion of the conditions of Section 4, Seller shall deliver an
assignment of the Interest to Buyer.
4. ASSIGNMENT OF INTEREST. From and after the Closing, all equitable
rights, title and interests in the Interest shall be owned, held and
exercised by Buyer. All capital calls, obligations and liabilities, if any,
under the Company's Operating Agreement shall be the sole responsibility of
Buyer. The Company is in the process of obtaining permanent financing on the
hotel being constructed. Following the obtaining of the permanent financing,
Seller will deliver to Buyer an executed Assignment of Membership Interest
relating to the Interest, a copy of which is attached as EXHIBIT D.
5. INVESTMENT REPRESENTATIONS OF BUYER. Buyer hereby represents and
warrants to Seller as follows:
(a) Buyer understands that the Interest has not been registered
under the Securities Act of 1933 (the "1933 Act") or the laws of any state,
and the transactions contemplated hereby are being undertaken in reliance
upon an exemption from the registration requirements of the 1933 Act, and
reliance upon such exemption is based upon Buyer's representations,
warranties and agreements contained in this Agreement.
(b) Buyer has received and carefully reviewed all information
necessary to enable Buyer to evaluate his investment in the Company. Buyer
has been given the opportunity to ask questions of and to receive answers
from the Company concerning its business and the Interest, and to obtain such
additional written information necessary to verify the accuracy thereof.
(c) Buyer is aware that the purchase of the Interest is
speculative and involves a high degree of risk. Buyer is aware that there is
no guarantee that Buyer will realize any gain from his acquisition of the
Interest. Buyer further understands that Buyer could lose the entire amount
of his investment.
(d) Buyer understands that no federal or state agency or other
authority has made any finding or determination regarding the fairness of the
offer, sale and/or issuance of the Interest or has made any recommendation or
endorsement thereof or has passed in any way upon this Agreement.
(e) Buyer: (i) is acquiring the Interest solely for Buyer's own
account for investment purposes only and not with a view toward resale or
distribution thereof, in whole or in part; (ii) has no contract,
undertaking, agreement or other arrangement, in existence or contemplated, to
sell, pledge, assign or otherwise transfer the Interest to any other person;
and (iii) agrees not to sell or otherwise transfer the Interest unless and
until it is
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subsequently registered under the 1933 Act and any applicable state
securities laws, or unless an exemption from any such requirement is
available.
(f) Buyer is financially able to bear the economic risk of an
investment in the Interest, including the ability to hold the Interest
indefinitely and to afford a complete loss of his investment in the Interest.
Buyer has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of the acquisition of the
Interest.
6. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the transactions contemplated by this Agreement is subject to the
fulfillment of each of the following conditions:
(a) On and as of the Closing Date, Seller shall be the sole legal
and beneficial owner of the Interest, which shall be free and clear of all
claims, liens, mortgages, charges, security interests, encumbrances and other
restrictions and limitations of any kind whatsoever.
(b) By the Closing Date, any and all necessary consents,
authorizations, orders or approvals shall have been obtained.
(c) Neither the execution or delivery of this Agreement nor the
performance of its obligations hereunder will conflict with or result in a
breach of or constitute a default under or result in the creation of or an
imposition of a lien upon any of the properties or assets of Seller or any
Agreement to which Seller may be a party or by which its property or assets
may be subject.
7. CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to the
fulfillment of each of the following conditions:
(a) By the Closing Date, any and all necessary consents,
authorizations, orders or approvals shall have been obtained.
(b) Neither the execution or delivery of this Agreement nor the
performance of its obligations hereunder will conflict with or result in a
breach of or constitute a default under or result in the creation of or an
imposition of a lien upon any of the properties or assets of Buyer or any
Agreement to which Buyer may be a party or by which its property or assets
may be subject.
8. FINDER'S FEE. For the expertise, time, efforts and expense incurred
by Paul E. Christensen and Rex K. Griffiths in bringing together the Buyer
and Seller and obtaining the various approvals of the transaction by the
members of the Company, Buyer shall pay to Paul E. Christensen and Rex K.
Griffiths at Closing a commission of Twenty Five Thousand Dollars ($25,000)
($12,500 to Paul E. Christensen and $12,500 to Rex K. Griffiths). Except as
provided by this Section 8, no other commissions, fees or
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compensation shall be due as a result of this Agreement or the transactions
contemplated herein.
9. MISCELLANEOUS.
(a) This Agreement represents the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and
supersedes all prior agreements with respect thereto, whether written or oral.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Utah, without regard, however, to such
jurisdiction's principles of conflict of laws.
(c) This Agreement may be executed in counterparts, each of which
shall be an original, but all of which shall constitute but one Agreement.
DATED as of the date of first written above.
UNITED SUPPORT ASSOCIATION, INC.,
a Nevada corporation
By: /s/ Wade B. Cook
--------------------------
Wade B. Cook, President
---------------
WESPAC HOLDING, L.C.,
a Utah limited liability company
By: /s/ Paul E. Christensen
------------------------------------
Paul E. Christensen, a member
By: /s/ Rex K. Griffith
----------------------------------
Rex K. Griffith, a member
<PAGE>
Exhibit A
PROMISSORY NOTE
Amount: $175,000.00 Date: January 31, 1997
Place: Salt Lake City, Utah
FOR VALUE RECEIVED, the undersigned, promises to pay to Wespac Holdings,
L.C., a Utah limited liability company or order at 2932 Chippewa Way, Provo,
Utah 84604 or such other place as the holder may designate in writing, the
principal sum of One Hundred Seventy-Five Thousand Dollars ($175,000.00),
together with interest thereon computed at the rate of nine percent (9%) per
annum on the unpaid principal balance owing from time to time and charged on
actual days the loan is outstanding. The principal and interest hereunder
shall be payable in eighteen (18) equal monthly installments of Ten Thousand
Four Hundred Twenty-Nine and 59/100 Dollars ($10,429.59) each, with the first
installment due 30 days from the date hereof, and each installment thereafter
due and on the same day of each succeeding month thereafter until paid in
full.
An installment payment which is paid in full within ten days after any
scheduled due date is a timely payment, and no late fee will be assessed for
that payment. If, however, a payment is not paid in full within ten days of a
scheduled payment date, a late fee will be charged in the amount of $500.00.
If any payment comes due on a day which is not a business day, it shall be
due the next business day.
All payments received shall be applied first to the amounts advanced by
holder to protect its security, if any, then to accrued late fees, if any,
and thereafter to the payment of interest and then to the payment of
principal. If any payment hereunder is not paid within thirty days from the
due date thereof, or if there is an event of default under the Security
Agreement, then, at the option of the holder hereof, all obligations of
principal, interest, costs and fees hereunder shall become immediately due and
payable without presentment for payment, diligence, grace, exhibition of this
Note, protest, dishonor, demand or notice of any kind, all of which are
hereby expressly waived, and shall thereafter bear interest both before and
after judgment until paid in full at the rate of twelve percent (12%) per
annum. Maker shall pay all expenses and fees, including reasonable attorneys'
fees and court costs, incurred in the collection of this Note and/or incurred
in any bankruptcy or insolvency proceeding. Maker may prepay this Note at any
time without penalty.
Maker and all endorsers or guarantors of this Note waive presentment,
demand, notice, protest and all other notices in connection with the
delivery, acceptance,
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default or enforcement of this Note and agree that holder may, from time to
time, without their consent, renew, modify or extend performance of
obligation of Maker hereunder, and also each specifically consent to the
release of a part of all of any collateral that may secure this Note and to
the addition or release of any party primarily or secondarily liable hereon.
The interpretation, construction and enforcement of this Note shall be
governed by the laws of the State of Utah.
If any provision or portions thereof in this Note or the Security
Agreement is found by any court to be unenforceable or to violate any law or
juridical decision, or if such court should declare such portion or
provision to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are
legal, valid and enforceable and that the remainder of this Note and the
Security Agreement shall be construed as if such illegal, invalid, unlawful,
void or unenforceable portion, provision or provisions were not contained
therein and that the rights, obligations and interests of the maker and
holder thereof, under the remainder of this Note and the Security Agreement,
shall continue in full force and effect.
IN WITNESS WHEREOF, Maker has caused this Note to be executed as of the
date set forth above, and as authorized in accordance with the duly and
regularly adopted and existing resolution of the Board of Directors of the
Maker.
MAKER:
UNITED SUPPORT ASSOCIATION, INC.,
a Nevada corporation
By: /s/ Wade B. Cook
---------------------
Wade B. Cook, Pres.
-----------
<PAGE>
Salt Lake City, Utah
Wade B. Cook January 31, 1997
GUARANTY
For and in consideration of the sum of Ten Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Wade B. Cook ("Guarantor") hereby unconditionally guarantees to
Wespac Holdings, L.C., a Utah limited liability company ("Wespac"), the due
and punctual payment, performance and observance by United Support
Association, Inc., a Nevada corporation ("United") of each and every
obligation, covenant and condition to be performed and observed by United, to
the same extent as if Guarantor had directly entered into those transactions
with Wespac, under that certain Limited Liability Company Interest Purchase
Agreement and Promissory Note dated of even date herewith, between Wespac and
United, as the same may hereafter be extended or amended (collectively, the
"Obligations"), together with all costs and expenses (including reasonable
attorneys' fees) incurred by Wespac in enforcing its rights hereunder. This
Guaranty is a guarantee of payment and performance and not of collection.
Guarantor waives notice of any extension, modification, indulgence,
amendment, or variation of the terms of any such obligation or agreement of
United with Wespac, and the liability of Guarantor hereunder shall not be
affected by the insolvency, bankruptcy, or receivership of United. Notice of
any default of United shall, however, be promptly provided to Guarantor but
the failure to give such notice shall not affect Wespac's rights hereunder.
Guarantor shall not exercise any rights that it may acquire by way of
subrogation, by any payment made under this Guaranty or otherwise, until all
the Obligations have been paid in full. If any amount is paid to the
Guarantor on account of subrogation rights under this Guaranty at any time
when all the Obligations have not been paid in full, the amount shall be held
in trust for the benefit of Wespac and shall be promptly paid to Wespac to be
credited and applied to the Obligations when due. If the Guarantor makes
payment to Wespac of all or any part of the Obligations and all the
Obligations are paid in full, and so long as no other sums are owing
hereunder or in connection with the Obligations, Wespac shall, at the request
of Guarantor, execute and deliver to Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations
resulting from the payment.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Obligation is rescinded or
must otherwise be returned by
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Wespac upon the insolvency, bankruptcy or reorganization of United or
otherwise, all as though such payment had not been made.
Absent the prior written consent of Guarantor, Wespac shall not assign or
transfer in whole or in part, any of its rights herein.
The construction and enforcement of this Guaranty shall be governed by
the internal laws of the State of Utah.
IN WITNESS WHEREOF, Wade Cook has caused this Guaranty to be executed
this 31 day of January, 1997.
/s/ WADE B. COOK
----------------------------------
Wade B. Cook
2
<PAGE>
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made effective as of the 31 day
of January, 1997, by and between United Support Association, Inc., a Nevada
corporation ("Maker") and Wespac Holdings, L.C., a Utah limited liability
company ("Wespac").
WHEREAS, Maker has purchased membership interests in Park City Hotel
Partners, L.C., a Utah limited liability company (the "Company") from Wespac
pursuant to a Limited Liability Company Interest Purchase Agreement dated the
date hereof (the "Purchase Agreement") and owe Wespac the principal sum of
One Hundred Seventy-Five Thousand Dollars ($175,000), as evidenced by that
certain promissory note between Maker, as maker, and Wespac of even date
herewith (the "Note").
WHEREAS, pursuant to the Purchase Agreement, Maker agreed to grant Wespac
a security interest to secure the performance by Maker of its obligations
under the Note and the Purchase Agreement.
WHEREAS, the parties desire to memorialize the grant of such security
interest by executing this Agreement.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. COLLATERAL. Maker's performance hereunder and under the Note and
Purchase Agreement shall be secured by, and Maker hereby specifically grants
to Wespac a continuing security interest in and to, and lien upon, the
property more particularly described on Exhibit "1" attached hereto (the
"Collateral"). Maker agrees to execute and deliver to Wespac a UCC-1
financing statement, and shall perform, in a timely fashion, all additional
acts, as from time to time may be necessary in the opinion of counsel to
Wespac, to perfect, verify and acknowledge the security interest of Wespac in
the Collateral.
2. DEFAULT. It shall be an event of default hereunder if (i) Maker shall
fail to make any payment called for by the Note and any agreements or
documents executed and delivered in connection therewith, or (ii) any party
other than Wespac shall default in the performance of any obligation under
the Note and the Purchase Agreement. Any default hereunder shall be deemed to
be a default under the Note and this Agreement, and vice versa.
<PAGE>
3. REMEDIES UPON DEFAULT. Upon the occurrence of any event of default,
Wespac may declare immediately due and payable all amounts under the Note,
including all accrued interest and late fees thereon, and shall have all of
the remedies of a secured party under the laws of the State of Utah.
4. RELEASE OF LIEN. Upon payment in full of all obligations of Maker to
Wespac, and the performance by Maker of all obligations imposed upon it by
the Note, and the Purchase Agreement, this Agreement shall be terminated, the
liens and security interests arising hereunder shall be terminated and
released and Wespac shall take any action necessary to evidence such
release.
5. OBLIGATIONS OF WESPAC. Wespac, by accepting the security interest
provided for herein, shall not be subject to any obligation, liability or any
duty to perform any of the terms, covenants, provisions, conditions or
agreements made or assumed by Maker in connection with Maker's interest in
the Collateral, but such obligations shall continue to be performed by Maker
as though this Agreement had not been made. Wespac shall have the right,
however, upon any event of default hereunder, to assume any and all of such
obligations, liabilities or duties, and shall be entitled to the benefits of
any such assumption.
6. MISCELLANEOUS.
(a) GOVERNING LAW. The law of the State of Utah shall govern the
interpretation and enforcement of this Agreement.
(b) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
(c) SEVERABILITY; INTEGRATION. The inapplicability or
unenforceability of any provision of this Agreement shall not limit or impair
the operation or validity of any other provision of this Agreement. This
Agreement, together with the documents executed in connection herewith
(including the Note and any personal guarantees), constitute the entire
agreement between the parties with respect to the subject matter hereof, and
no modification or waiver shall be effective unless in writing and signed by
the party to be charged.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an
original, but all of which shall together constitute one and the same
instrument. The agreement may be executed by facsimile signature, and such
execution shall be deemed to have the same force and effect as original
signatures.
(e) ASSIGNABILITY. The rights of Westpac under this Agreement are
assignable in part or wholly, and any assignee of Wespac shall succeed to and
be possessed of the rights of Westpac to the extent of the assignment made.
The rights and obligations of Maker hereunder shall not be assignable without
the prior written consent of Westpac,
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and any attempt by Maker to assign its rights and obligations hereunder
without such consent shall be a default hereunder.
(f) WAIVER OF DEFAULT. The waiver by Wespac of any breach of default
by Maker under any of the terms of this Agreement shall not be deemed to be a
waiver of any subsequent breach or default on the part of Maker under the
same.
7. ATTORNEYS' FEES. In the event of any litigation by any party hereto
to enforce the terms of this Agreement, the prevailing party in such
litigation shall be entitled to receive from the other party payment of
attorneys' fees incurred (before or after the commencement of such
litigation) by the prevailing party.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
UNITED SUPPORT ASSOCIATION,
INC., a Nevada corporation
By: /s/ Wade B. Cook
----------------------------------
Wade B. Cook, Pres
-------------------
WESPAC HOLDINGS, L.C., a
Utah limited liability company
By: /s/ Paul E. Christensen
----------------------------------
Paul E. Christensen, Member
By: /s/ Rex K. Griffiths
----------------------------------
Rex K. Griffiths, Member
3
<PAGE>
EXHIBIT "1"
SECURITY AGREEMENT
DESCRIPTION OF COLLATERAL
All of Maker's right, title and interest as a member of and in Park City
Hotel Partners, L.C., a Utah limited liability company (the "Company") which
shall include, without limitation, Maker's eight and 88/100 percent (8.88%)
capital and profits interest in the Company, Maker's capital account balance
in the Company, Maker's distribution and liquidation rights in the Company and
Maker's voting and management rights and powers in the Company.
4
<PAGE>
Exhibit D
ASSIGNMENT OF MEMBERSHIP INTEREST
FOR VALUE RECEIVED, Wespac Holdings, L.C., a Utah limited liability company
("Assignor"), herewith sells, assigns, transfers and conveys to United Support
Association, Inc., a Nevada corporation ("Assignee"), the entirety of Assignor's
right, title and interest as a member of and in Park City Hotel Partners, L.C.,
a Utah limited liability company (the "Company"), which shall include, without
limitation, Assignor's eight and 88/100 percent (8.88%) capital and profits
interest in the Company, Assignor's capital account balance in the Company,
Assignor's distributions and liquidation rights in the Company and Assignor's
voting and management rights and powers in the Company.
This Assignment of the Membership Interest is made, delivered and shall be
effective on the date of this Assignment in accordance with and in satisfaction
of the requirements of Article VII of the Operating Agreement of the Company
dated as of October 4, 1995.
IN WITNESS WHEREOF, Assignor has executed this Assignment by and through
its members this 3rd day of February, 1997.
WESPAC HOLDINGS, L.C., a Utah
limited liability company
By /s/ Paul E. Christensen
-------------------------------------
Paul E. Christensen, Member
By /s/ Rex K. Griffiths
-------------------------------------
Rex K. Griffiths, Member
<PAGE>
Acknowledged and approved by Park City Hotel Partners, L.C., and its
members this 3rd day of February, 1997 that United Support Association, Inc.,
a Nevada corporation is and at all times hereunder shall be a substituted
member of the Company as provided by Section 7.3 of the Operating Agreement
of the Company dated as of October 4, 1995 with all rights, title and
interest in the Company provided therein.
PARK CITY HOTEL PARTNERS, L.C.,
A UTAH LIMITED LIABILITY COMPANY
BY: ITS MEMBERS
KJ HOTEL PARTNERS, L.C.,
A UTAH LIMITED LIABILITY COMPANY
By: Western States Lodging and Development,
L.C., a Utah limited liability company
By: The Miles Group, L.C., a Utah
limited liability company
By: /s/ Richard Miles
--------------------------------
Richard Miles, Member
By: /s/ Stephen Miles
--------------------------------
Steven Miles, Member
By: EXMAR Company, L.C., a Utah
limited liability company
By: /s/ Gary K. Griffiths
--------------------------------
Gary K. Griffiths, Member
By: /s/ Laura Jo Griffiths
--------------------------------
Laura Jo Griffiths, Member
By: /s/ David R. Webster
--------------------------------
David Webster, Member
By: /s/ Sylvia Webster
--------------------------------
Sylvia Webster, Member
2
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LODGING DEVELOPMENT COMPANY,
L.C., A UTAH LIMITED LIABILITY COMPANY
By: /s/ Thomas A. Hulbert
--------------------------------
Thomas A. Hulbert, Member
By: /s/ Heather Hulbert
--------------------------------
Heather Hulbert, Member
WESPAC HOLDINGS, L.C., A UTAH LIMITED
LIABILITY COMPANY
By: /s/ Paul E. Christensen
--------------------------------
Paul E. Christensen, Member
By: /s/ Rex K. Griffiths
--------------------------------
Rex K. Griffiths, Member
3