Exhibit 10.1
PURCHASE AND SALE AGREEMENT
FOR
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
TABLE OF CONTENTS
Purchase and Sale Agreement....................................................1
PRICE AND TERMS................................................................1
Section 1. Sale and Purchase ..................................................2
Section 2. Purchase Price: ▇▇▇▇▇▇▇ Money.......................................3
Section 3. Title Insurance.....................................................3
Section 4. Survey..............................................................4
Section 5. Due Diligence.......................................................4
Section 6. Prorations..........................................................4
Section 7. Representations and Warranties......................................5
Section 8. Close of Escrow.....................................................8
Section 9. "AS IS Condition."..................................................9
Section 10. Notices............................................................9
Section 11. Commissions.......................................................10
Section 12. Successors and Assigns............................................10
Section 13. Remedies..........................................................10
Section 14. Condemnation/Casualty.............................................11
Section 15. Inspections and Documents.........................................12
Section 16. Miscellaneous.....................................................12
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made with reference to
the following definitions and terms, subject to such further qualifications as
are expressly hereinafter set forth:
Name & Address ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
of Project: Sedona, Arizona
Agreement Date: October __, 2000 (to be completed by Buyer
only upon signing of this Agreement by Buyer
which will sign this Agreement after each of
the Sellers have signed it).
Buyer Notice Address: Name: ILX Resorts Incorporated,
an Arizona corporation
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Seller Notice Address: Name: ▇▇▇▇ ▇. ▇▇▇, M.D.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Address: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PRICE AND TERMS
A. PURCHASE PRICE: $1,010,000.00 ("Purchase Price") payable by Buyer at closing
in cash, by certified check or wire transfer of good funds.
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B. OPENING OF ESCROW: That date on which Buyer deposits with Escrow Agent all
originals of this Agreement fully executed by Buyer and Seller ("Opening of
Escrow Date").
C. DUE DILIGENCE PERIOD: A period expiring 10 business days after the Opening of
Escrow Date ("End of the Due Diligence Period").
D. CLOSING DATE (SEE ALSO SECTION 8.1): Thirty (30) business days after the end
of the Due Diligence Period ("Closing Date").
E. PERSONAL PROPERTY: This Agreement includes all personal property owned by
Seller located on the Property and used in the operation of the Property as of
the Agreement Date.
F. ESCROW AGENT:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Capital Title Agency
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
G. TITLE COMPANY: Capital Title Agency, Inc.
H. BROKERS (see Section 11).
SECTION 1. SALE AND PURCHASE.
1.1 Property. Seller agrees to sell, convey and assign to Buyer and Buyer
agrees to purchase and accept from Seller, for the Purchase Price and subject to
the terms and conditions herein set forth, Seller's entire right, title and
interest in and to the real Property legally described in Exhibit A attached
hereto and further described below (collectively the "Property"). The Property
includes all improvements of each and every kind located on the Property which
is a part of the Property. All tangible and intangible personal property,
including all equipment, trade name and telephone numbers, and contracts of any
kind owned by Seller on the Closing Date and attached to or used in connection
with the land or improvements and the ownership, maintenance or operation
thereof (collectively the "Personal Property"). The two bronze statues located
at the Property courtyards are included in Personal Property. Seller's office
furniture, files, web-site, miscellaneous cleaning supplies and the items
reflected on Exhibit B to this Agreement are not included in the Personal
Property and such items shall be removed by Seller from the Property on or
before the Closing Date.
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1.2 TITLE COMMITMENT. The sale of the Property is subject to matters shown
in Schedule B, Section 2 of the Title Commitment of Capital Title Agency, Inc.
("Commitment") (see Section 3);; zoning laws, restrictions, and stipulations,
subdivision regulations and other laws and ordinances regulating the use of or
improvements to the Property.
SECTION 2. PURCHASE PRICE: ▇▇▇▇▇▇▇ MONEY. The Purchase Price shall be paid as
follows:
2.1.▇▇▇▇▇▇▇ MONEY. Within one (1) business day of signing this Agreement by
Buyer, it shall deliver to the Escrow Agent the sum of $70,000 as the ▇▇▇▇▇▇▇
money deposit by cashier's check or federal wire transfer of funds payable to
the Escrow Agent ("▇▇▇▇▇▇▇ Money").
2.2 ESCROW AGENT. The parties hereby designate ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Capital
Title Agency, Inc. as the Escrow Agent and the Title Company, respectively. The
Escrow Agent shall hold the ▇▇▇▇▇▇▇ Money in escrow, invest the same in an
interest-bearing account, and pay or apply the same in accordance with the terms
hereof.
2.3 CLOSING FUNDS. The cash funds necessary to close escrow (plus or minus
prorations and credits as expressly provided for in Section 6 below) shall be
paid at Closing by Buyer in immediately available funds, by cashier's check or
federal wire transfer to the Escrow Agent pursuant to instructions consistent
with this Agreement.
2.4 ESCROW AGENT DUTIES. The parties acknowledge that the Escrow Agent is
acting solely as a stakesholder at their request and for their convenience; that
the Escrow Agent shall not be deemed to be the agent of either of the parties;
and that the Escrow Agent shall not be liable to either of the parties for any
action or omission on its part taken or made in good faith, and not in disregard
of this Agreement, but shall be liable for its negligent acts and for any loss,
cost or expense incurred by Seller or Buyer resulting from the Escrow Agent's
mistake of law respecting the scope or nature of Escrow Agent's duties
hereunder. Seller and Buyer shall jointly and severally indemnify and hold the
Escrow Agent harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the performance of the
Escrow Agent's duties hereunder, except with respect to actions or omissions
taken or made by the Escrow Agent in bad faith, in disregard of this Agreement
or involving negligence on the part of the Escrow Agent.
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SECTION 3. TITLE INSURANCE.
3.1 TITLE COMMITMENT. Buyer accepts the Commitment attached as Exhibit C to
this Agreement.
3.2 NO ADDITIONAL LIENS. Seller shall not place, permit, or cause to be
placed any liens or encumbrances on the title to the Property from the date of
this Agreement through Close of Escrow or thereafter. If Seller places, permits,
or causes a lien or encumbrance on the Real Property, contrary to the provisions
of this Agreement, which can be removed by the payment of money, Escrow Agent is
hereby expressly authorized, directed, and instructed to pay such monies in
order to remove the lien or encumbrance at Close of Escrow from monies otherwise
payable to Seller at Close of Escrow, and the net proceeds otherwise available
to Seller at Close of Escrow shall be reduced accordingly.
SECTION 4. SURVEY. No survey required.
SECTION 5. DUE DILIGENCE.
5.1 DUE DILIGENCE PERIOD. Buyer shall have ten (10) business days after the
Opening of Escrow Date to review and inspect the Property and accept or reject
the Property for any reason whatsoever including but not limited to the Buyer
arranging financing on terms solely acceptable to Buyer at its discretion.
5.2 PHASE ONE ENVIRONMENTAL REPORT. During the first five (5) business days
of the Due Diligence Period, Seller shall provide Buyer with an exact copy of
the most recent Phase One Environmental Report prepared for the benefit of the
Seller, if one exists.
5.3 REAL ESTATE TAX BILLS. During the first five (5) days of the Due
Diligence Period, Seller shall provide Buyer with exact copies of the most
recent real estate tax bills.
SECTION 6. PRORATIONS.
6.1 SETTLEMENT STATEMENT. Escrow Agent shall prepare a pro forma settlement
statement and circulate same to the parties at least five (5) business days
prior to the Closing Date reflecting all proposed prorations for mutual review
by the parties.
6.2 TAXES AND ASSESSMENTS. All real property taxes, if any, and all
occupancy taxes, shall be prorated between the parties as of the Closing Date.
For the tax year in which escrow closes, Seller shall be charged and Buyer shall
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be credited at the Close of Escrow with an amount equal to Seller's prorated
share for such tax year (based on the number of days the Property is owned by
Seller in such tax year) of all Property taxes applicable to the Property based
upon the actual figures, and based on the most recent tax rate as then
determined. If the actual real estate taxes are later determined to be different
from those upon which the proration provided for herein was based, within thirty
(30) days following the written request of either party, Seller and Buyer shall
subsequently adjust the difference with a reconciling payment to be made by one
party to the other outside of escrow based upon the actual figures. Seller shall
pay all assessments in full from its sales proceeds.
6.3 ESCROW/TITLE/RECORDING FEES. All escrow fees and recording fees shall
be shared equally by Buyer and Seller provided, however, Seller shall pay for
the cost of recording the Warranty Deed. Seller shall pay all fees and premiums
with respect to issuance of preliminary title reports, title insurance
commitments and standard coverage owner's title insurance policy to be issued to
Buyer. Subject to compliance at Buyer's expense with all additional requirements
of Escrow Agent (subject to the good faith cooperation of Seller regarding such
additional requirements), Buyer may request the issuance at Close of Escrow of
an extended coverage owner's policy of title insurance in lieu of that to be
provided by Seller hereunder. Buyer shall be responsible for any excess premium
over standard coverage required for extended coverage title insurance, for the
cost of all endorsements, and for any lender's policy of title insurance.
6.4 DEDUCTIONS AND DEPOSITS. All closing costs and prorations otherwise
payable by Seller shall be deducted from Seller's proceeds at Close of Escrow.
Buyer agrees to deposit with Escrow Agent an amount in addition to the Purchase
Price sufficient to pay all closing costs and prorations payable by Buyer
hereunder. Seller shall be responsible to pay, and there shall be deducted from
Seller's proceeds at the Close of Escrow, any and all prepayment penalties or
other charges to pay off any existing loans on the Property.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
7.1 BY BUYER. Buyer represents and warrants to Seller as follows:
(a) Buyer, and each of the persons executing this Agreement on of
Buyer, represent and warrant that (i) Buyer is a duly authorized and existing
entity (e.g., corporation, partnership, limited liability company, or trust) in
good standing; (ii) Buyer is qualified to do business in the State of Arizona;
(iii) Buyer has full right and authority to enter into this Agreement and to
consummate the transactions contemplated herein; (iv) each of the persons
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executing this Agreement on behalf of Buyer is authorized to do so; and (v) this
Agreement constitutes a valid and legally binding obligation of Buyer,
enforceable in accordance with its terms. Buyer will provide to Escrow Agent and
Seller any documents reasonably required by Escrow Agent regarding Buyer's
authority to enter into and close the transaction contemplated by this
Agreement.
(b) There are no legal or administrative proceedings pending or, to
the best of Buyer's knowledge, threatened against or affecting Buyer that would
affect Buyer's legal authority or financial ability to comply with this
Agreement and close the transaction described herein in accordance with the
terms hereof.
(c) Buyer has received from Seller a Flood Hazard Status Report in the
form attached as Exhibit D to this Agreement. During the Due Period, Buyer shall
investigate the floor hazard status. If Buyer does not terminate the Agreement
on or before the end of the Due Diligence Period, Buyer shall have waived any
claim arising out of the facts reflected on the Flood Hazard Status Report.
7.2 BY SELLER. Seller represents and warrants to Buyer as follows:
(a) Seller, and each of the persons executing this Agreement on behalf
of Seller, represent and warrant that this Agreement constitutes a valid and
legally binding obligation of Seller, enforceable in accordance with its terms.
Seller will provide to Escrow Agent and Buyer any documents reasonably required
by Escrow Agent regarding Seller's authority to enter into and close the
transaction contemplated by this Agreement.
(b) Seller, to the best of its actual knowledge, without due diligence
or further inquiry, represents and warrants to Buyer as follows:
(i) Seller has received no notice of litigation, including any
action of condemnation or eminent domain, or violations of law, that would run
with the Property as of the Closing Date.
(ii) There are no legal or administrative proceedings pending or,
to the best of Seller's knowledge, threatened against or affecting Seller that
would affect Seller's legal authority or financial ability to comply with this
Agreement and close the transaction described herein in accordance with the
terms hereof.
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(iii) Seller has not disposed of or stored on the Property or any
part thereof any "hazardous material" as defined below. For purposes of this
Agreement, "hazardous material" means and includes any petroleum product and any
hazardous substance or any pollutant or contaminant defined as such in (or for
purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "Superfund" or "Superlien" law, the Toxic
Substances Control Act, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, or any substance or compound containing
PCB's, or any other hazardous, toxic or dangerous waste, substance or material.
Seller is not aware of any environmental issues which are not disclosed in the
Property condition report.
Seller hereby indemnifies Buyer and agrees to pay, defend,
and hold Buyer harmless from and against any and all losses, liabilities,
damages, injuries, costs, expenses, and claims of any and every kind whatsoever,
including reasonable attorneys' fees paid, incurred or suffered by, or asserted
against, Buyer for, with respect to, or as a direct or indirect result of, the
presence on or under the Property, as of Close of Escrow, of any hazardous
material, or the escape, seepage, leakage, spillage, discharge, emission, or
release from the Property into or upon any land, the atmosphere, or any
watercourse, body of water, or wetland of any hazardous material present on the
Property as of Close of Escrow, including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses, or claims asserted or arising
under the Comprehensive Environmental Response, Compensation and Liability Act,
any so-called "Superfund" or "Superlien" law, or any other federal, state, or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous material.
(iv) Through the Close of Escrow, Seller shall maintain property
and casualty insurance in force on the Property with policy limits of at least
One Million Dollars ($1,000,000.00).
(v) Except as disclosed to Buyer in writing, Seller does not have
knowledge of any condemnation, environmental, zoning or other land-use
regulation proceedings, either instituted, or planned to be instituted, which
would materially affect the use and operation of the Property for its intended
purpose or the value of the Property, nor has Seller received notice of any
special assessment proceedings affecting the Property. Specifically excluded
from this representation is a "shared parking" license currently in existence
between Seller and Buyer without which the Property may not have sufficient
parking to satisfy City of Sedona parking requirements.
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(vi) At the time of Close of Escrow, there will be no outstanding
contracts made by Seller for any improvements to the Property which have not
been fully paid for and Seller shall cause to be discharged all mechanics' or
materialmens' liens arising from any labor or materials furnished to the
Property prior to the time of Close of Escrow other than those relating to
obligations of Buyer hereunder.
(vii) Seller will make available to Buyer at Seller's address
indicated on page 1 hereof all of Seller's files and records relating to the
Property.
(viii) There are no sites of historical or archaeological
importance on the Property that in any way would impede, curtail, limit, or
restrict the development of the Property.
(ix) The only lease on the Property is a lease with "Said" ("Said
Lease"), a true and accurate copy of which is attached to this Agreement as
Exhibit E. Within five (5) business days after the Opening of Escrow Date,
Seller shall provide a fully-signed Said Lease to Buyer. So long as this
Agreement has not been terminated, Seller shall not (a) amend, waive any default
under, or in any way change the Said Lease or (b) enter into any new lease with
a tenant on the Property.
7.3. SURVIVAL. All representations, warranties and indemnifications given
by either party hereto under this Agreement are true on and as of the date so
made, will be true in all material respects as of the Close of Escrow and shall
survive the Close of Escrow and execution, delivery and recordation of the
Warranty Deed. In the event that any representation or warranty is untrue, the
other party shall have all rights and remedies available at law, in equity or as
provided in this Agreement.
SECTION 8. CLOSE OF ESCROW.
8.1 DOCUMENTS. Buyer and Seller shall pay all monies, execute and deposit
all documents, and complete all other obligations required hereunder in order to
consummate the purchase and sale of the Property on or before the Closing Date.
On the Closing Date, as a condition of Closing, Escrow Agent shall record, or
cause to be recorded, all necessary documents, issue its policy of title
insurance, and otherwise accomplish the provisions hereof so as to close the
transaction contemplated hereby (herein sometimes referred to alternatively as
the "Closing," or "Close of Escrow"). At the Closing, Seller shall deliver or
cause to be delivered the following properly executed and (where required)
acknowledged documents:
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8.1.1 A Warranty Deed for the Property in the Arizona statutory form,
subject only to (i) the title exceptions reflected in Schedule B, Section 2 of
Exhibit B to this Agreement; and (ii) the Said Lease.
8.1.2 A ▇▇▇▇ of Sale for the Personal Property in the standard Capital
Title form.
8.1.3 A Certification of Non-Foreign Status stating, under penalty of
perjury, that Seller is not a "foreign person" as that term is defined in
Section 1445 of the Internal Revenue Code of 1986, as amended.
8.2 FUNDS. At the Closing, Buyer shall deliver or cause to be delivered
funds sufficient to close the transaction contemplated hereby, by cashier's
check or federal wire transfer of funds to Escrow Agent pursuant to instructions
given by Escrow Agent.
8.3 OTHER DOCUMENTS. The parties shall tender at the Closing such other
documents as may be reasonably necessary or appropriate to complete the Closing.
8.4 RECORDATION. All of the above documents will be delivered to Escrow
Agent as closing agent, which shall record the documents to be recorded, deliver
to Seller by cashier's check or wire transfer Seller's proceeds of Closing, and
deliver the documents which are not to be recorded, only when the Title Company
is prepared to issue to Buyer the Owner's Title Policy subject only to the
Permitted Exceptions.
8.5 POSSESSION. Upon recording of the Warranty Deed, Seller shall deliver
to Buyer possession of the Property, subject only to the Permitted Exceptions.
8.6 FURTHER ACTS. In addition to the acts and agreements of Buyer and
Seller described herein, Buyer and Seller shall perform, execute and deliver or
cause to be performed, executed and delivered any and all further acts and
agreements as Escrow Agent may reasonably request to consummate the transaction
contemplated herein. This provision shall survive the Closing.
SECTION 9. "AS IS CONDITION." Buyer shall accept the Property in an "AS IS"
condition as long as the Property is in the same condition at the Closing as at
the end of the Due Diligence Period.
SECTION 10. NOTICES. Any notice required or permitted to be given under this
Agreement must be in writing and given by (a) facsimile transmission; (b)
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depositing same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested; (c) delivering same in person to such party; or (d) depositing same
into the custody of a nationally recognized overnight delivery service addressed
to the party to be notified. In the event of mailing, notices shall be deemed
effective three (3) days after posting; in the event of overnight delivery,
notices shall be deemed effective on the next business day following deposit
with the delivery service; in the event of personal service, notice shall be
deemed effective when delivered; in the event of facsimile transmission, upon
receipt (a written confirmation of successful transmission from the transmitting
facsimile machine being prima facie evidence of such receipt). For purposes of
notice, the addresses of the parties shall be as follows:
If to Buyer, to: The address shown on Page 1 hereof
With a copy to: ▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ Law Offices, P.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller, to: The address shown on Page 1 hereof
With a copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PPLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
From time to time, either party may designate another or additional addresses
for all purposes of this Agreement by giving the other party no less than three
(3) business days' advance notice of such change of address in accordance with
the notice provisions hereof.
SECTION 11. COMMISSIONS. Buyer and Seller each represent to the other that each
has not retained any real estate broker or any party entitled to a commission or
broker's fee in connection with the sale of the Property by Seller to Buyer, and
Buyer and Seller each agree to indemnify, protect, defend and hold the other
harmless for, from and against any expense, including, without limitation,
attorneys' and accountants' fees, claims, actions, suits or demands for payment
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of any commission, finder's fee or other sum initiated by any broker, commission
agent or other person which such party or its representatives has engaged or
retained. Notwithstanding anything in this Agreement to the contrary, the
representations and indemnities set forth in this paragraph shall survive any
termination of this Agreement.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding on the parties hereto and their respective heirs, legal
representatives, successors and assigns. Notwithstanding the foregoing, Buyer
shall have the right, without the consent of Seller, to assign its rights under
this Agreement to any corporation, partnership, or entity controlling,
controlled by, or under common control with Buyer, or in which Buyer is a
partner or member (which right shall include, but not be limited to, the right
to designate any such corporation, partnership, or entity as the party to take
title to the Property upon Close of Escrow). Upon any such assignment or
designation, the corporation, partnership, or other entity to which such rights
are assigned (or which is designated to take title to the Property) shall
succeed to all of Buyer's rights and obligations, and from the date of Buyer's
written notice to Seller of such assignment or designation, all references in
this Agreement to Buyer shall be deemed thereafter to be references to such
corporation, partnership, or other entity. Any other assignment of Buyer's
interest herein shall be subject to the prior written approval of Seller, which
approval shall not be unreasonably withheld.
SECTION 13. REMEDIES.
13.1 BUYER DEFAULT. If Buyer fails for any reason to close the transaction
described herein or otherwise defaults in the payment or performance of any
obligation set forth herein, Seller shall give Buyer written notice of the
default. If Buyer has not completely cured the default within ten (10) business
days after the date of Seller's notice, then Seller shall have the right to
terminate this Agreement by giving Buyer and the Escrow Agent written notice
thereof, in which event Seller shall be entitled to retain, as Seller's sole and
exclusive remedy, as liquidated damages, and not as a penalty, the ▇▇▇▇▇▇▇ Money
and all interest earned thereon; such amounts shall be released from escrow and
delivered immediately to Seller by the Escrow Agent without further instruction
from Seller or Buyer, and neither party shall have any further obligation
whatsoever to the other. Seller and Buyer acknowledge and agree that Seller's
damages in the event of any such default or breach by Buyer would be difficult
or impossible to determine and that under the circumstances existing on the
Contract Date, the amount of the ▇▇▇▇▇▇▇ Money and interest thereon is the best
and most accurate estimate by the parties of the damages that Seller would
suffer in the event of any such default or breach.
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13.2 SELLER DEFAULT. If Seller fails to perform any of its obligations or
agreements hereunder, Buyer shall give Seller written notice of the default. If
Seller has not completely cured the default within ten (10) business days after
the date of Buyer's notice, then Buyer may (i) terminate this Agreement by
notifying Seller thereof, in which event the ▇▇▇▇▇▇▇ Money and all interest
earned thereon shall be returned to Buyer; or (ii) bring legal action to enforce
specific performance of this Agreement.
13.3 NO FURTHER DUTIES. If Buyer terminates this Agreement pursuant to a
right granted to Buyer under this Agreement, neither party hereto shall have any
further rights, duties or obligations hereunder (except as otherwise expressly
provided in this Agreement) and the ▇▇▇▇▇▇▇ Money and all interest earned
thereon shall be returned by Escrow Agent to Buyer.
13.4 POST CLOSING DEFAULT. In the event that after Closing a party
("Defaulting Party") breaches an obligation hereunder which is expressly stated
herein to survive Closing, the Defaulting Party shall be liable to the other
party ("Non-Defaulting Party") for the damages incurred by the Non-Defaulting
Party as a result of such breach.
SECTION 14. CONDEMNATION/CASUALTY.
14.1 CONDEMNATION. In the event that all or any Substantial Portion (as
defined in Section 14.3 below) of the Property is condemned or taken by eminent
domain prior to Closing or conveyed in lieu thereof, Seller shall give Buyer
written notice thereof and Buyer may, at its option, either (i) terminate this
Agreement by written notice thereof to Seller within ten (10) business days
after Seller notifies Buyer of such condemnation or conveyance; or (ii) proceed
to close the purchase of the Property pursuant to the terms hereof. If Buyer
elects option (i) above, Buyer shall receive an immediate refund of the ▇▇▇▇▇▇▇
Money and all interest earned thereon. If Buyer elects option (ii) above, Buyer
shall receive the condemnation proceeds or a reduction in the Purchase Price of
an equal amount. In the event Buyer fails to timely deliver written notice of
termination as described in option (i) above, Buyer shall be deemed to have
elected option (ii) above.
14.2 CASUALTY. In the event that all or any Substantial Portion of the
Property is damaged or destroyed by fire or other casualty prior to Closing,
Buyer may, at its option, either (i) terminate this Agreement by written notice
thereof to Seller within ten (10) business days after Seller notifies Buyer of
the casualty; or (ii) proceed to close the purchase of the Property pursuant to
the terms hereof. If Buyer elects option (i) above, Buyer shall receive a refund
of the ▇▇▇▇▇▇▇ Money and all interest earned thereon. If Buyer elects option
(ii) above, Seller shall deliver to Buyer at the Closing all insurance proceeds
actually received by Seller arising from such casualty and attributable to the
Property and/or assign to Buyer all of Seller's right, title and interest in any
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claim under any applicable insurance policies with respect to such casualty,
there shall be no reduction in the Purchase Price and Seller shall cooperate
with Buyer in its efforts to be paid insurance proceeds. In the event Buyer
fails to timely deliver written notice of termination as described in option (i)
above, Buyer shall be deemed to have elected option (ii) above.
14.3 SUBSTANTIAL PORTION. For purposes of this Section 14, a Substantial
Portion of the Property shall mean any taking or casualty loss which decreases
the value of the Property by Fifty Thousand Dollars ($50,000.00) or more
("Substantial Portion"). If, within ten (10) business days after Seller's notice
to Buyer described above, Seller and Buyer are unable to reasonably agree after
good faith efforts upon whether the taking or casualty loss involves a
Substantial Portion of the Property, then this Agreement shall be deemed null
and void and the ▇▇▇▇▇▇▇ Money and all interest thereon shall be refunded to
Buyer.
SECTION 15. INSPECTIONS AND DOCUMENTS.
15.1. ACCESS. Buyer has had and shall continue to have, during the entire
term of this Agreement, access to (i) all information Buyer is entitled to
hereunder; and (ii) the Property for purposes of inspections and investigations
of the Property. Seller agrees it will not make or cause to be made any material
changes to the Property after such inspection. Notwithstanding the foregoing,
Buyer and its agents shall not disrupt the operation of the Property. Buyer
shall defend and indemnify Seller from, for, and against any loss, cost or
liability which may arise or result from any activities of Buyer or its agents
on or with respect to the Property, except to the extent caused by Seller's
negligence or willful misconduct.
15.2. INFORMATION. Within three (3) days after the Opening of Escrow Date,
Seller shall allow Buyer to inspect and copy any and all information, data,
documents, and other materials in Seller's possession or reasonably available to
Seller relating to the Property including all reports, engineering and/or survey
work, preliminary and final plats relating to the Property, all land use
planning and marketing information pertaining to the Property, and all
contractor's bids and cost estimates pertaining to the Property. Seller shall
deliver the original and all copies of the information, data, documents, and
materials in Seller's possession to Buyer at Close of Escrow and Seller's
interest in them shall pass to Buyer as of Close of Escrow.
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SECTION 16. MISCELLANEOUS.
16.1. ENTIRE AGREEMENT. This Agreement is the entire agreement between
Seller and Buyer concerning the sale of the Property and no modification hereof
or subsequent agreement relating to the subject matter hereof shall be binding
on either party unless in writing and signed by the party or parties to be
bound.
16.2 REVIEW BY COUNSEL. Each party acknowledges that it and its counsel
have reviewed this Agreement, and the parties hereby agree that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any amendments or exhibits hereto.
16.3 CONTINUING VALIDITY. If any one or more of the provisions contained in
this Agreement shall for any reason be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been contained herein.
16.4 ATTORNEYS FEES. Should either party employ an attorney to enforce any
of the provisions hereof or to recover damages for the breach of this Agreement,
the non-prevailing party in any final judgment agrees to pay the other party's
reasonable expenses, including attorneys' fees and expenses, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction.
16.5 LAW AND VENUE. This Agreement shall be governed and construed in
accordance with the laws of the State of Arizona. Exclusive jurisdiction shall
be the Coconino County Superior Court.
16.6 TIME OF ESSENCE. Time is of the essence in the performance of each
party's obligations hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
above written.
BUYER: SELLER:
▇▇▇▇▇ ▇▇▇
ILX RESORTS INCORPORATED Tax ID:
Date:
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chairman of the Board ▇▇▇▇ ▇. ▇▇▇
Tax I.D.:
Date: October ____, 2000 Date:
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ESCROW AGENT:
Received this _______ day of , 2000 Escrow Agent hereby agrees to be bound by
the provisions hereof applicable to Escrow Agent, and to perform Escrow Agent's
obligations as set forth herein.
CAPITAL TITLE AGENCY, INC.
----------------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: _________________________________
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