Exhibit 10.1
PURCHASE AND SALE AGREEMENT
FOR
121 PORTAL LANE
SEDONA, ARIZONA
LIST OF EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
A Property Legal Description
B Existing Title Policy
C New Lease
TABLE OF CONTENTS
PURCHASE AND SALE AGREEMENT....................................................1
PRICE AND TERMS................................................................1
SECTION 1. SALE AND PURCHASE..................................................2
SECTION 2. PURCHASE PRICE: EARNEST MONEY......................................2
SECTION 3. TITLE INSURANCE....................................................3
SECTION 4. LOAN...............................................................3
SECTION 5. DUE DILIGENCE......................................................4
SECTION 6. PRORATIONS.........................................................4
SECTION 7. REPRESENTATIONS AND WARRANTIES.....................................4
SECTION 8. CLOSE OF ESCROW....................................................7
SECTION 9. "AS IS CONDITION.".................................................8
SECTION 10. NOTICES............................................................8
SECTION 11. COMMISSIONS........................................................8
SECTION 12. SUCCESSORS AND ASSIGNS.............................................9
SECTION 13. REMEDIES...........................................................9
SECTION 14. CONDEMNATION/CASUALTY.............................................10
SECTION 15. INSPECTIONS AND DOCUMENTS.........................................11
SECTION 16. LEASEBACK.........................................................11
SECTION 17. MISCELLANEOUS.....................................................11
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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 121 Portal Lane
of Property: Sedona, Arizona
Agreement Date: March 15, 2002
Seller Notice Address: Name: ILX Resorts Incorporated,
an Arizona corporation
Address: 2111 E. Highland, Suite 210
Phoenix, AZ 85016
Telephone: (602) 957-2777
Facsimile: (602) 957-2290
Buyer Notice Address: Name: Edward John Martori, a married man
dealing with his sole and separate property
c/o Joseph P. Martori
Address: 2111 E. Highland, Suite 210
Phoenix, AZ 85016
Telephone: (602) 957-2777
Facsimile: (602) 957-2290
PRICE AND TERMS
A. PURCHASE PRICE: $1,650,000.00 ("Purchase Price") payable by Buyer at
closing.
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. CLOSING DATE (SEE ALSO SECTION 8.1): On or before March 25, 2002.
D. PERSONAL PROPERTY: This Agreement includes none of the personal property
owned by Seller located on the Property and used in the operation of the
Property as of the Agreement Date.
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E. ESCROW AGENT:
Jeannie Larson
Pioneer Title
112 N. Elden Street
Flagstaff, AZ 86001
Phone: (928) 779-0371
Facsimile: (928) 779-4112
F. TITLE COMPANY: Pioneer Title Agency, Inc. as agent for Stewart Title.
G. 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 no Personal Property.
1.2 TITLE COMMITMENT. Attached as Exhibit B is a copy of the Stewart Title
policy of Title Insurance (Title Policy) issued to Seller and dated December 21,
2000. The sale of this Property is subject to the matters shown in Schedule B of
the Title Policy plus the Loan (as defined in Section 4); zoning laws,
restrictions, stipulations, subdivision regulations and other laws and
ordinances regulating the use of or improvements to the Property.
SECTION 2. PURCHASE PRICE: EARNEST MONEY. The Purchase Price shall be paid as
follows:
2.1 EARNEST MONEY. There shall be no earnest money.
2.2 ESCROW AGENT. The parties hereby designate Jeannie Larson and Pioneer
Title Agency, Inc. (as agent for Stewart Title) as the Escrow Agent and the
Title Company, respectively.
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. The Closing Funds shall be adjusted for the following:
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(a.) The outstanding balance, including principal and interest, due on the
Loan as of the Close of Escrow.
(b.) The amount of $700,000 which is an amount Seller owes Buyer under a
separate and distinct existing Promissory Note (Note). Upon the Close of Escrow
the Note shall be marked "Paid in Full" and returned by Buyer to Seller.
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.
SECTION 3. TITLE INSURANCE.
3.1 TITLE COMMITMENT. Buyer accepts that it will receive the Title Policy
with the Exceptions reflected in Exhibit B to this Agreement plus an exception
reflecting the Loan.
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. 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. LOAN. The property is subject to an existing Loan in the amount of
approximately $808,000 with Firstar Bank (Lender) as the holder of a first deed
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of trust on the Property. Buyer will take title subject to the Loan of the
Lender. The approximately balance of the Loan at the Close of Escrow will be
$795,000. The Loan is due and payable on February 15, 2011. At that time Buyer
shall make arrangements on its own to secure a new loan to pay off any balance
owed on the Loan. Any new lender will enter into a Recognition and Attornment
Agreement with Seller (as Tenant) in a form reasonably acceptable to Buyer.
SECTION 5. DUE DILIGENCE. Buyer has performed its Due Diligence on the Property.
SECTION 6. PRORATIONS.
6.1 SETTLEMENT STATEMENT. Escrow Agent shall prepare a pro forma settlement
statement and circulate same to the parties at least two (2) business days prior
to the Closing Date reflecting all proposed prorations for mutual review by the
parties.
6.2 TAXES AND ASSESSMENTS. There shall be no proration of taxes and
assessments since the Seller, as the tenant under the Lease referred to in
Section 16, is responsible for payment of all taxes and assessments.
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.
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SECTION 7. REPRESENTATIONS AND WARRANTIES.
7.1 BY BUYER.
(a) 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.
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 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.
(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
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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.
(c) 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).
(d) 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.
(e) 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.
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(f) 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.
(g) 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.
(h) There are no leases on the Property and will be none as of the
Close of Escrow, except a lease between Buyer as landlord and Seller as tenant.
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:
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 of Exhibit B to
this to this Agreement and the Loan in the approximate amount of $795,000.
8.1.2 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.
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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)
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
If to Seller, to: The address shown on Page 1 hereof
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With a copy to: Al Spector, Esq.
Spector Law Offices, P.C.
4020 N. Scottsdale Road, Suite 300
Scottsdale, AZ 85251
Telephone: (480) 941-0221
Facsimile: (480) 990-9093
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
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.
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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 five (5) 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 Earnest 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 Earnest 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.
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 five (5) business days after
the date of Buyer's notice, then Buyer may (i) terminate this Agreement by
notifying Seller thereof, in which event the Earnest 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 Earnest 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.
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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 five (5) 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 Earnest
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 five (5) 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 Earnest 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
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 Earnest 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
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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. Seller shall deliver the original and all copies of the
information, data, documents, and materials in Seller's possession relating to
the Property to Buyer at Close of Escrow and Seller's interest in them shall
pass to Buyer as of Close of Escrow.
SECTION 16. LEASEBACK. Contemporaneous with the signing of this Agreement,
Seller and Buyer shall enter into a leaseback of the Property where the Seller
shall be the Tenant and the Buyer shall be the Landlord. The lease shall be in
the form attached as Exhibit C. The Close of Escrow is conditioned upon the
Seller and Buyer having signed this Lease Agreement.
SECTION 17. MISCELLANEOUS.
17.1. 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.
17.2 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.
17.3 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.
17.4 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.
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17.5 TIME OF ESSENCE. Time is of the essence in the performance of each
party's obligations hereunder.
SELLER: BUYER:
ILX RESORTS INCORPORATED
- ---------------------------------- ----------------------------------------
By: Nancy J. Stone Edward John Martori
Its: President
Date: March ____, 2002 Date: March ____, 2002
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ESCROW AGENT:
Received this _______ day of March 2002 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.
PIONEER TITLE AGENCY, INC.
___________________________________
By: Jeannie Larson
Title: ___________________________
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