Exhibit 1.1(a)
SHADOWROCK SEDONA GOLF RESORT AND CONFERENCE CENTER
UP SEDONA, INC., SPONSOR
5745 NORTH SCOTTSDALE ROAD
SUITE B-101
SCOTTSDALE, ARIZONA 85020
SOLICITING DEALER AGREEMENT
_______________, 1997
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RE: RESORT HOTEL INVESTMENT UNITS CONSISTING OF A CONDOMINIUM UNIT IN THE
SHADOWROCK SEDONA GOLF RESORT AND CONFERENCE CENTER TOGETHER WITH A
MANDATORY RENTAL POOL AGREEMENT (THE "UNITS")
Ladies and Gentlemen:
UP Sedona, Inc. (the "Seller") hereby invites you to become a Soliciting
Dealer in the above-captioned securities, and as such to effect sales of the
Units, on a best efforts basis (the "Offering"), for the account and risk of the
Seller. In certain instances herein, you will be referred to as "Dealer" and we
will be referred to as "Seller."
1. APPOINTMENT.
Subject to the terms and conditions and on the basis of the
representations, warranties and covenants herein set forth, Dealer is hereby
authorized on a non-exclusive basis to effect sales of the Units during the
period commencing with the date of the Registration Statement and ending at the
Final Closing Date as defined in the Registration Statement. By your
confirmation thereof you hereby accept such appointment and agree to use your
best efforts to find purchasers for the Units in accordance with the terms and
conditions of this Agreement. You further agree to be bound by the terms and
conditions of the Escrow Agreement entered into by the Seller and a bank for
purposes of holding subscriber funds until payment is due to Seller upon
completion of construction in accordance with the terms of the Purchase
Contract.
2. NATURE OF THE OFFERING.
(a) PURCHASE PRICE. The Units will be offered for sale at a purchase
price ranging from $165,900 to $207,900 per Unit payable as shall be set forth
in the Registration Statement prepared pursuant to SUBPARAGRAPH 4(A) below.
(b) PURCHASE CONTRACTS. Purchase Contracts, together with checks
payable to the Escrow Agent as set forth in the Purchase Contract, shall be sent
to United Property Investments Corp. ("UPIC"), 5745 North Scottsdale Road, Suite
B-100, Scottsdale, Arizona 85020, by noon of the next business day following
receipt by the Dealer.
(c) ACCEPTANCE BY THE SELLER. Upon receipt of the Purchase Contract
by UPIC, the Seller will determine promptly whether it wishes to accept the
proposed purchaser, it being understood that the Seller reserves the right to
reject the tender of any Purchase Contract. Deposit of a check shall not
constitute acceptance. Should the Seller determine to reject the tender, it will
notify in writing the prospective purchaser and Dealer within ten (10) business
days following receipt by the Seller of the Purchase Contract and the Escrow
Agent under the terms of the Escrow Agreement will promptly return to the
prospective purchaser the tendered Purchase Contract and a check equal to the
amount tendered for the Unit. In the event a prospective purchaser has indicated
he intends to finance the purchase of his Unit and fails to qualify for
financing, the Seller will notify the Escrow Agent and the Purchase Contract and
a check equal to the amount tendered will be returned to purchaser. Nothing
contained in this SUBPARAGRAPH 2(C) shall be construed to impose upon the Seller
the responsibilities of assuring that prospective purchasers meet the
suitability standards contained in the Prospectus or the Purchase Contract or to
relieve Dealer of complying with Rule 2310 of the NASD Conduct Rules.
3. COMPENSATION.
As a compensation for the services rendered by Dealer in soliciting and
obtaining purchasers for the Units, the Seller shall pay the following:
(a) A cash commission in the amount of 22% of the purchase price of
the Unit purchased will be paid to Dealers selling Units at the ShadowRock
Sedona Golf Resort and Conference Center.
(b) One-half of the commission shall be paid within 30 days of the
approval of the prospective purchaser's application for financing or
confirmation that the purchaser is paying all cash and has satisfied UP Sedona
as to his financial ability to pay cash and the remaining one-half of the
commission will be paid at closing. In the event the purchaser defaults and does
not complete the purchase, the balance of the commission will not be paid.
(c) No Dealer shall be entitled to a selling commission with respect
to any tendered Purchase Contract which is rejected by the Seller or in any case
in which it is determined that the solicitation or obtaining of purchasers by
such Dealer was made in violation of the securities laws of the United States or
any state.
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4. COVENANTS OF THE SELLER.
The Seller hereby warrants, covenants and agrees as follows:
(a) PREPARATION OF OFFERING MATERIALS IN ACCORDANCE WITH APPLICABLE
LAW.
(i) The Seller has prepared and filed with the Securities
and Exchange Commission (the "Commission") in Washington, D.C. a registration
statement on Form S-11 and has prepared and filed and will prepare and file
amendments thereto for the registration of the Units under the Securities Act of
1933, as amended (the "Act"). Copies of such registration statement and
amendments will be made available to you upon request. Such registration
statement has become effective under the Act. Such registration statement,
including financial information, as amended at the time when it became
effective, is herein called the "Registration Statement," and the prospectus, as
first filed pursuant to the Commission's Rule 424(b) under the Act, is herein
called the "Prospectus."
(ii) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, or any stop order suspending
the effectiveness of the Registration Statement, and no proceedings for that
purpose have been instituted or are pending before or threatened by the
Commission under the Act.
(iii) From the time the Registration Statement became
effective and at all times subsequent thereto up to and including the Final
Closing Date, the Registration Statement and Prospectus, and all amendments or
supplements thereto, have fully complied and will fully comply with the
provisions of the Act and the published rules and regulations of the Commission
thereunder; when the Registration Statement became effective, and when any
post-effective amendment thereof becomes effective, the Registration Statement
(as amended, if the Seller shall have filed with the Commission any
post-effective amendment thereto) has not contained and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and when the Registration
Statement became effective and at all times subsequent thereto up to and
including the Final Closing Date, the Prospectus (as amended or supplemented, if
the Seller shall have filed with the Commission any amendment thereto or
supplement thereto) has not contained and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties in this subparagraph shall apply
to statements in, or omissions from, the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto based upon and in
conformity with written information furnished to the Seller by or on behalf of
you or by or on behalf of any other Soliciting Dealer specifically for use with
reference to you or any such other Soliciting Dealer in the preparation of the
Registration Statement or the Prospectus or any such amendment or supplement.
(iv) All additional written, audio or audio-visual material
prepared by the Seller for use in conjunction with the offer or sale of the
Units (hereinafter referred to as "Supplemental Literature") will be distributed
by the Seller only in full compliance with the requirements of the Act
(including, without limitation, the requirement that such Supplemental
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Literature not be delivered to any prospective purchaser unless accompanied or
preceded by a Prospectus), and at the time the Registration Statement became
effective and at all times subsequent thereto up to and including the Final
Closing Date, such Supplemental Literature has not contained and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) AMENDMENT TO PROSPECTUS OR SUPPLEMENTAL LITERATURE. The Seller
shall promptly advise Dealer if the Seller becomes aware of any event which
happens prior to the Final Closing Date which makes any statement in the
Prospectus or Supplemental Literature (together, the "Offering Materials")
untrue or misleading in any material respect or which requires any change in the
Offering Materials in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. Without limiting the
foregoing, if, prior to the Final Closing Date, any event shall occur which, in
the judgment of the Seller or Dealer or their respective counsel, should be set
forth in the Offering Materials in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, or if it
is necessary to amend or supplement the Offering Materials to comply with law,
the Seller shall forthwith prepare an appropriate amendment or supplement
thereto.
(c) COPIES OF OFFERING MATERIALS TO BE PROVIDED TO DEALER. Until the
Final Closing Date, the Seller shall deliver to Dealer without charge as many
copies of the Offering Materials (and of any amendments and supplements thereto)
as Dealer may reasonably request.
(d) REQUESTS FOR AMENDMENT OR ISSUANCE OF STOP ORDERS. As soon as
the Seller is advised or obtains knowledge thereof, it shall advise Dealer of
(i) any request made by the Securities and Exchange Commission or any state
securities agency for an amendment of or supplement to the Offering Materials or
for additional information, or (ii) the issuance by the Securities and Exchange
Commission or any state securities agency of any stop order preventing or
suspending the Offering or the use of the Offering Materials or the institution
of any proceedings for that purpose. Without limiting the foregoing, the Seller
shall use its best efforts to prevent the issuance of any such order and, if any
such order is issued, to obtain the lifting thereof as promptly as possible.
(e) QUALIFICATION OF THE UNITS UNDER STATE LAW. The Seller shall (i)
qualify the Units for offer and sale under the securities or blue sky laws of
such jurisdictions in which the Seller and Dealer mutually determine to offer
and sell the Units and (ii) make such applications, file such documents and
furnish such information as may reasonably be required for that purpose.
(f) PAYMENT OF EXPENSES BY THE SELLER. The Seller shall pay all
costs and expenses incurred in connection with the Offering (other than the fees
and expenses of counsel to Dealer or expenses incurred by Dealer on its own
behalf) including but not limited to all accounting, legal, printing and other
costs in respect of (i) the preparation of the Offering Materials and the
exhibits thereto prepared in connection with the Offering, as amended or
supplemented from time to time, and (ii) the compliance with the securities or
blue sky laws of those jurisdictions in which the Units are to be sold.
(g) REPRESENTATIONS AND WARRANTIES. The Seller represents and
warrants as of the date hereof and as of the Final Closing Date to the effect
that:
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(i) AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by the Seller.
(ii) OFFERING MATERIALS TRUE AND CORRECT. The Offering Materials
and each amendment and supplement thereto conform in all material respects with
the requirements of the 1933 Act and the applicable rules and regulations
thereunder and the provisions of the securities or blue sky laws of all
applicable jurisdictions. None of the Offering Materials and any amendments or
supplements thereto include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading.
(iii) ABSENCE OF STOP ORDERS. Unless otherwise notified in
writing, neither the Securities and Exchange Commission nor any state securities
agency has (A) made any requests for an amendment of or supplement to the
Offering Materials or for additional information or (B) issued any order
preventing or suspending the Offering or the use of the Offering Materials or
instituted proceedings for that purpose.
(iv) ABSENCE OF MATERIAL ADVERSE CHANGE. Since the date of the
Registration Statement no event has occurred, including any material adverse
change in the financial condition of the Seller, the incurring of any material
liability or obligation, direct or contingent, the entering into of any material
transaction, or the institution of any legal or administrative proceeding
against the Seller which would have a material adverse effect upon the Seller.
(v) TITLE TO PROPERTIES. The Seller has or will acquire pursuant
to the transactions disclosed in the Offering Materials good title to all of its
real and personal properties.
(vi) LITIGATION. There are no actions, suits, proceedings or
other litigation pending or, to the knowledge of the Seller threatened against
or affecting the Seller at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality which, if determined adversely to the Seller would individually
or in the aggregate have a materially adverse effect on the business, assets,
properties operation, or prospects of the Seller or on its condition, financial
or otherwise.
(vii) COMPLIANCE WITH LAW AND OTHER REGULATIONS. The Seller is
not subject to and has not been threatened with any material fine, penalty or
disability as the result of its failure to comply with any requirements of
federal, state, local, or foreign law or regulation, or any requirements of any
governmental body or agency having jurisdiction over it, the conduct of its
business, the use of its assets and properties, or any premises occupied by it.
(viii) ACCURACY OF STATEMENTS. Neither this Agreement nor any
statement, list certificate or other information furnished by the Seller to
Dealer in connection with this Agreement or any of the transactions contemplated
hereby contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they are made, not misleading.
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(ix) SURVIVAL OF REPRESENTATION. At all times subsequent to the
date of this Agreement and up to and including the Final Closing Date, the
representations and warranties made in this PARAGRAPH 4 will be true and correct
with the same effect as if they had been made on and as of such date.
5. COVENANTS OF DEALER. Dealer hereby warrants, covenants and agrees as
follows:
(a) BEST EFFORTS. Dealer shall use its best efforts to find
purchasers for the Units who are acceptable to the Seller.
(b) MANNER OF THE OFFERING. Dealer shall use its best efforts to
offer and sell the Units on behalf of the Seller in accordance with the
provisions of the 1933 Act and the provisions of the securities or blue sky laws
of any jurisdictions in which the Seller and Dealer mutually determine to offer
and sell the Units. Dealer shall comply with all the following:
(i) Dealer agrees to solicit investors only in those states in
which it is qualified to make offers and sales of the Units.
(ii) Dealer shall use reasonable efforts to select investors it
reasonably believes meet the investor suitability requirements set forth in the
Purchase Contract, which is an exhibit to the Offering Materials, and such
additional requirements as are specified in the Purchase Contract.
(iii) Dealer shall not give any information or make any
representation in connection with the Offering other than those contained in the
Offering Materials provided by the Seller for use in connection with the
Offering.
(iv) Dealer shall not publish, circulate or otherwise use any
other solicitation material without the prior written approval of the Seller.
(v) Dealer shall accept subscriptions only from investors who
have received a copy of the Offering Materials, including any required
supplements, and who have executed a Purchase Contract.
(vi) Dealer agrees to affix copies of any supplements to the
Offering Materials upon receipt. Dealer shall return to the Seller any and all
unused copies of the Offering Materials supplied by the Seller to Dealer in
connection with the Offering.
(vii) Dealer shall supply copies of pertinent documents and
otherwise cooperate with the Seller in complying with requests or inquiries of
any regulatory authorities relating to the Offering.
(viii) Dealer is not authorized to act as an agent of the Seller
or any connection or transaction, and Dealer agrees not to act as such agent and
not to purport to do so without the prior written approval of the Seller.
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(c) To the extent that information is provided to Dealer marked "For
Broker/Dealer Use Only - Distribution to the Public Prohibited," or marked with
words of similar meaning, Dealer covenants and agrees not to provide such
information to prospective investors.
(d) SEC AND NASD RULES AND REGULATIONS. Dealer covenants and agrees
with respect to its participation in the offering of Units to comply with any
applicable requirements of the Act and of the 1934 Act, and the published rules
and regulations of the Commission thereunder, and the conduct rules of the NASD.
Dealer also agrees not to deliver the Supplemental Literature to any person
unless the Supplemental Literature is accompanied or preceded by the Prospectus.
Dealer confirms that it is a member in good standing of the NASD. Dealer agrees
that it will not reallow commissions to any other broker/dealer, including
foreign broker/dealers registered pursuant to the Exchange Act of 1934.
(e) REPRESENTATIONS AND WARRANTIES. Dealer represents and warrants
as of the date hereof and as of the Final Closing Date to the effect that:
(i) STATUS AND AUTHORITY. Dealer is a corporation duly organized
and validly existing under the laws of the state of its incorporation and is in
good standing under the laws of such state and in each other state in which the
Offering is made by Dealer.
(ii) AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by Dealer.
(iii) OFFERING MATERIALS TRUE AND CORRECT. The information
contained in the Offering Material in reliance upon and in conformity with
written information furnished to the Seller by Dealer does not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
the light of the circumstances under which they are made, not misleading.
(iv) REGISTRATION AS BROKER-DEALER. Dealer is a member of the
National Association of Securities Dealers, Inc. and is registered or exempt
from registration as a broker-dealer under the Securities Exchange Act of 1934
and the securities or blue sky laws of each jurisdiction in which the Offering
is made by Dealer.
(f) SURVIVAL OF REPRESENTATIONS. At all times subsequent to the date
of this Agreement and up to and including the Final Closing Date, the
representations and warranties made in this PARAGRAPH 5 will be true and correct
with the same effect as if they had been made on and as of such time.
6. INDEMNIFICATION.
(a) INDEMNITY BY DEALER. Dealer hereby indemnifies and holds
harmless the Seller and each person who controls the Seller (within the meaning
of Section 15 of the 1933 Act) for, from, and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and counsel fees) arising out of or based upon: (i) any breach by
Dealer of the representations, warranties or covenants by it contained in or
made pursuant to this Agreement; (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Offering Materials or in any
amendment or supplement thereto or in any blue sky application or document which
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was included therein in reliance upon information relating to Dealer furnished
in writing by it, or on its behalf, expressly for use in connection with the
offering materials, or in any amendment or supplement thereto or in any blue sky
application or document; (iii) any omission or alleged omission to state in the
Offering Materials any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading, but only with respect to information relating
directly to Dealer furnished by Dealer; or (iv) the failure by Dealer to give,
deliver or send a copy of the Offering Materials as appropriate to any person to
whom the Units are offered or sold or to offer or sell the Units in accordance
with the provisions of any applicable rules, regulations and published
administrative interpretations under the 1933 Act and the securities or blue sky
laws of any jurisdiction in which the Units are offered or sold by or through
Dealer, including any solicitation by Dealer of any subscription other than in
accordance with the terms of this Agreement and the Offering Materials, any
representation made by Dealer other than as set forth in the Offering Materials
furnished by the Seller specifically for use in connection with the Offering or
any other misleading statement by Dealer or failure by Dealer to correct a
misleading statement by Dealer in order to make such statement conform to the
information contained in the Offering Materials. This indemnity agreement shall
be in addition to any liability which Dealer may otherwise have.
(b) INDEMNITY BY THE SELLER. The Seller hereby indemnities and holds
harmless Dealer and each person who controls Dealer (within the meaning of
Section 15 of the 1993 Act) for, from, and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and counsel fees) arising out of or based upon: (i) any breach by the Seller of
the representations, warranties or covenants by it contained in or made pursuant
to this Agreement, (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Offering Materials or in any amendment or
supplement thereto or in any blue sky application or document, except for
information relating to Dealer furnished in writing by Dealer, or on its behalf,
expressly for use in connection with the Offering Materials or in any amendment
or supplement thereto or in any blue sky application or document; or (iii) any
omission or alleged omission to state in the Offering Materials any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading,
excepting information relating directly or indirectly to Dealer; provided,
however, that the Seller shall not be responsible for, nor does the Seller
indemnify or hold harmless Dealer or its controlling persons against, any
losses, claims, damages, liabilities or expenses arising out of or resulting
from the offer or sale of the Units to any person who was not given, delivered
or sent a copy of the Offering Materials as appropriate, or the failure by
Dealer to offer and sell the Units in accordance with the federal securities
laws, NASD rules and regulations or the blue sky laws of any jurisdiction in
which the Units are offered or sold by or through Dealer. This indemnity will be
in addition to any liability which the Seller may otherwise have.
(c) ACTIONS RELATING TO INDEMNITY. If any action or claim shall be
brought or asserted against a party entitled to indemnification hereunder (the
"Indemnified Party") or any person controlling such party and in respect of
which indemnity may be sought from the party obligated to indemnify the
Indemnified Party pursuant to PARAGRAPHS 7(A) and (B) hereof (the "Indemnifying
Party"), the Indemnified Party shall promptly notify the Indemnifying Party in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel and the payment of all expenses. The Indemnified Party
or any such controlling person shall have the right to employ separate counsel
in any such action and participate in the defense thereof and to be indemnified
for the reasonable fees and expenses thereof. This paragraph shall survive any
termination of this Agreement.
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7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES.
(a) OBLIGATION OF DEALER. The obligations of Dealer hereunder shall
be subject to the following conditions precedent, any one or more of which may
be waived by Dealer:
(i) PERFORMANCE OF OBLIGATIONS. The Seller shall have performed
all of its covenants and agreements as set forth herein on or prior to the Final
Closing Date.
(ii) ABSENCE OF MATERIAL ADVERSE CHANGE. There shall not have
been a material adverse change between the date hereof and the Final Closing
Date in the business, properties, assets, financial condition, results of
operations or prospects of the Seller.
(b) OBLIGATIONS OF THE SELLER. Except for the obligation of the
Seller to pay the costs and expenses of the Offering as provided above, the
obligations of the Seller hereunder shall be subject to the following condition
precedent, which may be waived by the Seller:
(i) PERFORMANCE OF OBLIGATIONS. Dealer shall have performed all
of its covenants and agreements as set forth herein on or prior to the Final
Closing Date.
8. GENERAL.
(a) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the state of Arizona notwithstanding
any conflict-of-law provisions to the contrary.
(b) NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly give, made and received when delivered against receipt
or when deposited in the United States mail, first class postage prepaid,
addressed as set forth below:
If to Dealer:
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If to Seller:
UP Sedona, Inc.
5745 North Scottsdale Road
Suite B-101
Scottsdale, Arizona 85020
Attention: William Oliver
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With a copy to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears
One East Camelback Road
Suite 1100
Phoenix, Arizona 85012
Attention: Jean E. Harris, Esq.
Either party may alter the address to which communications or copies are to be
sent by giving notice to such of change of address in conformity with the
provisions of this paragraph for the giving of notice.
(c) BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither party may assign or
transfer its rights or obligations under this Agreement without the prior
written consent of the other party hereto.
(d) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(e) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(f) GENDER. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
(g) PERSONS ENTITLED TO BENEFIT OF AGREEMENT. Except as provided in
the next sentence, this Agreement is made solely for the benefit of you and the
other Soliciting Dealers and the Seller or controlling persons referred to in
PARAGRAPH 6 hereof, and their respective successors and assigns, and no other
person shall acquire or have any right by virtue of this Agreement, and the term
"successors and assigns," as used in this Agreement, shall not include any
purchaser of any of the Units.
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If the foregoing accurately sets forth the bass of our understanding,
please sign and return to the undersigned the extra copy of this letter, which
will thereupon constitute a contract between us.
UP SEDONA, INC.
By:
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William Oliver, President
AGREED AND ACCEPTED:
[NAME OF DEALER]
By:
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Its:
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