AGREEMENT
This Agreement is made and entered into as of the 29th day of December,
1995, by and among the following parties: ILX Incorporated, an Arizona
corporation ("ILX"), Xxxxxxx Enterprises Incorporated, an Arizona corporation
("MEI"), Los Abrigados Partners Limited Partnership, an Arizona limited
partnership ("LAP"), Red Rock Collection Incorporated, an Arizona corporation
("RRC") , Xxxxxx Xxxx Xxxxxxx ("EJM") and Xxxxxx X. Xxxxxxx as Trustee for
Xxxxxxx X. Xxxxxx Irrevocable Trust dated June 1, 1989 ("Xxxxxx").
R E C I T A L S:
A. The parties desire to effect certain transactions whereby certain
existing agreements will be modified or otherwise affected; namely those
agreements represented by the following documents:
Installment Promissory Note in the face amount of $1,000,000 dated
October 1, 1994 made by ILX payable to EJM (the "EJM/LAP Note"), which
note is secured by ILX's Class A limited partnership interest in LAP.
Promissory Note in the face amount of $900,000 dated July 27, 1995 made
by LAP and ILX payable to EJM and Xxxxxx in accordance with their
respective participation interests therein (the "EJM/Xxxxxx Note") ,
which note is secured by 320 timeshare weeks in the Sedona Vacation
Club at Los Abrigados ("Weeks") as represented by that certain Deed of
Trust and Assignment of Rents dated July 27, 1995 and recorded July 27,
1995 in the Official Records of Coconino County at Instrument No.
95-21171 (the "EJM/Xxxxxx Deed of Trust").
Guarantee Fee Agreement dated as of September 9, 1991 between Xxxxxx X.
Xxxxxxx ("AJM") and Xxxx X. Xxxxxxx and LAP (the "Guarantee Fee
Agreement"), AJM's interest under which was assigned to MEI pursuant to
that certain Memorandum of Guaranty/Partnership Interest Exchange
Agreement dated as of January 1, 1993 between MEI and Xxxxxx X. Xxxxxxx
and Xxx X. Xxxxxxx.
B. EJM and RRC desire to enter into a sale/leaseback transaction
involving the real property presently owned and occupied by RRC located at 0000
X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx (the "RRC Building"), which real property was
recently independently appraised at $465,000.
C. The parties desire to memorialize said transactions by this one,
all-inclusive agreement.
1
A G R E E M E N T:
1. MODIFICATION OF EJM NOTE. Effective after the January 1, 1996
payment, the EJM/LAP Note shall be amended and restated by the form of
Installment Promissory Note attached hereto as EXHIBIT "A" so as to be modified
so that the indented portion of the first paragraph thereof reads as follows:
Installments of interest only shall be payable quarterly on the first
day of January, April, July, and October of each year commencing April
1, 1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Upon maturity of the EJM/LAP Note, EJM shall have the option to convert all or
any portion of the note balance into ILX common stock at a price of $2.00 per
share; provided, however, that any such exercise shall not cause EJM's interest,
direct or indirect, in ILX to exceed 50%.
Except as specifically provided herein, the EJM/LAP Note (as amended and
restated) and security therefor shall remain in full force and effect and
unamended hereby.
2. MODIFICATION OF EJM/XXXXXX NOTE. Effective after the January 1, 1996
payment, and further subject to the simultaneous modifications described
hereinafter, the EJM/Xxxxxx Note shall be substituted with two notes, one
payable to EJM in the face amount of $550,000 (the "EJM/SVC Note") and one
payable to Xxxxxx in the face amount of $350,000 (the "Xxxxxx/SVC Note"). Both
such notes shall be in substantially the same format as the EJM/Xxxxxx Note,
except that the Note Rate in each shall be reduced to 10% and they shall each be
further modified so that the indented portions of the first paragraphs thereof
read as follows:
Payments of interest only shall be made quarterly on the first day of
January, April, July, and October of each year commencing April 1,
1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Simultaneously, 100 Weeks under the EJM/Xxxxxx Deed of Trust shall be released
in accordance with the form of Deed of Partial Release and Partial Reconveyance
attached hereto as EXHIBIT "B", and the following additional modifications shall
be made:
X. XXXXXX/SVC NOTE. The makers of the Xxxxxx/SVC Note shall make a cash
payment to Xxxxxx on or before January 5, 1996 such that the Xxxxxx/SVC
Note shall be reduced to a face amount of $250,000. The Xxxxxx/SVC Note
(as so reduced) shall be secured by 120 of the 220 Weeks remaining
subject to the EJM/Xxxxxx Deed of Trust by the execution and
recordation of the Assignment of Beneficial Interest Under Deed of
Trust in the form attached hereto as EXHIBIT "C". Upon maturity of the
Xxxxxx/SVC Note, Xxxxxx shall have the option to convert all or any
portion of the note balance into ILX common stock at a price of $2.00
per share; provided, however, that any such exercise shall not cause
Xxxxxx'x interest, direct or indirect, in ILX to exceed 50%. The
Xxxxxx/SVC Note (taking
2
into account all of the simultaneous modifications described in this
Agreement) shall be in the form attached hereto as EXHIBIT "D".
B. EJM/SVC NOTE. As payment by EJM of part of the Purchase Price for
the RRC Building (as such terms are defined and such transaction is
described hereinafter), the makers of the EJM/SVC Note shall credit the
account of RRC on their books in the amount of $320,000 and the EJM/SVC
Note shall be reduced to a face amount of $230,000 (the "Initial Note
Reduction"). The EJM/SVC Note (as so reduced) shall be secured by 100
of the 220 Weeks remaining subject to the EJM/Xxxxxx Deed of Trust by
the execution and recordation of the Assignment of Beneficial Interest
Under Deed of Trust in the form attached hereto as EXHIBIT "C". Upon
maturity of the EJM/SVC Note, EJM shall have the option to convert all
or any portion of the note balance into ILX common stock at a price of
$2.00 per share; provided, however, that any such exercise shall not
cause EJM's interest, direct or indirect, in ILX to exceed 50%. The
EJM/SVC Note (taking into account all of the simultaneous modifications
described in this Agreement) shall be in the form attached hereto as
EXHIBIT "E". Notwithstanding the foregoing, the EJM/SVC Note shall be
subject to further future reductions as described below.
3. ACQUISITION OF RRC BUILDING. EJM agrees to purchase from RRC, and
RRC agrees to sell to EJM, the RRC Building at a price of $500,000, with closing
to occur on or before December 29, 1995 by recordation of a Warranty Deed (along
with an Affidavit of Real Property Value) in the form attached hereto as EXHIBIT
"F". The Purchase Price shall be payable $320,000 by the Initial Note Reduction
with the $180,000 balance payable by "Subsequent Note Reductions" as hereinafter
described. RRC agrees to pay the last half 1995 taxes on or before the payment
due date thereof. Additional terms and conditions of the purchase and sale
transaction shall be as appears in Escrow Instructions attached hereto as
EXHIBIT "G".
EJM agrees to acquire the RRC Building subject to RRC'S outstanding purchase
money obligation represented by that certain All-Inclusive Purchase Money
Promissory Note Secured by All-Inclusive Purchase Money Deed of Trust in the
face amount of $225,000 dated January 18, 1994 made by RRC payable to GPH
Properties, Inc. ("GPH") (the "GPH Note"), which note is secured by the RRC
Building pursuant to that certain All-Inclusive Purchase Money Deed of Trust and
Assignment of Rents dated January 18, 1994 and recorded February 17, 1994 in the
Official Records of Maricopa County at Instrument No. 00-0000000 and re-recorded
November 4, 1994 at Instrument No. 00-0000000 (the "GPH Deed of Trust"), as well
as the underlying note and deed of trust. RRC warrants that the current
principal balance under the GPH Note is $180,000.
RRC hereby affirms and agrees to honor all remaining monetary and non-monetary
obligations under the GPH Note and the GPH Deed of Trust (the "Obligations").
ILX and LAP, solely for the benefit of EJM and not for the benefit of GPH or any
other third party, each hereby guarantees the Obligations. With respect to the
principal payment to be made in 1996 and the principal and interest payments to
be made thereafter under the GPH Note by or on behalf of RRC, as each such
payment is made, the makers of the EJM/SVC Note shall credit the account
3
of RRC on their books the amount of such payment and the outstanding balance of
principal under the EJM/SVC Note shall be reduced (the "Subsequent Note
Reductions").
4. LEASE OF RRC BUILDING. Commencing December 29, 1995, EJM shall lease
to RRC the RRC Building at an annual rental of $48,000 payable $4,000 monthly on
a triple net basis. The term of the lease shall be one (1) year with four one
year options to renew by RRC. The lease shall be in the form attached hereto as
EXHIBIT "H".
5. GUARANTEE FEE AND HOLDBACK PAYMENTS. Effective after the January 1,
1996 fee and payment, and in consideration of $160,000 payable by LAP as
described below, MEI hereby forever relinquishes and waives its rights under the
Guarantee Fee Agreement to the guarantee fee and holdback payments as may be
accrued and unpaid on, due on or due after such effective date. Said sum shall
be payable $60,000 in cash on or before January 5, 1996 with the $100, 000
balance represented by a promissory note substantially in the form attached
hereto as EXHIBIT "I".
6. MISCELLANEOUS PROVISIONS. Any notice hereunder shall be given in
writing and hand-delivered. The provisions of this Agreement shall be governed
and interpreted in accordance with the laws of the State of Arizona. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This instrument contains the entire
agreement of the parties and may not be modified except by a writing signed by
the parties affected thereby. Each provision of this Agreement is divisible and
separable from all others and the parties agree that each such provision shall
be fully enforceable notwithstanding the fact that one or more other provisions
may be determined to be illegal or otherwise unenforceable in whole or in part.
Should one or more of the provisions of this Agreement be determined to be
illegal, wholly or partially unenforceable, or unreasonable, the parties hereby
empower the Court to enforce any such provision to the fullest extent being
possible under Arizona law. Each of the parties hereto agrees in good faith to
execute such further or additional documents as may be necessary or appropriate
to fully carry out the intent and purpose of this Agreement. Time shall be of
the essence in the performance of each and every term of this Agreement. If any
action is brought by either party in respect of its rights under this Agreement,
the substantially prevailing party shall be entitled to recover from the other
party its court costs, and reasonable attorneys' fees as determined by the
Court, to the maximum extent permitted by law. No waiver by any party to insist
upon the strict performance of any covenant, duty, agreement, or condition of
this Agreement or to exercise any right or remedy upon a breach hereof shall
constitute a waiver of such remedy. No waiver shall effect or alter the
remainder of this Agreement, but each and every covenant, agreement, term and
condition thereof shall continue in full force and effect with respect to any
then existing or subsequent breach of this Agreement. This Agreement may be
executed in several counterparts, all of which taken together shall constitute
one Agreement binding upon all of the parties, notwithstanding that all of the
parties are not signatories to the original or the same counterpart.
4
Effective as of the date and year first above written.
ILX Incorporated
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Its: Executive Vice President
-----------------------------------
Xxxxxxx Enterprises Incorporated
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its: Chairman
-----------------------------------
Los Abrigados Partners Limited Partnership
By: ILE Sedona Incorporated,
General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Its: Vice President
-------------------------------
Red Rock Collection Incorporated
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Its: President
-----------------------------------
/S/ XXXXXX XXXX XXXXXXX
Xxxxxx Xxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Trustee
---------------------------------------
Xxxxxx X. Xxxxxxx as Trustee
for Xxxxxxx X. Xxxxxx Irrevocable
Trust dated June 1, 1989
5
EXHIBIT "A"
$909,078 EJM/LAP NOTE (AMENDED AND RESTATED)
INSTALLMENT PROMISSORY NOTE
(AMENDED AND RESTATED)
$909,078 January 1, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned, ILX INCORPORATED, an Arizona
corporation (the "undersigned"), promises to pay to the order of Xxxxxx X.
Xxxxxxx ("Payee"), at Phoenix, Arizona, or at such other place as the holder
hereof may from time to time designate, the principal sum of Nine Hundred Nine
Thousand and Seventy Eight Dollars ($909,078), together with interest thereon as
computed below, as follows:
Installments of interest only shall be payable quarterly on the first
day of January, April, July, and October of each year commencing April
1, 1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Interest shall be charged on the unpaid principal balance of this Note
to the date of maturity on a daily basis for the actual number of days any
portion of the principal is outstanding, computed on the basis of a 360-day
year, at a per annum rate (the "Note Rate") equal to eight percent (8%).
Upon maturity of this Note, Payee shall have the option to convert all
or any portion of the balance outstanding hereunder into ILX Incorporated common
stock at a price of $2.00 per share; provided, however, that any such exercise
shall not cause Payee's interest, direct or indirect, in ILX Incorporated to
exceed 50%.
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by the Note Rate, and any additional charges, costs
and fees arising out of or related to the transaction of which this Note is a
part, to the extent deemed to be interest under applicable law.
Each and every payment due under this Note shall be made in lawful
money of the United State of America and in immediately available funds , and
when made shall be first applied to accrued costs, expenses and fees, if any,
then to accrued interest that has not yet been added to principal, and then to
the reduction of the principal amount of this Note. This Note may be prepaid, in
whole or in part, without penalty or premium, provided that each such payment
shall be applied as set forth above.
At the option of the holder hereof, any of the following shall
constitute a "default" hereunder, and, upon the occurrence of any of the
following, all obligations hereunder shall, at the option of the holder hereof,
become immediately due and payable, without presentment for payment, diligence,
grace, exhibition of this Note, protest, further demand or notice of any kind,
all of which are hereby expressly waived: (i) any sum owing hereunder or under
other indebtedness of the undersigned to Payee is not paid as agreed; (ii) any
petition or application for any form of relief under any provision of Xxxxx 00,
Xxxxxx Xxxxxx Code, as
1
amended from time to time (the "Bankruptcy Code") or any other law pertaining to
reorganization, insolvency or readjustment of debts is filed by or against the
undersigned, its assets or affairs; (iii) the undersigned makes an assignment
for the benefit of creditors, is not paying debts as they become due, or is
granted an order for relief under any chapter of the Bankruptcy Code; (iv) a
custodian, as defined by the Bankruptcy Code, takes charge of any property of
the undersigned; (v) garnishment, attachment, levy or execution is issued
against any of the property or effects of the undersigned; (vi) there is a
termination, failure to exist or dissolution of the undersigned; or (vii) there
is any default or breach of any representation, warranty or covenant, or there
is any false statement or material omission, by the undersigned under any
document farming part of the transaction in respect of which this Note is made
or forming part of any other transaction under which the undersigned is indebted
to Payee.
The undersigned hereby agrees: (i) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(ii) that any written modification, extension or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest and other sums owing hereunder at
the time of such modification, renewal or extension are owed without adjustment
for offset, counterclaim or other defense of any kind by the undersigned against
Payee; (iii) that the acceptance by the holder hereof of any performance which
does not comply strictly with the terms hereof shall not be deemed to be a
waiver or bar of any right of said holder, nor a release of any obligation of
the undersigned to the holder hereof; (iv) to offsets of any sums or property
owed to the undersigned by the holder hereof at any time; (v) that this Note
shall be governed by the laws of the State of Arizona applicable to promissory
notes made and to be paid in the State of Arizona; and (vi) to pay the holder
hereof upon demand any and all costs, expenses and fees (including reasonable
attorneys' fees) incurred in enforcing or attempting to recover payment of the
amounts due under this Note, including negotiating, documenting and otherwise
pursuing or consummating modifications, extensions, compositions, renewals or
other similar transactions pertaining to this Note, irrespective of the
existence of an event of default, and including costs, expenses and fees
incurred before, after or irrespective of whether suit is commenced, and in the
event suit is brought to enforce payment hereof, such costs, expenses and fees
and all other issues in such suit shall be determined by a court without a jury.
This Note is secured by a Security Agreement dated July 1, 1994.
This Note is executed to be effective as of the date set forth above.
ILX INCORPORATED, an Arizona corporation
ATTEST: By: /s/ Xxxxx X. Xxxxx
------------------------------------
Its: Executive Vice President
-----------------------------------
By: /s/
------------------------------------
Its: Vice President
-----------------------------------
2
EXHIBIT "B"
DEED OF PARTIAL RELEASE AND PARTIAL RECONVEYANCE (100 WEEKS)
Recording Requested by:
When recorded mail to:
Xxx Ciatu, Esq.
c/o 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
DEED OF PARTIAL RELEASE AND PARTIAL RECONVEYANCE
(BENEFICIARY)
XXXXXX X. XXXXXXX, Trustee for the XXXXXXX X. XXXXXX IRREVOCABLE TRUST dated
June 1, 1989 and XXXXXX XXXX XXXXXXX, a single man, Beneficiaries under the Deed
of Trust executed by LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, AN ARIZONA
LIMITED PARTNERSHIP, as Trustor, dated JULY 27, 1995, and recorded JULY 27,
1995, in Docket/Book 1789, Page 134, Records of Coconino County, Arizona, hereby
releases and reconveys to the person or persons legally entitled thereto,
without covenant or warranty, express or implied, all the estate, title, and
interest acquired by Trustee under said Deed of Trust, in and to that portion of
the property described as follows:
An undivided 100/8,925 fee simple interest in and to the real property situated
in Coconino County, Arizona, more particularly described in Docket 1738, page
236 ET SEQ., at the office of the Coconino County Recorder, Coconino County,
Arizona. Together with all buildings, improvements and fixtures thereon.
The remaining property described in said Deed of Trust shall continue to be held
by Trustee under the terms thereof, and, as provided therein, this partial
reconveyance does not affect the personal liability of any person for payment of
the indebtedness secured thereby.
NOW THEREFORE, the Beneficiary does hereby partially release said Deed of Trust
pursuant to the provisions of Arizona Revised Statutes Section 33-707.
DATED: December 27, 1995
--------------------
/s/ Xxxxxx Xxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxx Xxxxxxx, Beneficiary
The Xxxxxxx X. Xxxxxx Irrevocable
Trust dated June 1, 1989, Beneficiary
By: /s/ Xxxxxx X. Xxxxxxx, Trustee
---------------------------------
Xxxxxx X. Xxxxxxx, Trustee
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC.,
1995 by XXXXXX XXXX XXXXXXX.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC. 1995
by XXXXXX X. XXXXXXX who acknowledged to be the TRUSTEE of the XXXXXXX X. XXXXXX
IRREVOCABLE TRUST DATED JUNE 1, 1989, and that as such Trustee, being authorized
so to do, signed the name of the trust as such Trustee.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
EXHIBIT "C"
ASSIGNMENTS OF BENEFICIAL INTEREST
UNDER DEED OF TRUST (100/120 WEEKS)
Recording Requested by:
When recorded mail to:
Xxx Ciatu, Esq.
c/o 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
ASSIGNMENT OF BENEFICIAL INTEREST UNDER DEED OF TRUST
FOR VALUE RECEIVED, the undersigned Beneficiaries hereby assign and transfer to
XXXXXX X. XXXXXXX, TRUSTEE FOR THE XXXXXXX X. XXXXXX IRREVOCABLE TRUST DATED
JUNE 1, 1989 all beneficial interest under that certain Deed of Trust dated JULY
27, 1995 executed by LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, AN ARIZONA
LIMITED PARTNERSHIP, Trustor, to SECURITY TITLE AGENCY. AN ARIZONA CORPORATION,
Trustee, and recorded JULY 27, 1995, in Docket/Book 1789, Page 134, in the
records of Coconino County, Arizona, as it relates to the following described
real property:
An undivided 120/8,925 fee simple interest in and to the real property situated
in Coconino County, Arizona, more particularly described in Docket 1738, page
236 ET SEQ., at the office of the Coconino County Recorder, Coconino County,
Arizona. Together with all buildings, improvements and fixtures thereon.
IN WITNESS WHEREOF, said Beneficiaries have signed this instrument on December
19TH, 1995.
/s/ Xxxxxx Xxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxx Xxxxxxx, Beneficiary
The Xxxxxxx X. Xxxxxx Irrevocable
Trust dated June 1, 1989, Beneficiary
By: /s/ Xxxxxx X. Xxxxxxx, Trustee
---------------------------------
Xxxxxx X. Xxxxxxx, Trustee
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC.,
1995 by XXXXXX XXXX XXXXXXX.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC. 1995
by XXXXXX X. XXXXXXX who acknowledged to be the TRUSTEE of the XXXXXXX X. XXXXXX
IRREVOCABLE TRUST DATED JUNE 1, 1989, and that as such Trustee, being authorized
so to do, signed the name of the trust as such Trustee.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
Recording Requested by:
When recorded mail to:
Xxx Ciatu, Esq.
c/o 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
ASSIGNMENT OF BENEFICIAL MEREST UNDER DEED OF TRUST
FOR VALUE RECEIVED, the undersigned Beneficiaries hereby assign and transfer to
XXXXXX XXXX XXXXXXX, A SINGLE MAN all beneficial interest under that certain
Deed of Trust dated JULY 27, 1995 executed by LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, AN ARIZONA LIMITED PARTNERSHIP, Trustor, to SECURITY TITLE AGENCY,
AN ARIZONA CORPORATION, Trustee, and recorded JULY 27, 1995 in Docket/Book 1789,
Page 134, in the records of Coconino County, Arizona, as it relates to the
following described real property:
An undivided 100/8,925 fee simple interest in and to the real property situated
in Coconino County, Arizona, more particularly described in Docket 1738, page
236 ET SEQ., at the office of the Coconino County Recorder, Coconino County,
Arizona. Together with all buildings, improvements and fixtures thereon.
IN WITNESS WHEREOF, said Beneficiaries have signed this instrument on December
19TH, 1995.
/s/ Xxxxxx Xxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxx Xxxxxxx, Beneficiary
The Xxxxxxx X. Xxxxxx Irrevocable
Trust dated June 1, 1989, Beneficiary
By: /s/ Xxxxxx X. Xxxxxxx, Trustee
---------------------------------
Xxxxxx X. Xxxxxxx, Trustee
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC.,
1995 by XXXXXX XXXX XXXXXXX.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged and executed before me this 29 day of DEC. 1995
by XXXXXX X. XXXXXXX who acknowledged to be the TRUSTEE of the XXXXXXX X. XXXXXX
IRREVOCABLE TRUST DATED JUNE 1, 1989, and that as such Trustee, being authorized
so to do, signed the name of the trust as such Trustee.
My Commission Expires:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
EXHIBIT "D"
$250,000 XXXXXX/SVC NOTE
PROMISSORY NOTE
$250,000 January 1, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, an' Arizona limited partnership, and ILX INCORPORATED, an Arizona
corporation (the "undersigned"), jointly and severally, promise to pay to the
order of Xxxxxx X. Xxxxxxx as Trustee for the Xxxxxxx X. Xxxxxx Irrevocable
Trust dated June 1, 1989 ("Payee") , at Phoenix, Arizona, or at such other place
as the holder hereof may from time to time designate, the principal sum of Two
Hundred Fifty Thousand Dollars ($250,000), together with interest thereon as
computed below, as follows:
Payments of interest only shall be made quarterly on the first day of
January, April, July, and October of each year commencing April 1,
1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Interest shall be charged on the unpaid principal balance of this Note
from the date hereof to the date of maturity on a daily basis for the actual
number of days any portion of the principal is outstanding, computed on the
basis of a 360-day year, at a per annum rate (the "Note Rate") equal to ten
percent (10%).
Upon maturity of this Note, Payee shall have the option to convert all
or any portion of the balance outstanding hereunder into ILX Incorporated common
stock at a price of $2.00 per share; provided, however, that any such exercise
shall not cause Payee's interest, direct or indirect, in ILX Incorporated to
exceed 50%.
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by the Note Rate, and any additional charges, costs
and fees arising out of or related to the transaction of which this Note is a
part, to the extent deemed to be interest under applicable law.
Each and every payment due under this Note shall be made in lawful
money of the United State of America and in immediately available funds, and
when made shall be first applied to accrued costs, expenses and fees, if any,
then to accrued interest that has not yet been added to principal, and then to
the reduction of the principal amount of this Note. This Note may be prepaid, in
whole or in part, without penalty or premium, provided that each such payment
shall be applied as set forth above.
At the option of the holder hereof, any of the following shall
constitute a "default" hereunder, and, upon the occurrence of any of the
following, all obligations hereunder shall, at the option of the holder hereof,
become immediately due and payable, without presentment for payment, diligence,
grace, exhibition of this Note, protest, further demand or notice of any kind,
all of which are hereby expressly waived: (i) any sum owing hereunder or under
other indebtedness of the undersigned to Payee is not paid as agreed; (ii) any
petition or
1
application for any form of relief under any provision of Xxxxx 00, Xxxxxx
Xxxxxx Code, as amended from time to time (the "Bankruptcy Code") or any other
law pertaining to reorganization, insolvency or readjustment of debts is filed
by or against the undersigned, its assets or affairs; (iii) the undersigned
makes an assignment for the benefit of creditors, is not paying debts as they
become due, or is granted an order for relief under any chapter of the
Bankruptcy Code; (iv) a custodian, as defined by the Bankruptcy Code, takes
charge of any property of the undersigned; (v) garnishment, attachment, levy or
execution is issued against any of the property or effects of the undersigned;
(vi) there is a termination, failure to exist or dissolution of the undersigned;
or (vii) there is any default or breach of any representation, warranty or
covenant, or there is any false statement or material omission, by the
undersigned under any document forming part of the transaction in respect of
which this Note is made or forming part of any other transaction under which the
undersigned is indebted to Payee.
The undersigned hereby agree: (i) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(ii) that any written modification, extension or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest and other sums owing hereunder at
the time of such modification, renewal or extension are owed without adjustment
for offset, counterclaim or other defense of any kind by the undersigned against
Payee; (iii) that the acceptance by the holder hereof of any performance which
does not comply strictly with the terms hereof shall not be deemed to be a
waiver or bar of any right of said holder, nor a release of any obligation of
the undersigned to the holder hereof; (iv) to offsets of any sums or property
owed to the undersigned by the holder hereof at any time; (v) that this Note
shall be governed by the laws of the State of Arizona applicable to promissory
notes made and to be, paid in the State of Arizona; and (vi) to pay the holder
hereof upon demand any and all costs, expenses and fees (including reasonable
attorneys' fees) incurred in enforcing or attempting to recover payment of the
amounts due under this Note, including negotiating, documenting and otherwise
pursuing or consummating modifications, extensions, compositions, renewals or
other similar transactions pertaining to this Note, irrespective of the
existence of an event of default, and including costs, expenses and fees
incurred before, after or irrespective of whether suit is commenced, and in the
event suit is brought to enforce payment hereof, such costs, expenses and fees
and all other issues in such suit shall be determined by a court sitting without
a jury.
This Note is secured by a Deed of Trust and Assignment of Rents dated
July 27, 1995, as modified.
2
This Note is executed to be effective as of the date set forth above.
LOS ABRIGADOS PARTNERS LIMITED ILX INCORPORATED, an Arizona
PARTNERSHIP, an Arizona limited corporation
partnership By: /s/ Xxxxx X. Xxxxx
---------------------------------
By: ILE SEDONA INCORPORATED, an Its: Executive Vice President
Arizona corporation, its general --------------------------------
partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Its: Vice President
--------------------------------
3
EXHIBIT "E"
$230,000 EJM/SVC NOTE
PROMISSORY NOTE
$230,000 January 1, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, an' Arizona limited partnership, and ILX INCORPORATED, an Arizona
corporation (the "undersigned") , jointly and severally, promise to pay to the
order of Xxxxxx Xxxx Xxxxxxx ("Payee"), at Phoenix, Arizona, or at such other
place as the holder hereof may from time to time designate, the principal sum of
Two Hundred Thirty Thousand Dollars ($230,000), together with interest thereon
as computed below, as follows:
Payments of interest only shall be made quarterly on the first day of
January, April, July, and October of each year commencing April 1,
1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Interest shall be charged on the unpaid principal balance of this Note
from the date hereof to the date of maturity on a daily basis for the actual
number of days any portion of the principal is outstanding, computed on the
basis of a 360-day year, at a per annum rate (the "Note Rate") equal to ten
percent (10%).
Upon maturity of this Note, Payee shall have the option to convert all
or any portion of the balance outstanding hereunder into ILX Incorporated common
stock at a price of $2.00 per share; provided, however, that any such exercise
shall not cause Payee's interest, direct or indirect, in ILX Incorporated to
exceed 50%.
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by the Note Rate, and any additional charges, costs
and fees arising, out of or related to the transaction of which this Note is a
part, to the extent deemed to be interest under applicable law.
Each and every payment due under this Note shall be made in lawful
money of the United State of America and in immediately available funds, and
when made shall be first applied to accrued costs, expenses and fees, if any,
then to accrued interest that has not yet been added to principal, and then to
the reduction of the principal amount of this Note. This Note may be prepaid, in
whole or in part, without penalty or premium, provided that each such payment
shall be applied as set forth above.
At the option of the holder hereof, any of the following shall
constitute a "default" hereunder, and, upon the occurrence of any of the
following, all obligations hereunder shall, at the option of the holder hereof,
become immediately due and payable, without presentment for payment, diligence,
grace, exhibition of this Note, protest, further demand or notice of any kind,
all of which are hereby expressly waived: (i) any sum owing hereunder or under
other indebtedness of the undersigned to Payee is not paid as agreed; (ii) any
petition or application for any form of relief under any provision of Xxxxx 00,
Xxxxxx Xxxxxx Code, as
1
amended from time to time (the "Bankruptcy Code") or any other law pertaining to
reorganization, insolvency or readjustment of debts is filed by or against the
undersigned, its assets or affairs; (iii) the undersigned makes an assignment
for the benefit of creditors, is not paying debts as they become due, or is
granted an order for relief under any chapter of the Bankruptcy Code; (iv) a
custodian, as defined by the Bankruptcy Code, takes charge of any property of
the undersigned; (v) garnishment, attachment, levy or execution is issued
against any of the property or effects of the undersigned; (vi) there is a
termination, failure to exist or dissolution of the undersigned; or (vii) there
is any default or breach of any representation, warranty or covenant, or there
is any false statement or material omission, by the undersigned under any
document forming part of the transaction in respect of which this Note is made
or forming part of any other transaction under which the undersigned is indebted
to Payee.
The undersigned hereby agree: (i) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(ii) that any written modification, extension or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest and other sums owing hereunder at
the time of such modification, renewal or extension are owed without adjustment
for offset, counterclaim or other defense of any kind by the undersigned against
Payee; (iii) that the acceptance by the holder hereof of any performance which
does not comply strictly with the terms hereof shall not be deemed to be a
waiver or bar of any right of said holder, nor a release of any obligation of
the undersigned to the holder hereof; (iv) to offsets of any sums or property
owed to the undersigned by the holder hereof at any time; (v) that this Note
shall be governed by the laws of the State of Arizona applicable to promissory
notes made and to be paid in the State of Arizona; and (vi) to pay the holder
hereof upon demand any and all costs, expenses and fees (including reasonable
attorneys' fees) incurred in enforcing or attempting to recover payment of the
amounts due under this Note, including negotiating, documenting and otherwise
pursuing or consummating modifications, extensions, compositions, renewals or
other similar transactions pertaining to this Note, irrespective of the
existence of an event of default, and including costs, expenses and fees
incurred before, after or irrespective of whether suit is commenced, and in the
event suit is brought to enforce payment hereof, such costs, expenses and fees
and all other issues in such suit shall be determined by a court sitting without
a jury.
This Note is secured by a Deed of Trust and Assignment of Rents dated
July 27, 1995, as modified.
2
This Note is executed to be effective as of the date set forth above.
LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, an Arizona limited partnership
LOS ABRIGADOS PARTNERS LIMITED ILX INCORPORATED, an Arizona
PARTNERSHIP, an Arizona limited corporation
partnership By: /s/ Xxxxx X. Xxxxx
---------------------------------
By: ILE SEDONA INCORPORATED, an Its: Executive Vice President
Arizona corporation, its general --------------------------------
partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Its: Vice President
--------------------------------
3
EXHIBIT "F"
WARRANTY DEED AND AFFIDAVIT OF REAL PROPERTY VALUE
When recorded, mail to:
Xxxxxx Xxxx Xxxxxxx
c/o: General Counsel
0000 Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000
WARRANTY DEED
For the consideration of Ten Dollars, and other valuable
considerations, I or we, RED ROCK COLLECTION INCORPORATED, an Arizona
corporation, do hereby convey to Xxxxxx Xxxx Xxxxxxx, a single man, the
following real property situated in Maricopa county, Arizona:
The North 106 feet of Lots 4 and 5, of DUNDEE SUBDIVISION, according to
the plat of record in the office of the County Recorder of Maricopa
County, Arizona, recorded in Book 10 of Maps, Page 5.
EXCEPT the East 7 feet of the North 106 feet of Lot 5.
Subject to current taxes and assessments, reservations and all
easements, rights of way, covenants, conditions, restrictions, liens and
encumbrances of record.
And I or we do warrant the title against all persons whomsoever subject
to the matters above set forth.
Dated this 28th day of December, 1995.
RED ROCK COLLECTION INCORPORATED,
an Arizona corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Its: President
---------------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa
The foregoing instrument was acknowledged before me this 28th day of December,
1995, by Xxxxxxx X. Xxxxx, President of RED ROCK COLLECTION INCORPORATED, an
Arizona corporation, on behalf of the corporation.
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Notary Public
My commission will expire:
EXHIBIT "G"
ESCROW INSTRUCTIONS
ESCROW INSTRUCTIONS TO FIRST AMERICAN TITLE
0000 Xxxx Xxxxxxxxx Xx, Xxxxx 000, Xxxxxxx, XX. 00000
(000) 000-0000 ! Fax: (000) 000-0000
DATE: 12/27/95 ESCROW OFFICER: XXXXXX X. XXXXX ESCROW NO. 000-000-000000
RED ROCK COLLECTION INCORPORATED, an Arizona corporation
HEREIN CALLED SELLER
ADDRESS: 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000
TELEPHONE NO. home work (000) 000-0000
AND
XXXXXX XXXX XXXXXXX, an unmarried man
HEREIN CALLED BUYER
ADDRESS: 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000
TELEPHONE NO. home work (000) 000-0000
hereby employ FIRST AMERICAN TITLE INSURANCE COMPANY to act as ESCROW AGENT in
connection with a sale of the hereafter described property upon the following
terms and conditions, including the General Provisions incorporated herein,
which shall be complied with by said parties on 12/29/95 , except as otherwise
specified herein.
THESE INSTRUCTIONS ARE NOT BINDING UPON ESCROW AGENT UNTIL FULLY EXECUTED AND
DEPOSITED WITH ESCROW AGENT.
The North 106 feet of Lots 4 and 5, of DUNDEE SUBDIVISION, according to the plat
of record in the office of the County Recorder of Maricopa County, Arizona.
recorded in Book 10 of Maps, Page 5. EXCEPT the East 7 feet of the North 106
feet of Lot 5.
SELLER REPRESENTS PROPERTY ADDRESS TO BE: 0000 XXXXX 00XX XXXXXX, XXXXXXX,
XXXXXXX
==================================================================================================
SALES PRICE $500,000 PARTY OBLIGATIONS (X) SELLER BUYER
---------------------------------------------------------------------------------------------------
which is represented by: ESCROW FEE X X
XXXXXXX MONEY $ TITLE POLICY INSURING:
Paid Direct & Outside of Escrow $500,000 0OWNER X X
pursuant to agmt. between parties TRANSFER FEES (IF ANY) X X
IMPROVEMENT LIEN ASMTS X X
BROKER COMMISSION None Present. if any X
Future. if any X
FIRE INSURANCE POLICY Buyer to
obtain new outside of escrow.
RECORDING FEES: As per custom
THERE SHALL BE NO PRORATIONS
==================================================================================================
NET PROCEED due Seller to be payable NO PERSONAL PROPERTY INCLUDED IN
to Seller. THIS ESCROW.
==================================================================================================
SEE THE FOLLOWING PAGES FOR CONTINUED TERMS AND CONDITIONS
THESE ESCROW INSTRUCTIONS CONSIST OF 3 PAGES, PLUS ANY NOTED EXHIBITS
SELLER'S SIGNATURES: BUYER'S SIGNATURES:
RED ROCK COLLECTION INCORPORATED,
An Arizona Corporation /s/ Xxxxxx Xxxx Xxxxxxx
---------------------------------- ----------------------------------
XXXXXX XXXX XXXXXXX
By: /s/ Xxxxxxxx Xxxxx
---------------------------------- ----------------------------------
Its: President
Page 1 of 4
GENERAL PROVISIONS
SELLER AND BUYER AGREE:
1. That Escrow Agent, in connection with these instructions, cannot give legal
advice to any party hereto.
2. To deposit with Escrow Agent all documents and monies necessary to complete
the sale as established by the terms at these instructions.
3. That all funds for the escrow be paid to Escrow Agent unless otherwise
specified and that the disbursement of any funds be made by check of Escrow
Agent.
4. Escrow Agent is authorized to act upon any statement furnished by a
lienholder or his agent, without liability or responsibility for the
accuracy of such statements.
5. Escrow Agent is authorized to pay (ram available funds held by it for said
purposes any amounts necessary to procure documents and to pay charges and
obligations necessary to consummate this transaction.
6. Escrow Agent shall have no responsibility to see that fire insurance
provided for herein is renewed upon expiration or otherwise kept in force,
either during the interim and/or subsequent to close of escrow and further
authorize Escrow Agent to complete the necessary Fire Insurance Endorsement
Request.
7. That when these instructions and all title requirements have been complied
with, Escrow Agent is authorized to deliver or record in. the appropriate
public office all necessary documents. disburse all funds and have said
Title Insurance Policy issued.
8. That any amendments or addendums to these escrow instructions shall be in
writing, executed by the Seller and Buyer. Escrow Agent shall not be bound
by any unilateral instructions.
9. To indemnify and save harmless Escrow Agent against all costs, damages,
attorney's fees, expenses and liabilities which it may incur or sustain in
connection with these instructions or any interpleader action and will pay
the same on demand.
10. To grant Escrow Agent a lien upon the property herein described and
authority to reimburse and offset itself for its charges and for all damages
or expenses which it may incur or sustain in connection herewith, from all
of the rights, title and interest of the Seller and Buyer in all of the
documents and money deposited hereunder.
11. If any date for compliance with these instructions occurs an a day Escrow
Agent is closed for business, the requirement may be met on the next
succeeding day Escrow Agent is open for business. `Close at Escrow' shall
mean the effective date of the Policy of Title Insurance.
12. It either party. after having fully complied, elects to cancel these
instructions because of the failure of the other party to comply with any of
the terms within the time limits provided herein, the party electing to
cancel shall deliver to Escrow Agent a written notice these instructions
shall be cancelled. If other party fails to comply, these instructions shall
be cancelled. Escrow Agent shall:
First: Pay to the party electing to cancel any xxxxxxx money deposited, and
pay other money to the party who made the deposit.
Second: Return all documents deposited to the party who delivered them,
except documents executed by both Seller and Buyer, which shall be
retained in the cancelled Escrow file.
13. Escrow Agent shall, within three (3) days after receipt of any Notice,
Demand or Declaration, send it to the party to whom it is directed by
enclosing a copy of said instrument in an envelope addressed to said party
at the last written address which said party shall have filed with Escrow
Agent. If no written address has been filed, the notice shall be sent in
care of General Delivery at the City in which the office of the Escrow Agent
is located as shown on the first Page at these instructions. The notice
shall be deposited in the United States mail. The mailing of any such
instrument by Escrow Agent in the manner herein provided shall constitute
notice at the contents of such instrument to the party to whom the
instrument is directed as of the date of such mailing and no further notice
shall be required.
14. Escrow Agent shall not accept payments under a cancellation notice, unless
in cash, certified or cashier's check or money order.
15. It under these instructions a commission is to be paid to a licensed Real
Estate Broker, regardless of the provisions of Paragraph 12(a) above, upon
the cancellation of these instructions by notice the Real Estate Broker
shall receive one-half of the xxxxxxx money, not to exceed the total amount
of commission. Further, the party obligated to pay the commission shall not
acquiesce in any mutual cancellation without written approval of the Real
Estate Broker.
16. Escrow Agent has the right to resign upon written notice thereof mailed to
the parties ten (10) business days prior to the effective date. If such
right is exercised, all funds and documents shall be returned to the party
who deposited them except documents executed by both Seller and Buyer which
shall be retained in the cancelled Escrow file.
17. Escrow Agent may at its election, in the event of any conflicting demands
made upon it concerning these instructions or this escrow, hold any money
and documents deposited hereunder until it receives mutual instructions by
all parties or until a civil action shall have been concluded in a court of
competent jurisdiction, determining the rights of the parties. In the
alternative, Escrow Agent may at anytime at its discretion, commence a civil
action to interplead any conflicting demands to a court of competent
jurisdiction. In the event of any interpleader action commenced by Escrow
Agent, Escrow Agent shall be entitled to recover reasonable attorney's fees
and expert witness expenses together with all costs incurred in such action.
The order discharging Escrow Agent shall provide for the payment of such
fees and expenses from the amount deposited into court by Escrow Agent and,
to the extent such sum is insufficient to fully reimburse Escrow Agent. the
court shall designate the party or parties responsible for any additional
payment.
18. In the event of any litigation or arbitration relating to the interpretation
or enforcement of these instructions or any provision hereof, or seeking a
declaration of the rights or obligations of any party hereunder, the
prevailing party or parties in such proceedings will be entitled to recover,
in addition to any other available remedy, reasonable attorney's fees.
expert witness fees and all costs incurred therein, which fees and expenses
shall be determined by the court or arbitrator, and not by a jury, in a
separate proceeding. The rights of Escrow Agent
Page 2 of 4
under this provision are in addition to any rights which Escrow Agent may
have under any indemnification provision of these instructions. Any action
shall be commenced in the county in which the real property subject to these
instructions is situated.
19. To complete and execute the Standard Account Servicing Instructions of
Escrow Agent if Escrow Agent is hereby employed and appointed to act as
Account Servicing Agent.
20. The title insurance to be provided, unless otherwise specified, shall be
evidenced by the standard coverage form of title insurance of First American
Title Insurance Company, on file with the Insurance Director of the State of
Arizona subject to exceptions shown in the Commitment for Title Insurance
and Policy of Title Insurance issued.
NOTE: There are some matters for which First American Title assumes no
liability, including but not limited to unrecorded liens, personal
property taxes; transfer of personal property, utility charges,
boundary lines, location of improvements and possession; compliance
with zoning, building ordinances and building restrictions;
reservations and exceptions in Patents.
Page 3 of 4
ESCROW INSTRUCTIONS TO - FIRST AMERICAN TITLE
0000 Xxxx Xxxxxxxxx Xx, Xxxxx 000, Xxxxxxx, XX. 00000
(000) 000-0000
DATE: 12/27/95 ESCROW NO. 000-000-000000
--------------------------------------------------------------------------------
CONTINUED TERMS AND CONDITIONS:
1. The parties hereto agree these escrow instructions are the final agreement
between the Buyer and Seller.
2. The Buyer understands and agrees that the following items will be shown as
exceptions to Schedule B to the policy of title insurance to be issued in
conjunction herewith:
"A Deed of Trust given to secure an indebtedness in the original
principal amount of $100,000.00, together with any and all other
obligations secured thereby, dated March 16, 1993, recorded
April 1, 1993, in 00-0000000 of Official Records.
TRUSTOR : GPH PROPERTIES, INC., an Arizona corporation
TRUSTEE : M & I THUNDERBIRD BANK, an Arizona corporation
BENEFICIARY : M & I THUNDERBIRD BANK, an Arizona corporation
AND
A Deed of Trust given to secure an indebtedness in the original
principal amount of $225,000.00, together with any and all other
obligations secured thereby, dated January 18, 1994, recorded
February 17, 1994, in 00-0000000 of Official Records and
re-recorded November 4, 1994 in 00-0000000 of Official Records.
TRUSTOR : RED ROCK COLLECTION INCORPORATED, an Arizona
corporation
TRUSTEE : UNITED TITLE AGENCY OF ARIZONA, INC., an Arizona
corporation
BENEFICIARY : GPH PROPERTIES, INC., an Arizona corporation"
3. These Escrow Instructions may be signed in counterpart with each such
counterpart to be deemed an original hereof. Telefax signatures shall be fully
binding upon the parties and shall be deemed as if original.
Page 4 of 4
EXHIBIT "H"
RRC BUILDING LEASE
LEASE AGREEMENT
Xxxxxx Xxxx Xxxxxxx, hereafter "Landlord", agrees to lease to Red Rock
Collection Incorporated, an Arizona corporation, hereafter "Tenant", and Tenant
agrees to lease from Landlord, the real property situated in Maricopa County,
Arizona, more particularly described in Exhibit "A" attached hereto located at
0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx, hereafter "the premises", upon the
following terms and conditions:
1. TERM: The term of this Lease shall commence on the 29th day of December,
1995 and shall terminate on the 31st day of December, 1996. Tenant shall
have four options to extend the term, each for a successive additional one
calendar year period, by giving written notice thereof to Landlord at least
thirty (30) days in advance of the commencement of such extended term.
2. POSSESSION: Tenant shall take possession of the premises on December 29,
1995. Tenant shall be bound by all provisions of this Lease, including the
payment of rent, at all times Tenant is in possession of the premises.
3. RENT: Tenant agrees to pay Landlord as base rent FOUR THOUSAND DOLLARS
($4,000) per month for each month of the Lease. Rent is due on or before the
last day of each month and is payable at Landlord's offices or at such other
place as Landlord may designate in writing. Rent shall be prorated on the
basis of a thirty (30) day month for each partial month during the term of
this Lease or during which Tenant is in possession of the premises. All
other monetary obligations of Tenant under this Lease shall constitute
additional rent and shall be due as specified in each instance.
4. TAXES AND ASSESSMENTS: Tenant agrees to pay as additional rent during each
lease year or partial lease year of the term of this lease, all real estate
taxes and assessments levied and assessed for any such year upon the
premises and the underlying realty. For any partial lease year of the term
hereof such amount shall be pro rated on a daily basis. The amount to be
paid by Tenant shall be paid to Landlord at least five (5) days before the
due date thereof.
Tenant shall pay to Landlord, in addition to and along with the rental
otherwise payable hereunder, any excise, transaction, sales or privilege tax
now or hereafter imposed by any government or agency upon Landlord and
attributed to or measured by rent or prorations payable by Tenant.
5. OPERATING EXPENSES: The operating expenses of the premises shall be paid by
Tenant. The operating expenses of the Project include without limitation:
property taxes, special assessments, utilities, maintenance, supplies,
management fees, janitorial services, trash removal, fire and liability
insurance premiums, repairs and all other costs which can properly be
considered expenses of operating and maintaining the building and
surrounding property of which the premises are a part, including necessary
capital expenditures. Without limiting the generality of the foregoing,
Tenant shall at its own expense and at all times maintain the premises in
good and safe condition, including plate glass, heating and air conditioning
units, roof, exterior walls, electrical wiring, plumbing
1
and any other systems or equipment upon the premises. Tenant will promptly
pay when due all electric, water, gas and other similar charges directly
attributable to the premises.
6. USE OF PREMISES: Tenant shall use the premises for the sole purpose of
office/warehouse use and shall not use or allow the premises to be used for
any illegal or objectionable purpose. Tenant shall at its own cost and
expense obtain all licenses and permits necessary for such use. Tenant shall
use its best efforts to comply with all governmental laws, ordinances and
regulations applicable to the use of the demised premises, and shall use its
best efforts to promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the use of the demised premises all at Tenant's sole
expense. Tenant shall not operate its business in such manner so as to
constitute an annoyance to other tenants and shall endeavor to control its
customers so as to maintain an orderly premises. Tenant shall not do or
permit anything to be done which would increase the cost of any fire,
extended coverage or any other insurance covering the premises.
7. REPAIR: Tenant shall at its own expense keep the premises in good condition
and repair.
8. ASSIGNMENT: Tenant shall not assign or hypothecate this Lease, or enter into
a sublease relating to all or any portion of the premises, without
Landlord's prior written consent, which consent may be withheld in
Landlord's sole discretion. Any such assignment or subletting without
consent shall be void. Landlord's approval of any such assignment or
sublease shall not release Tenant from its obligations under this Lease or
constitute assent to any subsequent assignment or sublease.
9. RETURN OF PREMISES: Upon the termination of this Lease, Tenant shall return
the premises to Landlord in its original condition, ordinary wear and tear
and alterations or improvements not designated to be removed excepted.
10. INSURANCE: Tenant, during the term hereof, at its own expense, will provide
and keep in force for the benefit of Landlord and Tenant, as their
respective interests may appear, fire, comprehensive, plate glass and
general and public liability insurance protection with respect to the
premises and for claims for personal injury or death or property damage in
and about the premises with limits not less than $1,000,000 in the event of
bodily injury or death of any number of persons in any one accident and
limits of not less that $1,000,000 for damage to property, and shall provide
Landlord with a copy of the policy upon Landlord's written request. Tenant
shall name Landlord as an additional insured under the policy and provide
Landlord a certificate of insurance. The insurance shall be primary
insurance and shall provide that any right of subrogation against Landlord
is waived. The policy shall further provide that no act or omission by
Tenant shall impair the rights of the insured to receive the proceeds of the
policy and that the policy shall not be canceled except upon thirty (30)
days prior written notice to each named insured.
11. INDEMNIFICATION: Tenant shall indemnify, defend and hold Landlord harmless
from all actions, claims, demands, penalties or liabilities arising out of
events occurring in or about the premises or caused in whole or in part by
Tenant or Tenant's agents, servants,
2
employees or invites, except for matters attributable to Landlord's willful
misconduct or gross negligence. This indemnification shall include all costs
and expenses and reasonable attorney's fees which Landlord may expend in
connection with any of the foregoing.
12. LIMITATION OF LIABILITY: Landlord shall not be liable to Tenant for damages
nor shall Tenant be entitled to a reduction in rent by reason of any of the
following: (i) Landlord's failure to provide utilities or services when such
failure is caused by accident, repairs, strikes, disturbances or any other
cause beyond the reasonable control of Landlord (ii) disruption to Tenant's
business caused by Landlord's repairs or improvements to the project (iii)
damages to the premises or Tenant's property unless caused by Landlord's
gross negligence or willful misconduct.
13. NOTICE: All notices or demands under this Lease or required to be given by
law are to be made in writing by registered or certified mail, return
receipt requested, and are deemed given when deposited in the United States
mail postage prepaid and addressed to Landlord or Tenant at the addresses
set forth on the signature page of this Lease. Each party shall have the
right, from time to time, to designate a different address to which notices
and demands are to be sent by giving notice in the manner provided for above
except that Landlord may in any event use the premises as Tenant's address
for notice purposes.
14. ENTRY BY LANDLORD: Landlord shall have the right to enter the premises at
all reasonable times for the purposes of inspecting, repairing or
maintaining the premises, determining whether the terms of the Lease are
being complied with, posting such notices as Landlord deems advisable for
its protection, and showing the premises to prospective tenants, purchasers
or lenders. Landlord may at any time within ninety (90) days prior to the
expiration of this lease place upon the premises any customary "For Lease"
signs, and reasonably permit persons desiring to lease the same to inspect
the premises.
15. DEFAULT & REMEDIES:
(a) The occurrence of one or more of the following events shall constitute a
default of this Lease by Tenant:
(1) The abandonment of the premises by Tenant or absence of Tenant from
premises for thirty (30) days or longer while failing to comply with
any provision of this Lease.
(2) The failure by Tenant to make any payment of rent or other payment
required to be made by Tenant under this Lease when due.
(3) The failure by Tenant to observe or perform any provision of this
Lease other than the payment of money where such failure continues
for a period of thirty (30) days after written notice thereof from
Landlord to Tenant. This notice shall be in lieu of, and not in
addition to, any notice required under Arizona law.
3
(4) (i) The making by Tenant of any general assignment for the benefit
of creditors; (ii) the filing by or against Tenant of a petition
under the United States Bankruptcy Code unless dismissed within
thirty (30) days; (iii) the appointment of a receiver or trustee to
take possession of substantially all of Tenant's assets located at
the premises or of this Lease where possession is not restored to
Tenant within thirty (30) days; (iv) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets
located on the premises where such seizure is not discharged within
thirty (30) days.
(b) In the event of any default by Tenant as defined above. Landlord may
exercise one or more of the following remedies in addition to any remedy
provided for at law or equity:
(1) With or without notice or process of law and using such force as
Landlord may deem reasonably necessary under the circumstances, and
without terminating this Lease or relieving Tenant of any obligation
hereunder, Landlord may re-enter and take possession of the premises
and of all property located therein. Under no circumstances shall
Landlord be liable in damages or otherwise by reason of the exercise
by Landlord of any such re-entry or eviction, or by reason of the
exercise by Landlord of any other remedy provided in this
subparagraph (b).
(2) In the event that Landlord recovers possession of the premises
without termination of this Lease, Tenant shall pay to Landlord all
sums due under this Lease on the dates due as if Tenant remained in
possession of the premises.
(3) Landlord may recover from Tenant, and Tenant shall pay upon demand,
all expenses incurred in recovering possession of the premises,
repairing and altering the premises for reletting, and attempting to
relet the premises, including commissions and attorney fees.
(c) The remedies described in subparagraph (b) are cumulative and in
addition to any remedy at law or in equity. The filing of an action by
Landlord against Tenant requesting under one or more remedies shall not
be deemed an election of that remedy or remedies to the exclusion of all
others.
(d) Landlord shall be under no obligation to observe or perform any duty
imposed by this Lease which accrues after the date of any default by
Tenant.
(e) The failure or delay of Landlord in exercising any right or remedy shall
not be construed as a waiver of any such right or remedy or of any
default by Tenant.
4
16. ATTORNEY'S FEES: In the event any action or proceeding is brought by either
party against the other under this Lease, the prevailing party shall be
entitled to recover from the other party its reasonable costs, expenses and
attorneys' fees.
17. WAIVER: The waiver by Landlord of Tenant's breach by any provision of this
Lease shall not constitute a continuing waiver of any subsequent breach by
Tenant of the same or other provision.
18. DEFAULT BY LANDLORD: Landlord shall not be in default unless Landlord fails
to perform is obligations under this Lease within thirty (30) days after
written notice by Tenant to Landlord specifying the obligations which the
Landlord has failed to perform. If an obligation is such that it cannot
reasonably be completed within such thirty (30) day period, Landlord shall
not be in default if Landlord commences performance within thirty (30) days
and thereafter diligently prosecutes the same to completion.
19. SURRENDER OF PREMISES: The surrender of this lease by Tenant to Landlord
shall not work a merger and shall, at the option of Landlord, operate as an
assignment to it of any subleases affecting the premises.
20. ESTOPPEL CERTIFICATE:
(a) Tenant shall upon not less than five (5) days prior written notice from
Landlord execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force
and effect and if modified, stating the nature of such modification and
certifying that this Lease as modified is in full force and effect, (ii)
specifying the dates to which rental and other charges are paid in
advance, and (iii) acknowledging that there are no uncured defaults on
the part of Landlord or specifying such defaults if any are claimed. Any
such statement may be relied upon by any prospective purchaser or
encumbrancer of the real property of which the premises are a part.
(b) Tenant's failure to deliver such a statement within the time specified
above shall be conclusive upon Tenant (i) that this Lease is in full
force and effect and without modification except as may be represented
by Landlord, and (ii) that there are no uncured defaults by Landlord.
21. CONDITION OF PREMISES: Tenant acknowledges that neither the Landlord nor any
of the Landlord's agents has made any representation or warranty with
respect to the premises or building or with respect to the suitability of
either for the conduct of Tenant's business. Taking possession of the
premises by Tenant shall conclusively establish that the premises and
building were in good, sanitary order, condition and repair at such time.
22. DESTRUCTION OF PREMISES: In the event that the premises or the building of
which the premises are a part are destroyed in whole or in part by fire or
other casualty, Landlord may terminate this Lease at its option. If Landlord
does not terminate this Lease and elects to repair the damage, this Lease
shall remain in full force and effect.
5
23. CONDEMNATION: If all or a portion of the leased premises are appropriated by
a public or quasi-public authority under the power of eminent domain or are
transferred by Landlord in lieu thereof, Landlord may terminate this Lease
without liability to Tenant for any unexpired term of this Lease. If this
Lease is not terminated as a result of such appropriation or transfer, base
rent shall be equitably reduced. In either event, Landlord shall be entitled
to the entire condemnation award or settlement except that Tenant shall be
entitled to any award made by such authority specifically to Tenant for
moving expenses or damages for disruption to Tenant's business.
24. LATE CHARGES: All sums due under this Lease not paid by Tenant within ten
(10) days from the date such payment is due shall be subject to a late
charge of the greater of Twenty Dollars ($20.00) or Five Percent (5%) of the
amount due and shall bear interest at a rate of Eighteen Percent (18%) per
annum until paid.
25. SALE BY LANDLORD: In the event of a sale or conveyance by Landlord of the
premises, the same shall operate to release Landlord from any future
liability upon any of the covenants or conditions, express or implied,
herein contained in favor of Tenant (so long as the purchaser expressly
assumes such liability), and in such event Tenant agrees to look solely to
the responsibility of the successor in interest of Landlord in and to this
Lease. This Lease shall not be affected by any such sale, and Tenant agrees
to attorn to the purchaser or assignee.
26. LANDLORD'S CONSENT: Except as otherwise provided herein, where Landlord's
consent is required under this Lease, such consent shall not be unreasonably
withheld.
27. APPLICABLE LAW: This lease shall be governed by the laws of the State of
Arizona.
28. TIME OF ESSENCE: Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Lease agreement
effective as of the 29th day of December, 1995.
LANDLORD: TENANT:
/s/ Xxxxxx Xxxx Xxxxxxx Red Rock Collection Incorporated
-------------------------------
Xxxxxx Xxxx Xxxxxxx
By: /s/ Xxxxxxx Xxxxx
0000 X. Xxxxxxxxx Xxxx -------------------------------
Xxxxxxx, XX 00000 Its: PRESIDENT
-------------------------------
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
6
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
The North 106 feet of Lots 4 and 5, of DUNDEE SUBDIVISION, according to the plat
of record in the office of the County Recorder of Maricopa County, Arizona,
recorded in Book 10 of Maps, Page 5.
EXCEPT the East 7 feet of the North 106 feet of Lot 5.
7
EXHIBIT "I"
$100,000 PROMISSORY NOTE
PROMISSORY NOTE
$100,000 January 1, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, an Arizona limited partnership (the "undersigned"), promises to pay
to the order of Xxxxxxx Enterprises Incorporated, an Arizona corporation
("Payee") , at Phoenix, Arizona, or at such other place as the holder hereof may
from time to time designate, the principal sum of One Hundred Thousand Dollars
($100,000), together with interest thereon as computed below, as follows:
Payments of interest only shall be made quarterly on the first day of
January, April, July, and October of each year commencing April 1,
1996. The entire unpaid principal balance, together with all accrued
and unpaid interest thereon and other costs payable hereunder, shall be
paid in full on December 31, 1999.
Interest shall be charged on the unpaid principal balance of this Note
from the date hereof to the date of maturity on a daily basis for the actual
number of days any portion of the principal is outstanding, computed on the
basis of a 360-day year, at a per annum rate (the "Note Rate") equal to ten
percent (10%).
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by the Note Rate, and any additional charges, costs
and fees arising out of or related to the transaction of which this Note is a
part, to the extent deemed to be interest under applicable law.
Each and every payment due under this Note shall be made in lawful
money of the United State of America and in immediately available funds, and
when made shall be first applied to accrued costs, expenses and fees, if any,
then to accrued interest that has not yet been added to principal, and then to
the reduction of the principal amount of this Note. This Note may be prepaid, in
whole or in part, Without penalty or premium, provided that each such payment
shall be applied as set forth above.
At the option of the holder hereof, any of the following shall
constitute a "default" hereunder, and, upon the occurrence of any of the
following, all obligations hereunder shall, at the option of the holder hereof,
become immediately due and payable, without presentment for payment, diligence,
grace, exhibition of this Note, protest, further demand or notice of any kind,
all of which are hereby expressly waived: (i) any sum owing hereunder or under
other indebtedness of the undersigned to Payee is not paid as agreed; (ii) any
petition or application for any form of relief under any provision of Xxxxx 00,
Xxxxxx Xxxxxx Code, as amended from time to time (the "Bankruptcy Code") or any
other law pertaining to reorganization, insolvency or readjustment of debts is
filed by or against the undersigned, its assets or affairs; (iii) the
undersigned makes an assignment for the benefit of creditors, is not paying
debts as they become due, or is granted an order for relief under any chapter of
the
1
Bankruptcy Code; (iv) a custodian, as defined by the Bankruptcy Code, takes
charge of any property of the undersigned; (v) garnishment, attachment, levy or
execution is issued against any of the property or effects of the undersigned;
(vi) there is a termination, failure to exist or dissolution of the undersigned;
or (vii) there is any default or breach of any representation, warranty or
covenant, or there is any false statement or material omission, by the
undersigned under any document forming part of the transaction in respect of
which this Note is made or forming part of any other transaction under which the
undersigned is indebted to Payee.
The undersigned hereby agree: (i) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(ii) that any written modification, extension or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest and other sums owing hereunder at
the time of such modification, renewal or extension are owed without adjustment
for offset, counterclaim or other defense of any kind by the undersigned against
Payee; (iii) that the acceptance by the holder hereof of any performance which
does not comply strictly with the terms hereof shall not be deemed to be a
waiver or bar of any right of said holder, nor a release of any obligation of
the undersigned to the holder hereof; (iv) to offsets of any sums or property
owed to the undersigned by the holder hereof at any time; (v) that this Note
shall be governed by the laws of the State of Arizona applicable to promissory
notes made and to be paid in the State of Arizona; and (vi) to pay the holder
hereof upon demand any and all costs, expenses and fees (including reasonable
attorneys' fees) incurred in enforcing or attempting to recover payment of the
amounts due under this Note, including negotiating, documenting and otherwise
pursuing or consummating modifications, extensions, compositions, renewals or
other similar transactions pertaining to this Note, irrespective of the
existence of an event of default, and including costs, expenses and fees
incurred before, after or irrespective of whether suit is commenced, and in the
event suit is brought to enforce payment hereof, such costs, expenses and fees
and all other issues in such suit shall be determined by a court sitting without
a jury.
This Note is unsecured.
This Note is executed to be effective as of the date set forth above.
LOS ABRIGADOS PARTNERS
LIMITED PARTNERSHIP,
an Arizona limited partnership
By: ILE SEDONA INCORPORATED,
an Arizona corporation,
its general partner
By:/s/ Xxxxx X. Xxxxx
-------------------------------
Its: Vice President
------------------------------
2
FIRST AMERICAN TITLE INSURANCE COMPANY
0000 Xxxx Xxxxxxxxx Xxxx x Xxxxx 000 x Xxxxxxx, Xxxxxxx 00000
(000) 000-0000 o FAX (000) 000-0000
SETTLEMENT STATEMENT
PRE-AUDIT ONLY 12/27/1995 ( 1:09 PM) SUBJECT TO ADJUSTMENTS AT CLOSING
DATE: December 27, 1995 SETTLEMENT DATE:
ESCROW OFFICER: XXXXXX X. XXXXX ESCROW NUMBER: 000-000-000000
SELLER: RED ROCK COLLECTION INCORPORATED, AN ARIZONA CORPORATION
BUYER: PART OF LOTS 4 & 5, DUNDEE SUBDIVISION (10/5)
0000 XXXXX 00XX XXXXXX, XXXXXXX, XXXXXXX
=========================================================================================
SELLER BUYER
CHARGES CREDITS CHARGES CREDITS
=========================================================================================
SALES PRICE 500,000.00 500,000.00
PAID DIRECT & OUTSIDE ESCROW 500,000.00 500,000
PER AGREEMENT
DISBURSEMENT/CHARGES
--------------------
FIRST AMERICAN TITLE
ESCROW FEE 228.55 228.55
TITLE INSURANCE 1,092.00
RECORDING FEES 8.00
AFFIDAVIT OF VALUE 2.00
--------------------------------------------------------------------------------------------
SUB TOTALS: 501,322.55 500,000.00 500,236.55 500,000.00
FUNDS DUE FROM SELLER 1,322.55
FUNDS DUE FROM BUYER 236.55
TOTALS: 501,322.55 501,322.55 500,236.55 500,236.55
CONSENT TO ACTION BY DIRECTORS OF
RED ROCK COLLECTION INCORPORATED
WITHOUT A MEETING
EFFECTIVE AS OF DECEMBER 29, 1995
The undersigned, being all of the directors of the above-named Arizona
corporation (the "Corporation"), hereby consent to the adoption of the following
resolutions without a meeting:
RESOLVED, that Xxxxxx X. Xxxxxxx as Chairman, Xxxxxxx X. Xxxxx as
President, or Xxxxx X. Xxxxx as Vice President of the Corporation is
hereby authorized and empowered to take all such actions, execute all
such documents or instruments and make and/or receive all such payments
as shall be necessary or appropriate to consummate the real estate
transaction that is the subject of Escrow No. 000-000-000000 at First
American Title Insurance Company.
The action taken hereby shall be of the same force and effect as if taken at a
meeting of the directors of the Corporation, duly called and constituted
pursuant to law.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
