AGREEMENT
This Agreement is made and entered into as of the 26th day of July, 1999,
by and among the following parties: ILX Resorts Incorporated, an Arizona
corporation ("ILX"), Xxxxxxx Enterprises Incorporated, an Arizona corporation
("MEI"), Los Abrigados Partners Limited Partnership, an Arizona limited
partnership ("LAP") and Xxxxxx Xxxx Xxxxxxx, a married man dealing with his sole
and separate property ("EJM").
RECITALS
A. The parties desire to effect certain transactions whereby certain
existing agreements will be modified or otherwise affected; namely those
transactions represented by the following documents and/or described below:
Installment Promissory Note in the face amount of $909,078 dated January 1,
1996 made by ILX payable to EJM (the "EJM/LAP Note"), which note is secured
by ILX's Class A limited partnership interest in LAP.
The sale by MEI to ILX and/or its nominee of certain vacation ownership
interests in ILX Premiere Vacation Club, an Arizona non-profit corporation
and VCA South Bend Incorporated, an Arizona non-profit corporation.
B. The parties desire to memorialize said transactions by this one,
all-inclusive agreement.
AGREEMENT
1. MODIFICATION OF EJM NOTE. Effective on August 1, 1999, 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 to read as follows:
Principal payments of $94,078.00 on or before August 15, 1999 and
$100,000.00 on or before December 15, 1999. Installments of interest only
at ten percent (10%) per annum shall be payable quarterly on the first day
of January, April, July and October of each year commencing October 1,
1999. 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 15, 2003.
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. SALE OF VACATION OWNERSHIP INTERESTS. Effective August 1, 1999, MEI
shall sell and convey to ILX and/or its nominee, a total of sixty (60) vacation
ownership interests for a purchase price of $500,000.00. Such vacation ownership
interests consist of four (4) ILX Premiere Vacation Club Platinum memberships;
fifty (50) ILX Premiere Vacation Club Gold memberships and six (6) Varsity Clubs
of America - South Bend Chapter Alumni House (3 bedroom) extended football
weekend memberships. ILX shall issue to MEI a Promissory Note ("MEI Note") in
the form attached hereto as EXHIBIT B in the amount of $500,000.00 payable as
follows:
Principal payments of $100,000.00 on or before August 15, 1999, and
$100,000.00 on or before December 15, 2000 and December 15, 2001. Payments
of interest only at eight percent (8%) per annum shall be payable quarterly
on the first day of January, April, July and October of each year
commencing October 1, 1999. 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 15, 2002.
This MEI Note shall be secured by a Security Agreement, dated July 1, 1994,
also securing the EJM/LAP Note.
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3. 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. 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 other provision of this
Agreement 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.
Effective as of the date and year first written above.
ILX Resorts Incorporated
By: /s/ Xxxxx X. Xxxxx
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Its: President
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Xxxxxxx Enterprises Incorporated
By: /s/ Xxxxxx X. Xxxxxxx
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Its: Chairman
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Los Abrigados Partners Limited Partnership
By: ILE Sedona Incorporated, General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Its: Chairman
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/s/ Xxxxxx Xxxx Xxxxxxx
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Xxxxxx Xxxx Xxxxxxx
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EXHIBIT A
$909,078 EJM/LAP NOTE (AMENDED AND RESTATED)
A-1
INSTALLMENT PROMISSORY NOTE
(AMENDED AND RESTATED)
$894,078.00 August 1, 1999
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned, ILX Resorts Incorporated, an Arizona
corporation (the "undersigned"), promises to pay to the order of Xxxxxx X.
Xxxxxxx ("Payee"), at Tucson, Arizona, or at such other place as the holder
hereof may from time to time designate, the principal sum of Eight Hundred
Ninety-Four Thousand and Seventy Eight Dollars ($894,078.00), together with
interest thereon as computed below, as follows:
Principal payments of $94,078.00 on or before August 15, 1999 and
$100,000.00 on or before December 15, 1999. Installments of interest only
shall be payable quarterly on the first day of January, April, July and
October of each year commencing October 1, 1999. 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 15,
2003.
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 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 States 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 payments
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 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 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
A-2
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 suite shall be determined by a court sitting
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 RESORTS INCORPORATED, an Arizona corporation
By:
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Its:
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ATTEST:
By:
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Its:
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EXHIBIT B
$500,000 MEI NOTE
B-1
INSTALLMENT PROMISSORY NOTE
$500,000.00 August 1, 1999
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned, ILX Resorts Incorporated, an Arizona
corporation (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 Five Hundred Thousand Dollars ($500,000.00), together with
interest thereon as computed below, as follows:
Principal payments of $100,000.00 on or before August 15, 1999 and
$100,000.00 on or before December 15, 2000 and December 15, 2001.
Installments of interest only shall be payable quarterly on the first day
of January, April, July and October of each year commencing October 1,
1999. 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 15, 2002.
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%).
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 States 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 payments
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 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 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
B-2
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 suite shall be determined by a court sitting
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 RESORTS INCORPORATED, an Arizona corporation
By:
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Its:
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ATTEST:
By:
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Its:
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