EXHIBIT 10.2
AMENDMENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AMENDMENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter
referred to as the "Amending Agreement") is entered into as of this 13th day of
August 2002, by and between Stage Coach Investments Ltd. Liability Co. (on
behalf of Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx and their assigns), and R. Xxxxx
Xxxxxxxxx (collectively hereinafter referred to as "Assignor"); Matrix Funding
Corp., a Colorado corporation, (hereinafter referred to as "Assignee"), and
Xxxxxxxxx Enterprises, Inc.(hereinafter referred to as "NEI")
RECITALS
WHEREAS, on the twentieth day of June, 1996 Assignor and Assignee
entered into an agreement titled "Assignment and Assumption Agreement"
(hereinafter referred to as the "Initial Agreement") for the purpose of
assigning certain real property interests to promote the development of certain
real property located in the city of Fort Xxxxxx, County of Weld, State of
Colorado, and more fully described in that certain Fort Xxxxxx Golf Course
Residential and Planned Unit Development Agreement, (hereinafter referred to as
the "PUD Agreement") dated November 28, 1995; and
WHEREAS, the parties to the Initial Agreement have, over the past five
years, diligently pursued the development of the property to the PUD agreement,
such property now commonly known as Coyote Creek (hereinafter referred to as the
"Project"); and
WHEREAS, since the execution of the Initial Agreement, the Assignor and
Assignee have agreed to certain clarifications to the terms of the Initial
Agreement which they desire to record herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Preferred Return Calculation. The Preferred Return required in
Paragraph 6 of the Initial Agreement, shall be computed upon the Farm
Acquisition Costs ($1,300,000) and up to an additional Five Hundred Thousand
dollars ($500,000) deposited into the Development Account which amount is agreed
by the parties to be in the amount of $1,800,000 and is the total subject to the
preferred return.(hereinafter referred to as the "Preferred Capital Amount").
The Preferred Return shall be calculated annually on the average annual balance
of the Preferred Capital Amount on December 31 of each year.
2. Funds Advanced by Matrix in excess of the Preferred Capital Amount.
Any funds advanced by Matrix in excess of the Preferred Capital Amount
(hereinafter referred to as the "Excess Funds") shall be treated as a commercial
loan in support of the Project and shall accrue interest at 1% over the prime
rate as published by the Wall Street Journal. Interest and principal paid on the
Excess Funds shall be charged as a Project Cost. Funds that Matrix anticipates
to advance pursuant to the proposed settlement agreement with the city of Fort
Xxxxxx for purchase of prepaid Golf Course enhancement fees, prepaid C-BT water
fees and cost of related letters of credit shall be included in Project Costs
and bear interest in the same manner.
3. Interest on Initial Outside Development Loan. Interest and loan fees
on the initial development loan procured by Matrix from First Security Bank
("FSB") dated June 21, 1996 shall be borne solely by Matrix and shall not be a
Project Cost. This interest and loan fees shall not be shown in the accounting
records of the Project.
4. Cost of Xxxx Xxxxx & Cimarron Consultants. The costs incurred
subsequent to December 31, 2001 of employing Xxxx Xxxxx and his company Cimarron
Consultants (collectively hereinafter referred to as "Xxxxx") related to the Ft.
Xxxxxx project shall be considered a project cost and as such shall be charged
to and funded by the project. The costs so charged shall include but not be
limited to the following: a) general administrative expense involved in
preparation of draws and financial reporting, b) supervising the platting
process, c) the cost of sales and marketing on the project, d) negotiation of
water rights; e) negotiation of easements and right of way; f) negotiation of
surface use agreements; g) Coyote Creek master association; and h) construction
management. This allocation of costs incurred through Xxxxx shall be effective
on or after January 1, 2002 and the Project shall reimburse NEI upon execution
of this Amending Agreement for the portion of Xxxxx'x costs which are Project
Cost and which NEI has paid from January 1, 2002 to present.
5. Annual Accounting. Exhibit A is incorporated herein and agreed to by
the parties as the accounting summary for the Project as of December 31, 2001.
Exhibit A presents the financial status of the Project and includes: 1) the
accumulated Project Costs; 2) the accumulated Project Revenue; 3) the Excess
Funds; 4) the accrued interest on the Excess Funds; 5) the Preferred Capital
Amount; and 6) the accumulated Preferred Return on the Preferred Capital Amount.
An accounting report shall be prepared each subsequent year hereafter. Matrix
and NEI shall annually agree on the submitted Annual Accounting Report.
6. Legal Costs Related to the Amending Agreement. The parties agree
that 50% of the legal costs incurred in the negotiation and preparation of the
Amending Agreement shall be considered a Project Cost. NEI shall be reimbursed,
as a Project Cost, for 50% of the cost of legal services rendered by Xxxxxx and
Xxxxxxxx, X.X., relating to the amendment of the Initial Agreement which NEI has
previously paid.
7. Definitions. Except as specifically put forth in this Amending
Agreement all terms shall have the same meanings as in the Initial Agreement.
8. Relationship Between Agreements. In the event of any inconsistency
between the terms of this Amending Agreement and the terms of the Initial
Agreement, the terms of this Amending Agreement shall control.
9. Full Force and Effect. The parties acknowledge that the Initial
Agreement is in full force and effect, that there is no default thereunder by
either party and that there are no other agreements between the parties except
as described therein.
10. Paragraph Headings. The paragraph headings are inserted only for
convenient reference and do not define, limit or prescribe the scope of this
Amending Agreement.
11. Facsimile signatures. Facsimile signatures will be accepted and
have the same force and effect as original signatures.
12. Counterparts. This document may be executed in counterparts and
such execution will have the same force and effect as if the document was
executed simultaneously.
IN WITNESS WHEREOF the parties have caused this Amending Agreement to
be executed as of the date set forth above.
ASSIGNOR:
/s/ Xxxxxxx XxXxxx
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Xxxxxxx XxXxxx, Manager
Stage Coach Investments, LLC
/s/ R. Xxxxx Xxxxxxxxx
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R. Xxxxx Xxxxxxxxx
ASSIGNEE:
MATRIX FUNDING CORP.
/s/ Xxxxxxx Xxxxxxx
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By: Xxxxxxx Xxxxxxx, President
Xxxxxxxxx Enterprises, Inc.
/s/ R. Xxxxx Xxxxxxx
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R. Xxxxx Xxxxxxx, VP, Treasurer