TRANSFER AGREEMENT
EXHIBIT
99.1
THIS
TRANSFER AGREEMENT (this “Agreement”)
is entered into as of this 4th day of December, 2009, by and among INTEGRITY
PARTNERS, , LLC, a Nevada limited-liability company (“Integrity”),
VILLAGE AT LONE MOUNTAIN, LLC, a Nevada limited-liability company (“Village”),
and DESTINED TO INVESTIN, LLC, a Nevada limited-liability company (“DTI”);
PARKWILL EAGLE, LLC, a Nevada limited-liability company (the “Parkwill”);
VEGAS LAND & DEVELOPMENT, LLC, a Nevada limited-liability company (the
“Vegas Land
Borrower”); ASI CAPITAL CORPORATION, a Nevada corporation (the “Transferee”);
and XXXXX XXXXXXXX, XXXXX XXXXXXXX, XXXX XXXXXX and XXXXXXXX XXXXXX
(collectively “Guarantors,”
and each individually a “Guarantor”).
RECITALS
LOAN
ONE - INTEGRITY LOAN
A. Integrity
owns that certain real property, together with all easements, rights,
appurtenances, rents, royalties, mineral, oil and gas rights and profits, and
water rights appurtenant thereto (the “Integrity
Property”), which is located in the County of Xxxxx, State of Nevada, and
is specifically identified, and legally described, in the Exhibit
A-1 attached hereto and incorporated herein by this
reference.
B. On
or about December 7, 2005, Transferee made a loan to Integrity, Village, DTI,
Xxxx Xxxxxx and Xxxxx Xxxxxxxx (collectively, "Integrity
Borrower") in the principal amount of Seven Hundred Sixty Thousand and
No/100th Dollars ($760,000.00) (the “Integrity
Loan”), evidenced by that certain Secured Promissory Note of even date
therewith, which was amended on June 28, 2008 (the “Integrity
Note”). The Integrity Loan is secured by that certain Short
Form Deed of Trust in favor of Transferee that was recorded in the Office of the
County Recorder in and for Xxxxx County, Nevada on December 29, 2006 in Book No.
20061229 as Instrument No. 00529 (the “Integrity Deed of
Trust”). Collectively, the Integrity Note and the Integrity
Deed of Trust are referred to as the “Integrity Loan
Documents”.
LOAN
TWO - PARKWILL LOAN
C. Parkwill
is the owner of that certain real property, together with all easements, rights,
appurtenances, rents, royalties, mineral, oil and gas rights and profits, and
water rights appurtenant thereto (the “Parkwill
Property”), which is located in the County of Xxxxx, State of Nevada, and
is specifically identified, and legally described, in the Exhibit
A-2 attached hereto and incorporated herein by this
reference.
D. On
or about May 31, 2007, Transferee made a loan to Parkwill (sometimes referred to
herein as "Parkside Borrower") in the principal amount of One Million Five
Thousand and No/100th Dollars ($1,005,000.00) (the “Parkwill
Loan”), evidenced by that certain Secured Promissory Note dated May 31,
2007 (the “Parkwill
Note”). The Parkwill Loan is secured by that certain Short
Form Deed of Trust dated May 31, 2007, which was recorded in the Office of the
County Recorder in and for Xxxxx County, Nevada in Book No. 20070601 as
Instrument No. 0003867, and re-recorded on July 23, 2007, in the Office of the
County Recorder in Xxxxx County, Nevada in Book No. 20070723 as Instrument No.
0002421 (the “Parkwill Deed of
Trust”). Further, the Parkwill Loan is guaranteed by that
certain Guaranty dated May 31, 2007 (the “Parkwill
Guaranty”), which is made by each of the Guarantors in favor of
Transferee. Collectively, the Parkwill Note, the Parkwill Deed of
Trust, and the Parkwill Guaranty are referred to as the “Parkwill Loan
Documents”.
LOAN
THREE – VEGAS LAND LOAN
E. Vegas
Land (sometime referred to herein as the “Vegas Land
Borrower”) is the owner of that certain real property, together with all
easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights
and profits, and water rights appurtenant thereto (the “Vegas Land
Property”), which is located in the County of Xxxxx, State of Nevada, and
is specifically identified, and legally described, in the Exhibit
A-3 attached hereto and incorporated herein by this
reference.
F. On
or about July 30, 2007, Transferee made a loan to Vegas Land Borrower in the
principal amount of Seven Hundred Twenty-Five Thousand and No/100th Dollars
($725,000.00) (the “Vegas Land
Loan”), evidenced by that certain Secured Promissory Note dated July 30,
2007 (the “Vegas Land
Note”). The Vegas Land Loan is secured by that certain Short
Form Deed of Trust dated July 30, 2007, which was recorded in the Office of the
County Recorder in and for Xxxxx County, Nevada in Book No. 20070730 as
Instrument No. 03074 in the Office of the County Recorder in Xxxxx County,
Nevada (the “Vegas Land Deed
of Trust”). Further, the Vegas Land Loan is guaranteed by that
certain Guaranty dated July 30, 2007 (the “Vegas
Land Guaranty”), which is made by each of the Guarantors in
favor of Transferee. Collectively, the Vegas Land Note, the Vegas
Land Deed of Trust and the Vegas Land Guaranty are referred to as the “Vegas Land Loan
Documents”.
LOAN
DEFAULTS
G. As
of the date of this Agreement, each of Integrity Borrower, Parkwill Borrower and
Vegas Land Borrower (each in its respective capacity as borrower under the
applicable Loan, the “Transferor”)
is in default of their respective obligations under the Integrity Loan
Documents, the Parkwill Loan Documents and the Vegas Land Loan Documents
(collectively, the “Loan
Documents”), and the entire principal balance of each of the Integrity
Loan, the Parkwill Loan and the Vegas Land Loan (collectively, the “Loans”),
together with all accrued but unpaid interest, all penalties, and all late fees
are due and owing.
H. The
aggregate value of the Integrity Property, the Parkwill Property and the Vegas
Land Property (collectively, the “Property”)
encumbered by the Loans is reasonably equivalent to the aggregate principal
amount of the Loans.
I. Transferor
has offered to voluntarily transfer the Property to Transferee and to deliver
certain agreements and documents to Transferee, and Transferee is willing to
accept Transferor’s offer, all on the terms and conditions set forth in this
Agreement, including, without limitation, Transferee’s release of Transferor and
each Guarantor from personal liability with respect to the obligations under the
Loan Documents.
2
NOW,
THEREFORE, in consideration of the promises, agreements, and undertakings
contained in this Agreement and for other good and valuable consideration, the
receipt and adequacy of which are hereby mutually acknowledged, the parties
hereto hereby agree that the above recitals are true and correct and are hereby
incorporated herein by this reference and further agree as follows:
1.
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TRANSFER
OF PROPERTY
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Transferor
hereby agrees to transfer, and Transferee hereby agrees to accept title to, the
Property, subject to the terms and conditions set forth in this
Agreement. Transferor and Transferee each hereby acknowledge and
agree that the current fair market value of the Property is reasonably
equivalent to the aggregate principal amount of the Loans.
2.
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ACKNOWLEDGMENT
OF DEFAULT
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Transferor
and each Guarantor hereby acknowledges that it is in default of its respective
obligations under the Loan Documents, and that the entire unpaid principal
balance thereof, together with all accrued but unpaid interest, all penalties,
and all late fees thereupon, is immediately due and payable to Transferor
without offset, demand, defense, or counterclaim.
3.
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CLOSING
OF TRANSACTION
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Concurrently
with the execution of this Agreement:
(a) Each
Transferor shall deliver to Transferee an executed and acknowledged Deed in Lieu
of Foreclosure in the applicable form attached hereto as Exhibit
B, incorporated herein by this reference (the “Deed”).
(b) Transferor
and Guarantor shall deliver to Transferee and Transferee shall deliver to
Transferor and Guarantor, a Release for each Loan in the applicable form
attached hereto as Exhibit
C, incorporated herein by this reference.
(c) Any
and all transfer or other taxes incurred in connection with the closing of the
transaction contemplated in this Section 3 shall be the responsibility of
Transferee. In addition, there shall be no prorations made at the
close of escrow, the parties agreeing that Transferee shall be responsible for
any and all property taxes and other costs and expenses owing at the closing of
the transaction contemplated hereby and that Transferee shall benefit from any
prepaid taxes, costs, or expenses prior to closing of the transaction
contemplated hereby.
(d) Transferee
shall cause its title company (the “Title
Company”) to issue one or more CLTA Owner’s Policies of Title Insurance
(the “Title
Policy”) in the amount of the individual or aggregate principal amount of
the Loans, subject only to the following matters:
(i) a
lien for real property taxes, bonds, and assessments not then due;
and
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(ii) exceptions
otherwise approved by Transferee.
(e) Notwithstanding
anything contained in this Agreement to the contrary, Transferor and each
Guarantor hereby expressly acknowledges and agrees that Transferor’s obligations
under this Agreement are contingent not only on Transferor fulfilling its
obligations under this Agreement, but upon Transferor’s affiliates completing
the Affiliate Transfers.
4.
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REPRESENTATIONS,
WARRANTIES, AND COVENANTS
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Each
Transferor and each Guarantor hereby jointly and severally make the following
representations, warranties, and covenants to Transferee, which representations
and warranties shall survive the execution, delivery or this Agreement, and the
execution, delivery, and recordation of the Deed for the maximum period allowed
by applicable law:
(a) No filing
or petition under the federal bankruptcy law or any insolvency laws, or any laws
for composition of indebtedness or for the reorganization of debtors, has been
filed with regard to Transferor or any Guarantor, other than with regard to
Xxxxx Xxxxxxxx and Xxxxx Xxxxxxxx.
(b) Transferor
and each Guarantor have received the advice of competent legal counsel of their
own choosing in connection with the execution of this Agreement and all
documents executed in connection herewith, or have had ample opportunity to do
so and have elected not to seek such counsel.
(c) There are
no broker’s commissions or finder’s fees payable in connection with any
transaction contemplated by this Agreement.
(d) Neither
Transferor nor any Guarantor is a “foreign person” within the meaning of Section
1445(f)(3) of the Internal Revenue Code, as amended.
(e) To the
best of their knowledge, the agreed value of the Property as set forth in
Section 1 above is an accurate reflection of the fair market value of the
Property.
(f) The
transfer of the Property hereunder is not done with intent to hinder, delay or
defraud any creditor of Transferor or Guarantor and after giving effect to the
transfer of the Property to Transferee, as applicable, each Transferor
reasonably believes that it will have the ability to pay its debts as they
become due and its assets will not be unreasonably small in relation to its
liabilities.
(g) This
Agreement and all other documents delivered in connection herewith by Transferor
and each Guarantor have been duly authorized, executed, and delivered by
Transferor, are binding obligations of Transferor. Neither this
Agreement nor any other document to be delivered in connection herewith violates
the provisions of any other agreement to which Transferor or any Guarantor is a
party.
(h) The
execution, delivery, and recordation of the Deed is intended to, and shall
effect, an absolute conveyance and transfer of the Property and shall not
constitute a mortgage, trust conveyance, or security interest of any kind
therein.
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(i) It is the
intention of Transferor and each Guarantor for the Transferor, as the grantor in
the Deed, to convey to Transferee all of right, title, estate, and interest
absolutely in and to the applicable Property now vested in
Transferor. No Guarantor has any vested interest in any of the
Property.
(j) Possession
of the Property is intended to be, and will be, surrendered to Transferee
concurrent with the conveyance of title to Transferee.
(k) The
Guarantors are duly licensed as real estate sale persons and/or real estate
brokers in the State of Nevada.
(l) Following
the closing hereunder, neither the Transferor nor any Guarantor shall have any
right, title, lien, interest, estate, or claim, now or hereafter, on or against
the Property or Transferee. All other rights, titles, interests,
estates, liens, and claims of Transferor or any Guarantor, whether by agreement,
at law, or in equity, being hereby expressly waived, and to the extent that any
court shall seek to find any right, title, estate, interest, lien, or claim in
favor of Transferor or any Guarantor, the Transferor and each Guarantor hereby
agrees that such right, title, interest, estate, lien, or claim shall be limited
to a right to damages and not to any lien or claim on the Property.
(m) Neither
Transferor nor any Guarantor has performed any excavation, dumping, or burial of
any refuse materials or debris of any nature whatsoever on the Property, and to
the best of their knowledge no other person has performed such
activities. To the best of Transferor's and Guarantor's knowledge,
there are no Hazardous Substances on the Property that would subject Transferee
to any liability under any Environmental Law, including, but not limited to, the
disposal of any foreign objects or materials upon or in the Property, whether
lawful or otherwise. Without limiting the generality of the
foregoing, to the best of Transferor's and Guarantor's knowledge:
(i) The
Property is not now and has never been used to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce, process or in any
manner deal with Hazardous Substances;
(ii) No
Hazardous Substances have ever been installed, placed, or in any manner dealt
with on the Property;
(iii) No
owner of the Property nor any tenant, subtenant, occupant, prior tenant, prior
subtenant, prior occupant or person (collectively, “Occupant”)
has received any notice or advice from any governmental agency or any Occupant
with regard to Hazardous Substances on, from or affecting the Property;
and
(iv) No
radon or other radioactive materials are located on the Property.
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5.
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ESCROW
|
To
accomplish the transfer of the Property, Transferee may establish, in its sole
discretion, an escrow (the “Escrow”)
with Title Company. In the event that Transferee shall establish the
Escrow, each of the Transferor and each Guarantor shall execute such
instructions to Title Company as are consistent with this
Agreement.
6.
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INTENTIONALLY
OMITTED
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7.
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FURTHER
ASSURANCES
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Whenever
requested to do so by the other party, each party shall execute, acknowledge,
and deliver any and all such further conveyances, assignments, confirmations,
satisfactions, releases, powers of attorney, instruments of further assurance,
approvals, consents, and any and all such further instruments and documents as
may be necessary, expedient, or proper, in order to complete any and all
conveyances, transfers, sales, and assignments contemplated by this Agreement,
and to do any and all other acts and to execute, acknowledge, and deliver any
and all documents as so requested in order to carry out the intent and purpose
of this Agreement.
8.
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SUCCESSORS
AND ASSIGNS
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This
Agreement shall be binding upon and inure to the benefit of the parties, and
their successors, heirs, and assigns.
9.
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LITIGATION
COSTS
|
If either
party commences an action against the other to enforce any of the terms hereof
or because of the breach by either party of any of the terms hereof, the
prevailing party in such action shall be entitled to recover its attorney fees
and costs and expenses incurred in connection with the prosecution or defense of
such action, including any appeal thereof, in addition to all other
relief.
10.
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INTEGRATION
|
This
Agreement and the other agreements and documents referred to herein set forth
the entire agreement and understanding of the parties. The only
consideration for the execution of this Agreement is the consideration expressly
recited herein. No other promise or agreement of any kind or nature
has been made to or with the parties by any person or entity whatsoever to cause
them to sign this Agreement.
11.
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AMENDMENT
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This
Agreement may not be altered, amended, modified, or otherwise changed in any
respect whatsoever, except by a writing executed by an authorized representative
by each party hereto.
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12.
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COUNTERPARTS
|
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of such counterparts, taken together, shall
constitute one and the same instrument.
13.
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SEVERABILITY
|
If any
term or provision of this Agreement shall be held invalid or unenforceable to
any extent, the remainder of this Agreement shall not be affected
thereby.
14.
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WAIVERS
|
No waiver
or breach of any covenant or provision herein contained shall be deemed a waiver
of any other covenant or provision herein contained, and no waiver shall be
valid unless in writing and executed by the waiving party. No
extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or
act.
15.
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CONSTRUCTION
|
The
section titles in this Agreement are used for convenience of finding the subject
matter and are not to be taken as part of the instrument or used to interpret
this Agreement. The singular form shall include the plural and the
masculine shall include the feminine and vice versa. This Agreement
shall not be construed as if it had been prepared by one of the parties, but
rather as if both parties have prepared the same. Unless otherwise
indicated, all references to sections are to this Agreement. All
exhibits referred to in this Agreement are attached hereto and incorporated
herein by this reference.
16.
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NEUTRAL
INTERPRETATION
|
The
provisions contained herein shall not be construed in favor of or against any
party because that party or its counsel drafted this Agreement, but shall be
construed as if all parties prepared this Agreement, and any rules of
construction to the contrary are hereby specifically waived. The
terms of this Agreement were negotiated at arm’s length by the parties
hereto.
17.
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WAIVER
OF JURY TRIAL
|
Transferor
and each Guarantor waives any right to trial by jury with respect to any action
or proceeding:
(a) brought
by Transferor, Transferee, any Guarantor, or any other person relating to any
understandings or prior or subsequent dealings between the parties, or to this
Agreement or any of the documents entered into in connection herewith,
including, but not limited to, those attached hereto as exhibits;
and/or
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(b) to
which Transferor or any Guarantor is made a party.
Transferor
and each Guarantor agrees that this Agreement constitutes a written consent to
waiver of trial by jury. Transferor and each Guarantor does
constitute and appoint Transferee as its true and lawful attorney-in-fact (the
appointment being coupled with an interest).
18.
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GOVERNING
LAW
|
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Nevada.
19.
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DEFINITIONS
|
“Environmental
Laws” means all
federal, state, local, or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, or requirements of any government authority
regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance, or pertaining to occupational health or
industrial hygiene (and only to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations relate to Hazardous
Substances on, under, or about the Property), occupational or environmental
conditions on, under, or about the Property, as now or may at any later time be
in effect, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (“CERCLA”)
(42 X.X.X.X. §0000 et. seq. and 40 CFR §302.1 et. seq.); the Resource
Conservation and Recovery Act of 1976 (“RCRA”) (42
U.S.C.A. §6901 et. seq.); the Clean Water Act also known as the Federal Water
Pollution Control Act (“FWPCA”)
(33 X.X.X.X. §0000 et. seq. and 40 CFR §116.1 et. seq.); the Toxic Substances
Control Act (“TSCA”) (15
X.X.X.X. §0000 et seq.); the Hazardous Materials Transportation Act (“HMTA”) (49
U.S.C.A. § 1801 et seq.); the Insecticide, Fungicide, Rodenticide Act (7
U.S.C.A. §136 et. seq.); the Clean Air Act 42 U.S.C.A. §7401 et. seq.); the Safe
Drinking Water Act (42 U.S.C.A. §300f et. seq.); the Emergency Planning and
Community Right to Know Act (42 X.X.X.X §00000 et. seq.); the Endangered Species
Act (16 U.S.C. §1531 et. seq.); the Toxic Substances Control Act (15 U.S.C.
§2601 et. seq.); the Occupational Safety and Health Act (29 U.S.C. §651 et.
seq.), those relating to lead based paint, and the Hazardous Materials
Transportation Act (49 U.S.C. §1801 et. seq.); Nev. Rev. Stat. ch. 444; Nev.
Rev. Stat. ch 445; Nev. Rev. Stat. ch 459; Nev. Rev. Stat. § 477.045; Nev. Rev.
Stat. ch. 590; Nev. Rev. Stat. §§ 618.750 to 618.850, inclusive; the Uniform
Fire Code, as adopted by and now or hereafter in effect in the State of Nevada,
and the regulations promulgated pursuant to each and every such law, together
with any amendments of, or regulations promulgated under, the statutes cited
above and any other federal, state, or local law, statute, ordinance, or
regulation now in effect or later enacted which pertains to occupational health
or industrial hygiene (and only to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations relate to Hazardous
Substances on, under, or about the Property), or the regulation or protection of
the environment, including, but not limited to, ambient air, soil,
soil vapor, groundwater, surface water, or land use.
“Hazardous
Substances”
includes, without limitation, the following: (a) those substances included
within the definitions of “hazardous substance,” “hazardous waste,” “hazardous
material,” “toxic substance,” “solid waste,” “pollutant or contaminant,” or any
similar defined term or phrase contained in any of the Environmental Laws; (b)
those substances listed in the United States Department of Transportation
(“DOT”)
Table (49 CFR §172.101) as hazardous substances; (c) those substances listed by
the Environmental Protection Agency (“EPA”), or
any successor agency, as hazardous substances (40 CFR Part 302); (d) other
substances, materials, and wastes that are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations;
and (e) any material, waste, or substance that is: (i) a petroleum or
refined petroleum product; (ii) asbestos; (iii) polychlorinated biphenyl; (iv)
designated as a hazardous substance pursuant to 33 X.X.X.X §0000 or listed
pursuant to 33 X.X.X.X §0000; (v) a flammable explosive; or (vi) a radioactive
material.
[CONTINUED
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
TRANSFERORS: | TRANSFEREE: |
INTEGRITY BORROWER: | ASI CAPITAL CORPORATION, |
a Nevada corporation | |
INTEGRITY PARTNERS, | |
a Nevada limited-liability company | By: /s/ XXXXX XXXXX |
XXXXX XXXXX, President | |
By: /s/ XXXX XXXXXX | |
XXXX XXXXXX, Manager | |
VILLAGE AT LONE MOUNTAIN, LLC, | |
a Nevada limited-liability company | |
By: Integrity Partners, a Nevada limited liability company | |
By: /s/ XXXX XXXXXX | |
XXXX XXXXXX, Manager | |
DESTINED TO INVESTIN, LLC, | |
a Nevada limited-liability company | |
By: /s/ XXXX XXXXXX | |
XXXX XXXXXX, Manager |
[Signatures
Continued on Next Page]
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PARKWILL
BORROWER:
PARKWILL
EAGLE, LLC,
a Nevada
limited liability company
By: /s/ XXXXX
XXXXXXXX
XXXXX XXXXXXXX, Manager
By: /s/ XXXX
XXXXXX
XXXX
XXXXXX, Manager
VEGAS
LAND BORROWER:
VEGAS
LAND & DEVELOPMENT, LLC,
a Nevada
limited-liability company
By: /s/ XXXXX
XXXXXXXX
XXXXX XXXXXXXX, Manager
By: /s/ XXXX
XXXXXX
XXXX
XXXXXX, Manager
GUARANTORS:
/s/ XXXXX
XXXXXXXX
XXXXX
XXXXXXXX, Manager
/s/ XXXX
XXXXXX
XXXX
XXXXXX, Manager
/s/ XXXXX
XXXXXXXX
XXXXX
XXXXXXXX, an individual
/s/
XXXXXXXX
XXXXXX
XXXXXXXX
XXXXXX, an individual
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