Agreement

Amended and Restated Sedona Agreement Dated March 28, 2013

 

 

Exhibit 10.1

 

 

 

 

 

 

 

 

amended and restated sedona agreement

dated march 28, 2013

 

 

 

 

 

 

 

 
 

 

THE FOLLOWING DOCUMENT, UNTIL FULLY EXECUTED BY THE PARTIES IN ITS FINAL FORM IS A SETTLEMENT COMMUNICATION MADE PURSUANT TO RULE 408 OF THE ARIZONA AND FEDERAL RULES OF EVIDENCE.

 

AMENDED AND RESTATED SEDONA AGREEMENT

 

EFFECTIVE DATE: March 28, 2013

 

PARTIES

 

IMH Financial Corporation, a Delaware corporation, f/k/a IMH Secured Loan Fund, LLC;

 

IMH Special Asset NT 233, LLC, an Arizona limited liability company;

 

IMH Special Asset NT 232, LLC, an Arizona limited liability company;

 

L’Auberge Newco, LLC, an Arizona limited liability;

 

Orchards Newco, LLC, an Arizona limited liability company;

 

HL Newco, LLC, an Arizona limited liability company;

 

HL, LLC, an Arizona limited liability company;

 

L’Auberge Orchards, LLC, an Arizona limited liability company;

 

Albert B. Spector, Jr., individually;

 

Orchards Annex, LLC, an Arizona limited liability company;

 

Orchards Inn & Restaurant, LLC, an Arizona limited liability company;

 

L’Auberge de Sedona, LLC, an Arizona limited liability company;

 

Taos Cantina LLC, an Arizona limited liability company;

 

Canyon Portal II, LLC, an Arizona limited liability company;

 

Sedona Culinary Concepts, LLC, an Arizona limited liability company;

 

Spector Offices LLC, an Arizona limited liability company;

 

Barrett Realty, LLC, an Arizona limited liability company;

 

L’Auberge Spa, LLC, an Arizona limited liability company; and

 

Chicago Title Insurance Company

 

 
 

 

Table of Contents

 

    Page
     
1. Information to Lender Parties 8
2. Diligence and Confirmation 9
3. Warranties and Representations of Conveying Parties 14
4. Warranties and Representations of Lender Parties 21
5. Interim Agreements of Parties 22
6. As-Is Transaction 22
7. Closing; Closing Conditions 23
8. Conveyance and Closing Documents 24
9. Employees 27
10. Indemnities 28
11. Release of Released Lender Parties 29
12. Release of Released Borrower Parties 30
13. Remedies 31
14. Attorneys’ Fees 33
15. Jurisdiction and Venue 34
16. Brokerage 34
17. WAIVER OF JURY TRIAL 34
18. Transaction Costs; Operating Accounts; Transition 34
19. Additional Terms 37
20. Confidentiality 38
21. Non-Disparagement 38
22. Entire Agreement 39
23. Governing Law 39
24. Waiver 39
25. Time 39
26. Counterpart 39
27. No Partnership 39
28. Effective Agreement 39

 

i
 

 

29. Joint and Several Liability 39
30. Post-Closing Operation 40
31. Legal Representation 40
32. Cooperation 40
33. Notices 40
34. IRS Real Estate Reporting 42
35. Construction 42
36. Incorporation of Recitals 43
37. No Recordation 43
38. Entire Transaction 43
39. Additional Consideration 43

 

LIST OF SCHEDULES AND EXHIBITS
 
Schedule A-i HL Loan Documents
Schedule A-ii LA Loan Documents
Schedule 3(d) Pending or Threatened Litigation
Schedule 3(e) Bankruptcy Proceedings
   
Exhibit B LaMerra Land Legal Description
Exhibit F-i L’Auberge Land Legal Description
Exhibit F-ii Orchards Inn Land Legal Description
Exhibit F-iii Description of Delivery and Installation of Pre-Fabricated Cottage
Exhibit G-i Affordable Housing Lease
Exhibit G-ii Temporary Housing Lease
Exhibit G-iii Sinagua Storage Lease
Exhibit G-iv Sinagua Parking Lease
Exhibit H Orchards Annex Lease
Exhibit I-i Orchards Inn Parking Lease
Exhibit I-ii Orchards Inn Laundry Lease
Exhibit J Schnebly Hill Land Legal Description
Exhibit K-i Orchards Inn & Restaurant, LLC Assets and Liabilities
Exhibit K-ii L’Auberge de Sedona, LLC Assets and Liabilities
Exhibit R Canyon Breeze Service Agreement
Exhibit 1(a)-i List of Contracts, Accounts Payable, Accounts Receivable and Deposits (LaMerra Property)
Exhibit 1(a)-ii List of Contracts, Accounts Payable, Accounts Receivable and Deposits (L’Auberge Property)
Exhibit 1(a)-iii List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Orchards Inn Property)

 

ii
 

  

LIST OF SCHEDULES AND EXHIBITS
 
Exhibit 1(a)-iv List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Schnebly Hill Property)
Exhibit 1(a)-v List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Orchards Annex Property Lease)
Exhibit 1(a)-vi List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Orchards Inn Parking Lease)
Exhibit 1(a)-vii List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Sinagua Storage Lease)
Exhibit 1(a)-viii List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Sinagua Parking Lease)
Exhibit 1(a)-ix List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Affordable Housing Lease Interest)
Exhibit 1(a)-x List of Contracts, Accounts Payable, Accounts Receivable and Deposits (Temporary Housing Lease Interest)
Exhibit 1(f)-i Licenses and Permits (LaMerra Property)
Exhibit 1(f)-ii Licenses and Permits (L’Auberge Property)
Exhibit 1(f)-iii Licenses and Permits (Orchards Inn Property)
Exhibit 1(f)-iv Licenses and Permits (Schnebly Hill Property)
Exhibit 1(f)-v Licenses and Permits (Orchards Annex Property Lease)
Exhibit 1(f)-vi Licenses and Permits (Orchards Inn Parking Lease)
Exhibit 1(f)-vii Licenses and Permits (Sinagua Plaza Storage Lease)
Exhibit 1(f)-viii Licenses and Permits (Sinagua Plaza Parking Lease)
Exhibit 1(f)-ix Licenses and Permits (Affordable Housing Lease)
Exhibit 1(f)-x Licenses and Permits (Temporary Housing Lease)
Exhibit 1(h) List of All Leases including LaMerra Property, L’Auberge Property, Orchards Inn Property, Schnebly Hill Property, Orchards Annex Property, Orchards Inn Parking, Sinagua Plaza Storage, Sinagua Plaza Parking, Affordable Housing, Temporary Housing
Exhibit 1(m) Personal Property Inventory Form
Exhibit 1(m)-i Personal Property Inventory (LaMerra Property)
Exhibit 1(m)-ii Personal Property Inventory (L’Auberge Property)
Exhibit 1(m)-iii Personal Property Inventory (Orchards Inn Property)
Exhibit 1(m)-iv Personal Property Inventory (Schnebly Hill Property)
Exhibit 1(m)-v Personal Property Inventory (Orchards Annex Property Lease)
Exhibit 1(m)-vi Personal Property Inventory (Orchards Inn Parking Lease)
Exhibit 1(m)-vii Personal Property Inventory (Sinagua Plaza Storage Lease)
Exhibit 1(m)-vii Personal Property Inventory (Sinagua Plaza Parking Lease)
Exhibit 1(m)-ix Personal Property Inventory (Affordable Housing Lease)
Exhibit 1(m)-x Personal Property Inventory (Temporary Housing Lease)
Exhibit 2(c) Permitted Encumbrances for All Properties
Exhibit 2(d)(ii) Orchards Annex Property Lease Legal Description
Exhibit 2(d)(iii)-A Assignment and Assumption of  Lease and Consent to Assignment of Lease (Orchards Annex Property)
Exhibit 2(d)(iii)-B Assignment and Assumption of  Lease and Consent to Assignment of Lease (Orchards Inn Parking Lease)

 

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LIST OF SCHEDULES AND EXHIBITS
 
Exhibit 2(d)(iii)-C Assignment and Assumption of  Lease and Consent to Assignment of Lease (Sinagua Plaza Storage Lease)
Exhibit 2(d)(iii)-D Assignment and Assumption of  Lease and Consent to Assignment of Lease (Sinagua Plaza Parking Lease)
Exhibit 2(d)(iii)-E Assignment and Assumption of  Lease and Consent to Assignment of Lease (Affordable Housing Lease)
Exhibit 2(d)(iii)-F Assignment and Assumption of  Lease and Consent to Assignment of Lease (Temporary Housing Lease)
Exhibit 2(d)(iii)-G Assignment and Assumption of  Lease and Consent to Assignment (Orchards Inn Laundry Lease Interest)
Exhibit 2(f) FCB Payments
Exhibit 3(c)-i Tenants (LaMerra Property)
Exhibit 3(c)-ii Tenants (L’Auberge Property)
Exhibit 3(c)-iii Tenants (Orchards Inn Property)
Exhibit 3(c)-iv Tenants (Schnebly Hill Property)
Exhibit 3(c)-v Tenants (Orchards Annex Property)
Exhibit 3(c)-vi Tenants (Orchards Inn Parking Lease)
Exhibit 3(c)-vii Tenants (Sinagua Plaza Storage Lease)
Exhibit 3(c)-viii Tenants (Sinagua Plaza Parking Lease)
Exhibit 3(c)-ix Tenants (Affordable Housing Lease)
Exhibit 3(c)-x Tenants (Temporary Housing Lease)
Exhibit 3(h) Assignment and Assumption of Declarant’s Rights and Appointment of Design Review Committee (LaMerra Property)
Exhibit 3(m) Title Disputes

Exhibit 3(n)

 

Tax Liabilities
Exhibit 3(p) Actual or Threatened Claims with Respect to All Properties
Exhibit 3(q) Transactions with Related Parties

Exhibit 3(u)

 

Non-Transferring Assets
Exhibit 3(x)(i) List of Employees
Exhibit 3(x)(ii) Labor Unions
Exhibit 3(x)(iii) Collective Bargaining Agreements
Exhibit 3(x)(iv) Employee Agreements Involving Property
Exhibit 3(x)(v) Strikes and Labor Actions
Exhibit 3(x)(vi) Pending or Threatened Investigations or Claims
Exhibit 3(x)(ix) Compensation and Termination Agreements
Exhibit 4(d) Third-Party Authorizations of Transaction
Exhibit 4(e) Consents to Transaction
Exhibit 5(a) Permitted Modifications of Agreement, Properties, and Business Practices
Exhibit 8(a)-i Special Warranty Deed Conveying LaMerra Property to HL Newco, LLC
Exhibit 8(a)-ii Special Warranty Deed Conveying L’Auberge Property to L’Auberge Newco, LLC
Exhibit 8(a)-iii Special Warranty Deed Conveying Orchards Inn Property to Orchards Newco, LLC

 

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LIST OF SCHEDULES AND EXHIBITS
 
Exhibit 8(b)-i Bill of Sale and Assignment and Assumption (LaMerra Property)
Exhibit 8(b)-ii Bill of Sale and Assignment and Assumption (L’Auberge Property)
Exhibit 8(b)-iii Bill of Sale and Assignment and Assumption (Orchards Inn Property)
   
Exhibit 8(c)-i Estoppel Certificate in Support of Deed in Lieu of Foreclosure HL LLC, an Arizona limited liability company (LaMerra Property)
Exhibit 8(c)-ii Estoppel Certificate in Support of Deed in Lieu of Foreclosure L’Auberge Orchards, LLC (L’Auberge Property)
Exhibit 8(c)-iii Estoppel Certificate in Support of Deed in Lieu of Foreclosure L’Auberge Orchards, LLC (Orchards Inn Property)
Exhibit 8(g) Assignment and Assumption of L’Auberge de Sedona, LLC Assets and Liabilities
Exhibit 8(h) Assignment and Assumption of Orchards Inn & Restaurant, LLC Assets and Liabilities
Exhibit 8(o)-i HL Loan Satisfaction and Release
Exhibit 8(o)-ii LA Loan Satisfaction and Release
Exhibit 8(p) Assignment and Assumption of Noble House Letter
Exhibit 8(q)-i Request for Assignment of Surface Water Application and Claim and Assignment and Reissuance of Permits (LaMerra)
Exhibit 8(q)-ii Request for Assignment of Surface Water Application and Claim and Assignment and Reissuance of Permits (L’Auberge)
Exhibit 8(q)-iii Request for Assignment of Surface Water Application and Claim and Assignment and Reissuance of Permits (Orchards Inn)
Exhibit 8(q)-iv Assignment of Gila River Adjudication Claim (LaMerra)
Exibit 8(q)-v ADWR Request to Change Well Information (LaMerra)
Exhibit 8(t) Assignment of Spector Canyon Portal II, L.L.C. Membership Interest
Exhibit 8(u) Day of Closing Protocol
Exhibit 9(a) List of L’Auberge and Orchards Inn Employees
Exhibit 18(a) Approved Budget
Exhibit 18(c) Scheduled Assumed Liabilities
Exhibit 18(o) Voting Trust Agreement
Exhibit 19(g) Avion Noble House Payment Terms
Exhibit 39 Avion Nobel House Letter
   

 

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INDEX OF DEFINED TERMS

 

(to be updated)

 

  Page
   
Adjusted Settlement Protocol 31
Affordable Housing Lease Interest 4
Amara 3
Assignment of Declarant’s Rights 15
Assignment of Spector 28.175% Canyon Portal II Membership Interest 26
Assignments of Leases 24
Avion Noble House Letter 43
Avion Noble House Payment 42
Avion Noble House Payment 38
Avion Payment 35
Bills of Sale 24
Borrower Parties 2
Borrower Releasing Parties 29
Borrower-related Parties’ Conditions to Closing 23
Borrowers 2
Canyon Breeze Service Agreement 7
Canyon Portal II 1
Claims 28
Closing 22
Closing Accounts Payable 34
Closing Date 22
Closing Documents 24
Code 47
Code 19
Consent to Assignment of Lease 12
Contracts 9
Conveying Parties 2

 

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Conveying Party 2
Deeds 24
Defaulting Party 30
Embargoed Person 16, 21
Employee Benefit Plans 19
ERISA 18
ERISA Affiliate 19
Escrow Agent 2
Estoppel Certificates 24
Excluded Items 31
First Credit Bank Loan 6
HIDC 3
HL Borrower 1
HL Loan 3
HL Newco 1
HL Noteholder 1
IMHFC 1
Indemnified Liabilities 28
Indemnified Person 28
Intentionally Omitted 7
Key Contacts 10
L’Auberge de Sedona, LLC 2
L’Auberge de Sedona, LLC Assets and Liabilities 5
L’Auberge Land 4
L’Auberge Newco 1
L’Auberge Property 4
LA Borrower 2
LA Loan 3
LA Noteholder 1
LaMerra Property 3
Lease Interest 4

 

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Lease Interests 4
Leases 9
Lender Parties 1
Lender Parties’ Conditions to Closing 23
Lender Parties’ Notice 12
Lenders 1
Licensees 39
Licenses 39
List 21
List 16
Loans 6
Management Transition Date 26
Multiemployer Plan 19
Noble House Letter 42
Non-defaulting Party 31
Noteholders 1
OFAC 16, 20
Operating Reports 8
Orchards Annex 2, 4
Orchards Annex Payment 25
Orchards Annex Property Lease Interest 4
Orchards Inn 2, 4
Orchards Inn Assets and Liabilities 5
Orchards Inn Land 4
Orchards Inn Laundry Lease Interest 5
Orchards Inn Parking Lease Interest 4
Orchards Inn Property 4
Orchards Newco 1
Original Lender 1
Owner’s Policies 11
Owner’s Policy 11

 

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Post-Closing Deductible Threshold 32
Pre-Agreement Rights and Remedies 13
Pre-Closing Deductible Threshold 32
Property 6
Property Information 8
Property Verification Condition 10
Property Verification Deadline 10
Property Verification Documents 11
Property Verification Period 10
Released Borrower Liabilities 30
Released Borrower Parties 30
Released Lender Liabilities 29
Released Lender Parties 29
Reports 47
Reservations 9
Resolution Period 12
Retained Employees 27
Scheduled Assumed Liabilities 35
Schnebly Hill Land 5
Schnebly Hill Lender 5
Schnebly Hill Loan 5
Schnebly Hill Property 5
Sinagua Parking Lease Interest 4
Sinagua Plaza II 4
Sinagua Storage Lease Interest 4
Spector 2
Spector 28.175% Canyon Portal II Membership Interest 13
Spector Canyon Portal II Membership Interest 3
Spector Noble House Letter 43
Spector Noble House Payment 38, 43
Spector Payment 25

 

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Spector Trust 2
Subordination Agreements 5
Taos Cantina 2
Taos Cantina Management Agreement 7
Temporary Housing Lease Interest 4
Tenants 14
Third Party Consents 12
Title Assurance 11
Title Company 2, 11
Title IV Plan 19
Title Policy Condition 22
Transferee Entities 1
Transferees 39
Trustee 2
Voting Trust Agreement 36
WARN Act 18

 

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AMENDED AND RESTATED SEDONA AGREEMENT

 

EFFECTIVE DATE:          May ___, 2013

 

PARTIES:

 

IMH Financial Corporation, a Delaware corporation ("IMHFC"), f/k/a IMH Secured Loan Fund, LLC (IMH Secured Loan Fund, LLC is sometimes referred to herein as "Original Lender"), whose address is 7001 N. Scottsdale Road, Suite 2050, Scottsdale Arizona 85253;

 

IMH Special Asset NT 233, LLC, an Arizona limited liability company ("HL Noteholder"), whose address is 7001 N. Scottsdale Road, Suite 2050, Scottsdale Arizona 85253;

 

IMH Special Asset NT 232, LLC, an Arizona limited liability company ("LA Noteholder"), whose address is 7001 N. Scottsdale Road, Suite 2050, Scottsdale Arizona 85253;

 

HL Noteholder and LA Noteholder are collectively referred to herein as "Noteholders";

 

Original Lender, HL Noteholder and LA Noteholder are collectively referred to herein as "Lenders";

 

L’Auberge Newco, LLC, an Arizona limited liability company ("L’Auberge Newco") whose address is 7001 North Scottsdale Road, Suite 2050, Scottsdale, Arizona 85253;

 

Orchards Newco, LLC, an Arizona limited liability company ("Orchards Newco"), whose address is 7001 North Scottsdale Road, Suite 2050, Scottsdale, Arizona 85253;

 

HL Newco, LLC, an Arizona limited liability company ("HL Newco"), whose address is 7001 North Scottsdale Road, Suite 2050, Scottsdale, Arizona 85253;

 

L’Auberge Newco, Orchards Newco, and HL Newco are collectively referred to herein as the "Transferee Entities";

 

Lenders and Transferee Entities are sometimes referred to collectively herein as the "Lender Parties";

 

Canyon Portal II, L.L.C., an Arizona limited liability company ("Canyon Portal II"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

HL, LLC, an Arizona limited liability company ("HL Borrower"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

L’Auberge Orchards, LLC, an Arizona limited liability company ("LA Borrower"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

HL Borrower and LA Borrower are collectively referred to herein as the "Borrowers";

 

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Albert B. Spector, Jr., ("Spector") whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251; [Note: The Spector Family Trust, wherein Albert J. Spector, Jr. was Trustee (the "Trustee") created under Second Amendment and Complete Restatement to Trust Agreement dated May 10, 2004, and Third Amendment to Trust Agreement dated June 20, 2006 sometimes referred to as (the "Spector Trust"), has expired by its terms];

 

The Borrowers, Spector and Jacob Gechman, are collectively referred to herein as the "Borrower Parties";

 

Orchard Annex, LLC, an Arizona limited liability company ("Orchards Annex"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

Orchards Inn & Restaurant, LLC, an Arizona limited liability company ("Orchards Inn"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

L’Auberge de Sedona, LLC, an Arizona limited liability company ("L’Auberge de Sedona, LLC"), whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251;

 

The Borrower Parties, Orchards Annex, Orchards Inn, L’Auberge de Sedona, LLC and Taos Cantina, each in its capacity as a conveying party of an interest hereunder is referred to individually as a "Conveying Party" and collectively are referred to as the "Conveying Parties";

 

Taos Cantina LLC, an Arizona limited liability company, whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251 (the "Taos Cantina"),

 

Sedona Culinary Concepts, LLC, an Arizona limited liability company, whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251 (“Culinary Concepts”),

 

Spector Offices LLC, an Arizona limited liability company, whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251 (“Spector Offices”),

 

Barrett Realty, LLC, an Arizona limited liability company, whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251 (“Barrett”),

 

L’Auberge Spa, LLC, an Arizona limited liability company, whose address is 6900 E. Camelback Road, Suite 915, Scottsdale, Arizona 85251 (“LA Spa”); and

 

Chicago Title Insurance Company (“Escrow Agent” and “Title Company”), whose address is 2425 E. Camelback Road, Suite 200, Phoenix, AZ 85016, attn: DeWayne C. Huffman.

 

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RECITALS

 

A.           On or about June 11, 2007, Original Lender made a loan to HL Borrower in the amount of not to exceed THIRTY-TWO MILLION AND NO/100 DOLLARS ($32,000,000.00), which was later increased to FORTY-THREE MILLION FOUR HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($43,435,000.00) (the "HL Loan"). The HL Loan is evidenced and secured by the HL Loan Documents, as described in Schedule A-i attached hereto and incorporated herein. Capitalized terms used but not otherwise defined in the body of this Agreement are defined in such Schedule A-i as well as in Schedule A-ii attached hereto and incorporated herein.

 

B.           The HL Deed of Trust is a lien on the real property, including all improvements thereon, located on the land described in Exhibit B attached hereto and incorporated herein, which legal description reflects the original legal description, as well as the revised legal description showing the Lots in the plat of the subdivision, now known as "LaMerra," after release of several of such Lots from the lien of the HL Deed of Trust, and also created a security interest in Original Lender’s favor in the personal property as described therein and all water rights and claims to water rights appurtenant and related thereto and wells thereon, including but not limited to those identified by the Arizona Department of Water Resources as Nos. 36-18397.0002, 36-18398.0003, 36-18399.0002, 55-609716, 39-48282, 39-48283, 39-48284 and 39-48285 (collectively, the “LaMerra Water Rights”), which real and personal property and LaMerra Water Rights (collectively, the "LaMerra Property") is commonly known as "LaMerra," a residential subdivision along Oak Creek, Yavapai County, Arizona, in which 233 Oak Creek Lots, LLC (an entity not affiliated with or under the control of any of the Conveying Parties) owns one (1) lot, HL Borrower owns twenty-eight (28) lots and an affiliate of Lenders owns nine (9) lots. A lease of a parcel of land in the vicinity of SR 89A and Upper Red Rock Loop Road for use as a potential information center for the LaMerra Property has terminated as of December 31, 2012, and the security deposit in the amount of $6,000 thereunder is to be refunded by the landlord to HL Noteholder.

 

C.           Spector continues to own a 66.925% membership interest in Canyon Portal II (the "Spector Canyon Portal II Membership Interest"). Pursuant to the Spector Trust and HIDC HL Security Agreement, the Second Spector Trust HL Security Agreement, and the Restated Spector Trust/Individual and HIDC HL Security Agreement, Spector and HIDC Investments, LLC ("HIDC") granted a security interest in twenty eight and one hundred seventy five 1000ths percent (28.175%) of the membership interest in Canyon Portal II, which security interest is held by HL Noteholder. By the foregoing security agreements, Spector and HIDC also granted a security interest in membership interests in Amara, LLC, an Arizona limited liability company ("Amara"). Canyon Portal II is the owner of the Canyon Portal Shopping Center in Sedona, Arizona. Amara no longer owns any property.

 

D.           The HL Loan and the HL Loan Documents were assigned to HL Noteholder pursuant to the HL Note Allonge, the HL Loan Documents Assignment, and other assignment documents described in Schedule A-i.

 

E.           On or about May 7, 2008, Original Lender made a loan to LA Borrower in the amount of not to exceed SEVENTY-TWO MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($72,250,000.00) (the "LA Loan"). The LA Loan is evidenced and secured by the LA Loan Documents, as described in Schedule A-ii.

 

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F.           The First LA Deed of Trust is a lien on (i) the real property, including all improvements thereon, located on the land (the "L’Auberge Land"), as described in Exhibit F-i attached hereto and incorporated herein, and also created a security interest in Original Lender’s favor in the personal property as described therein and all water rights and claims to water rights appurtenant and related thereto and wells thereon, including but not limited to those identified by the Arizona Department of Water Resources as Nos. 36-60294.0001 and 36-69321.0001 (collectively, the “L’Auberge Water Rights”), which real and personal property includes what is commonly known as the L’Auberge de Sedona Hotel & Resort, including a hotel and a restaurant and bar in Sedona, Coconino County, Arizona (together with the L’Auberge Water Rights, the "L’Auberge Property"), and (ii) the real property, including all improvements therein, located on the land (the "Orchards Inn Land"), as described in Exhibit F-ii attached hereto and incorporated herein, and also created a security interest in Original Lender’s favor in the personal property described therein and also created a security interest in Original Lender’s favor in the personal property as described therein and all water rights and claims to water rights appurtenant and related thereto and wells thereon, including but not limited to that identified by the Arizona Department of Water Resources as No. 36-42343.0001 (the “Orchards Inn Water Rights”), which real and personal property include what is commonly known as the “Orchards Inn”, including a hotel and a restaurant in Sedona, Coconino County, Arizona (together with the Orchards Inn Water Rights, the "Orchards Inn Property"). For purposes of this Agreement, the Orchards Inn Property shall include LA Borrower’s interest in the one (1) pre-fabricated cottage consisting of approximately 600 square feet currently in storage in the Schulte manufacturing facility in Avondale, Arizona. The delivery and installation with respect to this cottage are as described in Exhibit F-iii hereto (which sets forth a copy of all documents executed by or on behalf of LA Borrower with Schulte in connection with such cottage and all material notices delivered in connection therewith) and remain enforceable by LA Borrower.

 

G.           LA Borrower holds the following interests: (i) lessee’s interest under a lease (the "Affordable Housing Lease Interest") with Canyon Portal II for units used for affordable housing, (ii) lessee’s interest under a lease with Canyon Portal II for five (5) units used as temporary employee housing and a sublandlord’s interest in various subleases related to such units (together, the "Temporary Housing Lease Interest"); (iii) lessee’s interest under a lease (the "Sinagua Storage Lease Interest") with Sinagua Plaza II, LLC ("Sinagua Plaza II"), the owner of the Sinagua Shopping Center, for storage located at the Sinagua Shopping Center, and (iv) lessee’s interest under a lease (the "Sinagua Parking Lease Interest") with Sinagua Plaza II for parking spaces located at the Sinagua Shopping Center, a complete copy of each of which, including any amendments, supplements and modifications thereto, is included as Exhibit G-i through G-iv attached hereto. The leasehold interests referred to in this paragraph are used by LA Borrower in connection with the operation of L’Auberge Property, although they are not subject to the First LA Deed of Trust.

 

H.           Orchards Annex holds the lessee’s interest under a lease, a complete copy of which, including any amendments, supplements and modifications thereto, is included as Exhibit H attached hereto (collectively, the "Orchards Annex Property Lease Interest") with Canyon Portal II, the owner of the Canyon Portal Shopping Center in Sedona, Coconino County, Arizona, for 28 rooms commonly referred to as the "Orchards Annex" located at the Canyon Portal Shopping Center. The Orchards Annex is operated as part of the Orchards Inn but is not subject to the First LA Deed of Trust.

 

4
 

 

I.           Orchards Inn holds the following interests: lessee’s interest under a lease (the "Orchards Inn Parking Lease Interest") with Canyon Portal II for parking at the Canyon Portals Shopping Center, and (ii) lessee’s interest under a lease (the "Orchards Inn Laundry Lease Interest") with Canyon Portal II for the Orchards laundry facility at the Canyon Portal Shopping Center, a complete copy of each of which, including any amendments, supplements and modifications thereto, is included as Exhibit I-i through I-ii attached hereto. The leasehold interests referred to in this paragraph are used by Orchards Inn in connection with the operation of the Orchards Inn Property, but are not subject to the First LA Deed of Trust. Each of the Affordable Housing Lease Interest, the Temporary Housing Lease Interest, the Sinagua Storage Lease Interest, the Sinagua Parking Lease Interest, the Orchards Annex Property Lease Interest, the Orchards Inn Parking Lease Interest, the Orchards Inn Laundry Lease Interest and each other lease interest between a Conveying Party and an affiliate thereof relating to or affecting any or all of the Property are referred to herein individually as a “Lease Interest” and collectively as the “Lease Interests.”

 

J.           The Second LA Deed of Trust is a lien granted by the LA Borrower on property in Sedona, Coconino County, Arizona (the "Schnebly Hill Land") as described in Exhibit J attached hereto and incorporated herein, and also created a security interest in favor of Original Lender in personal property, as described therein, which real and personal property is collectively referred to herein as the "Schnebly Hill Property". The Schnebly Hill Property is used as affordable housing by LA Borrower, and affordable housing is a condition of the zoning. The Schnebly Hill Property is encumbered by a deed of trust that secures a loan in favor of Bank 1440 (the "Schnebly Hill Lender") with an approximate unpaid principal balance of $245,180.13 (the "Schnebly Hill Loan").

 

K.          Orchards Inn is wholly owned by LA Borrower and all of the assets owned or controlled by a Conveying Party, and, subject to the terms and conditions of this Agreement, liabilities owing by LA Borrower related to the ownership and operation of the Orchards Inn and the associated restaurant and other facilities are specified in detail on Exhibit K-i hereto with respect to the operation of the Orchards Inn (collectively, the "Orchards Inn Assets and Liabilities"). L’Auberge de Sedona, LLC is wholly owned by LA Borrower and all of the assets owned or controlled by a Conveying Party and, subject to the terms and conditions of this Agreement, liabilities owing by LA Borrower related to the ownership and operation of the L’Auberge Property, and the associated spa, restaurant and other facilities are specified in detail on Exhibit K-ii hereto (collectively, the "L’Auberge de Sedona, LLC Assets and Liabilities").

 

L.           The LA Loan and the LA Loan Documents were assigned to LA Noteholder pursuant to the LA Note Allonge, the First LA Deed of Trust Assignment, the Second LA Deed of Trust Assignment and the other assignment documents described in Schedule A-ii.

 

M.          Pursuant to (i) Subordination Agreement between LA Borrower, Original Lender, as Subordinate Lender, and First Credit Bank, as Senior Lender, dated September 18, 2009, and recorded on September 25, 2009 in the Coconino Records as Instrument No. 3539611, (ii) Subordination Agreement between LA Borrower, Original Lender, as Subordinate Lender, and First Credit Bank, as Senior Lender, dated September 28, 2010, and recorded on September 30, 2010 in the Coconino Records as Instrument No. 3575445, and (iii) Subordination Agreement between LA Borrower, LA Noteholder, as Subordinate Lender, and First Credit Bank, as Senior Lender, dated February 23, 2011, and recorded on March 9, 2011 in the Coconino Records as Instrument No. 3589822 (collectively, the "Subordination Agreements"), Original Lender and LA Noteholder have subordinated the specified LA Loan Documents, the LA Loan, and its lien on and security interest in the "Collateral" defined therein, to the lien of the Senior Deed of Trust, as defined in the Subordination Agreements, under which First Credit Bank is beneficiary, securing a loan made by First Credit Bank (the "First Credit Bank Loan") to LA Borrower.

 

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N.           The HL Loan and the LA Loan (collectively, the "Loans") are now due and payable.

 

O.           To avoid the need for Noteholders and the Borrowers to attempt to exercise their rights and remedies pursuant to the Loans, the Conveying Parties desire to convey to the Transferee Entities (as designees of Noteholders) as follows: (i) the LaMerra Property to HL Newco; (ii) the L’Auberge Property; the Temporary Housing Lease Interest, the Sinagua Storage Lease Interest, the Sinagua Parking Lease Interest, the L’Auberge de Sedona, LLC Assets and Liabilities and the Orchards Inn Assets and Liabilities to L’Auberge Newco, (iii) the Orchards Inn Property, the Orchards Annex Property Lease Interest, the Orchards Inn Parking Lease Interest and the Orchards Inn Laundry Lease Interest to Orchards Newco (iv) provide for the right of a designee of a Transferee Party to exercise the option for the purchase of the Spector 28.175% Canyon Portal II Membership Interest (defined below); and (v) grant the Option (as defined below) and to provide for the designee of a Transferee Party have the right to exercise the Option for the purchase of the Schnebly Hill Property and the Affordable Housing Lease Interest, in full and complete satisfaction of all amounts and all other liabilities and obligations owing under, arising out of or relating to the Loans and the Loan Documents (in addition to the other consideration set forth in this Agreement), and each party hereto desires to mutually and fully release (except to the extent set forth herein) each other party hereto, from any and all liabilities and obligations arising out of or relating to the Loan Documents, and Noteholders agree to cause the Transferee Entities to accept the conveyances, all on the terms and conditions set forth herein, and each party hereto (as applicable) agrees to pay and perform each of the other of its obligations contemplated hereby, as consideration for the full and complete satisfaction of all amounts owing and all other liabilities and obligations under, arising out of or relating to the Loans and the Loan Documents, all on the terms and conditions set forth herein. The LaMerra Property, the L’Auberge Property, the Option, the Orchards Inn Property, Temporary Housing Lease Interest, the Sinagua Storage Lease Interest, the Sinagua Parking Lease Interest, the Orchards Annex Property Lease Interest, the Orchards Inn Parking Lease Interest, and the Orchards Inn Laundry Lease Interest are collectively referred to herein as the "Property". The Parties have each independently considered the tax implications of the transactions contemplated hereby, including, by consulting with their respective tax consultants and advisors. The Parties shall each be responsible for any and all respective tax and related consequences of entering into this Agreement and all agreements related thereto.

 

P.           Intentionally Omitted.

 

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Q.           As additional consideration for the transactions set forth in this Agreement, concurrent with and as part of the Closing, the Taos Restaurant shall be managed by Taos Cantina, and Taos Cantina, as manager, and Orchards Newco or its designee, as owner, shall enter into a management agreement for the Taos Restaurant located on the Orchards Inn Property for the consideration and upon the terms set forth in a management agreement in a commercially reasonable form and substance for a similar property, to be agreed upon by the parties thereto acting in good faith prior to the Property Verification Deadline (the "Taos Cantina Management Agreement"). The Taos Cantina Management Agreement shall provide for: (i) a one (1) year term, commencing on the Closing Date, which may be renewed by Orchards Newco (in its sole discretion) upon the expiration of the initial term or any applicable extended term, (ii) a base monthly management fee equal to Ten Thousand Dollars ($10,000), and (iii) an annual incentive management fee equal to ten percent (10%) of the increase in annual Net Cash Flow of the Taos Restaurant. The Taos Cantina Management Agreement may be terminated by Orchards NewCo at any time prior to the scheduled expiration thereof: (a) upon payment of a termination fee to Spector equal to the balance of the base monthly management fee payments that would have been due through the remainder of the current term, (b) if Spector breaches his obligations hereunder or under any other document or instrument executed in connection herewith, or (c) upon a sale of disposition of the Property, upon payment of a termination fee to Spector equal to the balance of the base monthly management fee payments that would have been due through the remainder of the current term. For purposes hereof “Net Cash Flow” means, with respect to the Taos Restaurant, the recurring cash operating income of the Taos Restaurant after deducting all cash fees, costs and expenses reasonably related to the operations of the Taos Restaurant, including, without limitation, property taxes, pass-through expenses, management fees and insurance.

 

R.           As additional consideration for the transactions set forth in this Agreement, the Sedona Culinary Concepts, LLC, an Arizona limited liability company, shall provide to Orchards Newco and Orchards Annex, LLC complimentary breakfasts for each guest of the Orchards Inn and the Orchards Annex in the same manner and on the same terms and conditions as provided prior to November 1, 2012 set forth in the Canyon Breeze Services Agreement attached hereto as Exhibit R (the "Canyon Breeze Service Agreement") provided, however, that the Canyon Breeze Service Agreement shall be modified to provide for: (i) a one (1) year term, commencing upon the Closing Date which may be renewed by Orchards NewCo and/or Orchards Annex, LLC (in their respective sole discretion) upon the expiration of the initial term or any applicable extended term and (ii) termination by Orchards NewCo and/or Orchards Annex, LLC upon thirty (30) days notice to Canyon Breeze Restaurant, without penalty or cost.

 

S.           Intentionally Omitted.

 

T.           LA Borrower and LA Noteholder have, prior to the date of this Agreement, obtained an increase in the available loan proceeds from the First Credit Bank Loan in the amount of $7,106,600 and an extension of the maturity date thereunder to March 28, 2014 (the “FCB Modification”).

 

U.           Intentionally Omitted.

 

AGREEMENT

 

Now, therefore, in consideration of the premises and the representations, warranties and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

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1.          Information to Lender Parties. Throughout the terms of the Loans, Borrowers have provided to Lenders certain monthly operating statements, construction draw reports and financial information relating to the ownership, operation, construction, maintenance, repair and replacement of the property that is the subject of the Loans (collectively, the "Operating Reports"). Notwithstanding the foregoing, the Conveying Parties will make available to Noteholders and/or Transferee Entities at the Conveying Parties’ offices or other reasonable facilities located near such offices located in Sedona, Arizona or such other location as the Parties may mutually determine for review during the entire term of the Property Verification Period (defined below), the following information (collectively, the "Property Information"):

 

(a)          A full and complete accounting of all paid (since January 1, 2008) and unpaid bills, invoices, expenses and costs relating to the ownership, management, development, maintenance, construction, refurbishing or repair, operation and leasing of each Property (including for the Property leasehold interests), including those accounts payable listed on Exhibits 1(a)-i through 1(a)-x attached hereto and incorporated herein by reference;

 

(b)          Copies of all bills and invoices for the paid (since January 1, 2008) and unpaid items identified in Section 2(a) above;

 

(c)          Copies of any past (since January 1, 2008) and current contracts, leases and agreements relating to the current, ongoing management, maintenance, construction/refurbishing or repair, operation and leasing of the Property (the "Contracts"), including those contracts as listed on Exhibits 1(a)-i through 1(a)-x attached hereto and incorporated herein;

 

(d)          A full and complete accounting of all past (since January 1, 2008), including those previously paid) and current accounts receivable relating to the ownership, operation and leasing of the Property and of all deposits made with or by third parties, including those listed on Exhibits 1(a)-i through 1(a)-x attached hereto and incorporated herein by reference;

 

(e)          Copies of all bills, invoices or other evidence of the items identified in or related to Section 2(d) above;

 

(f)          Copies of all current material licenses and permits, including liquor licenses, relating to the ownership, management, development, construction, operation and leasing of the Property, including those listed on Exhibits 1(f)-i through 1(f)-x attached hereto and incorporated herein;

 

(g)          Copies of any site plans, plat maps, subdivision reports, surveys, plans and specifications, environmental reports, zoning materials, soil reports, or material correspondence (including from third parties) affecting the applicable Property;

 

(h)          Copies of all written lease agreements (the "Leases") currently in effect made by the Conveying Parties to tenants of any Property, along with a full accounting of rent collected from January 1, 2008, to the date that is not more than thirty (30) days prior to the date that the information has been supplied, and a listing of all security deposits with respect to the Leases, including, those listed on Exhibit 1(h) attached hereto and incorporated herein;

 

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(i)          Records of all previous (since January 1, 2008) and currently existing room, cabin, restaurant, ballroom, lawn or other reservations (collectively, the "Reservations") including records of deposits for any of the rooms, cabins, restaurants, ballrooms, lawns or other areas, or otherwise at the Property;

 

(j)          Copies of all books, records, and correspondence relating to the ownership, management and operation of the Property and the leasing thereof since January 1, 2008;

 

(k)         Copies of all currently in effect documents evidencing or relating to intellectual property, including, trade names, trademarks, or copyrights;

 

(l)          Copies of such other documents, records and information related to the Property as Noteholders may reasonably request, including with respect to the Operating Reports previously delivered; and

 

(m)        Upon commencement of the Property Verification Period, a reasonably detailed preliminary inventory of the personal property currently or customarily located at the Property as described on Exhibit 1(m) attached hereto and incorporated herein. The Lender Parties may request for such inventory to be updated and agreed upon in writing at least seven (7) business days before the Closing Date.

 

2.           Diligence and Confirmation.

 

(a)          Subject to subsection (b) below and the other applicable terms hereof, each of the Noteholders and Transferee Entities (including their respective consultants, agents and designees) shall have the right to conduct full and unrestricted due diligence, investigation and analysis of the Property and the Conveying Parties and the Spector Trust (including each of their respective books, records and related documents) in connection with the transactions contemplated by this Agreement and the decision by the Lender Parties whether to proceed with the Closing of this Agreement on the Closing Date. Lender Parties and their consultants, agents and designees shall complete such due diligence, investigation and analysis of the foregoing (the "Property Verification Condition") during the period (the "Property Verification Period") commencing on the Effective Date and ending on the date that is sixty (60) days thereafter (the "Property Verification Deadline"); however, the Property Verification Deadline shall be extended by an additional business day for each business day that there is any material delay: (i) by a Conveying Party or their consultants, agents and designees in the performance of any of its obligations hereunder, or (ii) in the ability of a Lender Party to access or receive any of the information, documents or consents required hereunder. The Conveying Parties and the Lender Parties shall use reasonable efforts to avoid an extension of the Property Verification Deadline beyond the date that is seventy-five (75) days after the Effective Date. The Conveying Parties shall provide a suitable workspace for six people during the Property Verification Period to be used by the Noteholders, Transferee Entities and their consultants, agents and designees for the foregoing due diligence, investigation and analysis, and such persons may continue to use such workspace thereafter for purposes of preparation of the Closing unless and until this Agreement terminates.

 

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(b)          In order to facilitate the satisfaction of the Property Verification Condition, the Conveying Parties agree that the Lender Parties or anyone reasonably authorized by them may go upon the Property at reasonable times during the Property Verification Period to confirm the Property Verification Condition. With three (3) business days’ prior notice to the Conveying Parties, Lender Parties shall have the right to make reasonable inquiries (directly or indirectly) of contractors, subcontractors, tenants, prospective tenants, vendors, employees, lenders, guests, consultants, governmental authorities or other third parties (collectively, "Key Contacts") regarding the Property or the transactions contemplated hereby. Lender Parties have been informed of and acknowledge the importance to Conveying Parties that Conveying Parties are afforded the opportunity to coordinate and facilitate initial contact with any Key Contacts to minimize any adverse reaction by such Key Contacts in connection with any such inquiries by Lender Parties. Although Conveying Parties cannot assure the availability of a Key Contact at any given time, Conveying Parties agree to use good faith reasonable efforts to achieve such coordination and facilitation within three (3) business days after any request therefor by a Lender Party. After the Property Verification Deadline and until the Closing Date, Lender Parties may reasonably request updated information related to the Property, its operations and any other relevant matters, and the Conveying Parties agree to use good faith reasonable efforts to supplement and update all of such documents, records and information and promptly provide same to Noteholders and Transferee Entities.

 

(c)          The Conveying Parties shall not permit any liens, mortgages or encumbrances to exist on any or all of the Property except for those liens, mortgages and encumbrances set forth on Exhibit 2(c) hereto that Lender Parties have consented to in writing.

 

(d)          During the Property Verification Period, the applicable Parties shall use good faith reasonable efforts to obtain the following (collectively, the "Property Verification Documents"):

 

(i)          The parties acknowledge that prior to the date of this Agreement, the FCB Modification was consummated, and as part of the FCB Modification, First Credit Bank agreed to extend the term of the First Credit Bank Loan, but did not agree that LA Borrower and any and all other Borrower Parties having any liability or obligations under the First Credit Bank Loan were released from such liabilities and obligations under the First Credit Bank Loan. L’Auberge Newco hereby agrees to indemnify and hold harmless Spector for, from and against all losses, costs and expenses, including, without limitation, reasonable attorneys’ fees directly caused by the Transferee Parties and arising from the enforcement by FCB of any documents securing the First Credit Bank Loan against Spector (collectively “FCB Losses”); provided, however, that in no event shall L’Auberge Newco have any obligation to indemnify or hold harmless Spector on account of FCB Losses arising from any act or omission of a Borrower Party (other than a failure to make any payment of principal or interest as and to the extent the same first become due and payable after the Closing under the terms of the First Credit Bank Loan) or the breach by any Borrower Party of any loan document securing or relating to the First Credit Bank Loan (other than a failure to make any payment of principal or interest as and when required herein).

 

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(ii)         Conveying Parties and Lender Parties jointly shall use reasonable efforts to obtain the affirmative assurance from Title Company that, upon recordation of the Deeds, the Title Company will irrevocably commit to issue an ALTA extended coverage owner’s title insurance policies at usual rates (individually, an "Owner’s Policy" and collectively, the "Owner’s Policies") for the LaMerra Property, insuring HL Newco’s title to that Property described in Exhibit B, for the L’Auberge Property, insuring L’Auberge Newco’s title to that Property described in Exhibits F-i and J, for the Orchards Inn Property insuring Orchards Newco’s title to the Orchards Inn Property described in Exhibit F-ii, for the Orchards Annex Property Lease Interest leasehold title to the property described in Exhibit 2(d)(ii), and insuring the Option, all in an insured amount requested by those Transferee Entities, subject only to the title exceptions, contained in Schedule B – Section II of a title commitment for each Property issued by the Title Company and reasonably acceptable to the Transferee Entity, containing those customary endorsements (to the extent available under each Owner’s Policy), as each such Transferee Entity may reasonably require, so that the Property may be operated after the Closing in a manner substantially consistent as has been operated prior to the Closing (collectively, the "Title Assurance"). Except for title exceptions contained in any lenders’ title insurance policies issued in connection with the HL Loan and the LA Loan on or before January 1, 2011, which title exceptions are deemed approved by Lender Parties, any other title matters shall require the approval of the Lender Parties, in their sole and absolute discretion, in order to be approved title exceptions under each Owner’s Policy. Transferee Entities shall provide to (and shall authorize Escrow Agent and Title Company to provide to) Conveying Parties copies of all title commitments and amendments thereto pertaining to the Property.

 

(iii)        Conveying Parties (with the reasonable cooperation of the Transferee Entities) shall use reasonable efforts to obtain (A) the Consents to Assignment of Lease in the forms of Exhibits 2(d)(iii)-A, 2(d)(iii)-B, 2(d)(iii)-C, 2(d)(iii)-D, 2(d)(iii)-E and 2(d)(iii)-F and 2(d)(iii)-G attached hereto and incorporated herein (the "Consent to Assignment of Lease") to be executed by the applicable lessor of such lease, (B) consent from any other any party whose consent to the transactions contemplated by this Agreement is required pursuant to a recorded instrument, and (C) the release of the applicable assignor from any and all liabilities and obligations under service agreements, delivery contracts, and another vendor contracts relating to the operation of the Property, subject to the payment of any balances due or owing in accordance with the terms of this Agreement. Notwithstanding the foregoing, the Transferee Entities shall have the right to terminate, without penalty or cost, any or all of the Lease Interests (or any portion thereof) at Closing or at any time upon thirty (30) days prior notice to the applicable lessor under such Lease Interest and each of the Conveying Parties shall cause each Lease Interest to be amended on or prior to the Closing to provide for such right of termination by the Transferee Entities. The Transferee Entities’ obligation to continue to make rental or other payments due under any Lease Interest that is not terminated at Closing shall continue until the expiration of the thirtieth (30th) day after the date such notice is delivered to the applicable lessor.

 

The consents and releases required under Section 2(d)(iii) collectively are referred to as the "Third Party Consents".

 

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(iv)        If on or before the Property Verification Deadline: (A) Lender Parties reasonably determine that the Property Verification Conditions are not materially true, complete and correct (without duplication of any already provided materiality standard elsewhere provided) or otherwise reasonably satisfactory, or (B) Lender Parties and/or Conveying Parties (as the case may be) have not, despite their diligent good-faith reasonable efforts, obtained any of (1) the Title Assurance, (2) the Third Party Consents, (3) the documents described in the Exhibits and Schedules hereto, (4) or the other documents and instruments contemplated hereby as of the Property Verification Deadline, then Lender Parties shall have the right to deliver to Conveying Parties written notice thereof (the "Lender Parties’ Notice") on or before the Property Verification Deadline, which Lender Parties’ Notice shall describe in reasonable detail the conditions under clauses (A) and/or (B) above that have not been met or are not satisfactory. If the Lender Parties deliver a Lender Parties’ Notice pursuant to the immediately preceding sentence, and/or if any of the Title Assurance, the Third Party Consents or other documents and instruments contemplated hereby have not been timely obtained in accordance with Section 2(d) above or as otherwise provided herein, then Lender Parties and Conveying Parties shall reasonably and in good faith attempt to satisfy the outstanding conditions and resolve any matters disputed by Conveying Parties contained in Lender Parties’ Notice, within fifteen (15) days after the expiration of the Property Verification Deadline (the "Resolution Period"), by exchanging such information as is reasonably necessary or appropriate to attempt to resolve the matter, communicating with applicable third parties as appropriate and taking any other actions as are reasonably necessary or appropriate. Unless (I) (a) Lenders Parties’ Notice is withdrawn by written notice from Lender Parties or the objections contained therein have been satisfied to the reasonable satisfaction of the Lender Parties or (b) Lender Parties and Conveying Parties have agreed in writing to proceed to Closing in accordance with the Adjusted Settlement Protocol (defined below) or otherwise as otherwise agreed upon in writing to resolve any such disputes, and (II) the Title Assurance and all outstanding Third Party Consents and other documents and instruments contemplated hereby are obtained (or the Lender Parties, in their sole and absolute discretion, have waived in writing the requirement therefor), as applicable, on or before the expiration of the Resolution Period, this Agreement automatically shall terminate upon the expiration of the Resolution Period, the Loan Documents will continue in full force and effect and the parties hereto may pursue any and all rights and remedies at law or in equity to which they are entitled under the Loan Documents or otherwise (collectively, the "Pre-Agreement Rights and Remedies"), and no party hereto shall thereafter have any further liability or obligation under this Agreement to complete the transactions hereunder. Additionally, prior to the expiration of the Resolution Period, the Conveying Parties shall update the Exhibits, Schedules, and the representations and warranties set forth in this Agreement by written notice to the Lender Parties within five (5) Business Days of a Conveying Party’s knowledge that any of the information set forth in the Exhibits or Schedules, or any of the representations or warranties made by a Conveying Party, is not materially true and complete as and when made or is no longer true and correct; provided that the Conveying Parties shall notify the Lender Parties in writing of any of the foregoing to the extent discovered during the two (2) business day period prior to the Resolution Period or the Property Verification Deadline but Lender Parties shall have the right to not proceed with the Closing and terminate this Agreement, whereupon this Agreement automatically shall terminate, the Loan Documents will continue in full force and effect and the parties hereto may pursue their Pre-Agreement Rights and Remedies. If (x) the Conveying Parties fail to cure such breach within the earlier of ten (10) days of discovery of or receipt of notice of such breach or the expiration of the Resolution Period (or the Property Verification Deadline, if the Resolution Period is not applicable) or (y) Lender Parties do not waive any such breach, this Agreement automatically shall terminate, the Loan Documents will continue in full force and effect and the parties hereto may pursue their Pre-Agreement Rights and Remedies. If a Conveying Party is notified by a Lender Party that any of the information set forth in the Exhibits or Schedules, or any of the representations or warranties made by a Conveying Party, is not materially true and complete as and when made or is no longer true and correct and the Conveying Parties have failed to cure such requests by a Lender Party regarding such breach ) the Conveying Parties fail to cure such breach within the earlier of ten (10) days of discovery of or receipt of notice of such breach or the expiration of the Resolution Period (or the Property Verification Deadline, if the Resolution Period is not applicable), the Lender Parties shall have the right to terminate this Agreement.

 

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(v)         Subject to the right of termination of Lender Parties as provided in Section 2(d)(iv) above (and subject to the conditions to Closing under and terms of this Agreement), the parties hereto will proceed with all action necessary to close and deliver all documents and deliveries required pursuant hereto on or before the Closing Date.

 

(e)          Intentionally Omitted.

 

(f)          The additional loan proceeds from the FCB Modification were paid directly to LA Noteholder as a reduction of the amount due and payable by LA Borrower under the LA Loan. Notwithstanding the foregoing, those certain amounts due and payable by LA Borrower under the First Credit Bank Loan described on Exhibit 2(f) hereto were paid to First Credit Bank at the closing of the FCB Modification from the proceeds otherwise payable to LA Noteholder the FCB Modification (together, the “FCB Payments”). IMHFC agrees that during the term (the “Interest Payment Term”) that commences on the date of the closing of the FCB Modification and terminates on the earlier to occur of: (i) the Closing Date; or (ii) the date this Agreement is terminated or is no longer in effect, for any reason, IMHFC shall timely pay to First Credit Bank any interest payments allocable to the sum of $6,596,792.27 (which represents the amount of the proceeds of the FCB Modification, less the FCB Payments). The interest payments payable by IMH hereunder shall be calculated on a pro-rata basis, based on the actual number of days in the Interest Payment Term. On or prior to the Closing Date, the Conveying Parties shall cause an amount equal to the FCB Payments to be reimbursed to LA Noteholder. In the event First Credit Bank requires payments of real estate taxes, assessments or other similar amounts allocable to the prior to the Closing Date (together, the “FCB Tax Payments”) to be paid out of the proceeds of the FCB Modification, the Conveying Parties shall cause an amount equal to the FCB Tax Payments to be reimbursed to LA Noteholder at the Closing. The Adjusted Settlement Protocol shall apply to the Conveying Parties’ obligation to reimburse LA Noteholder for the FCB Payments and the FCB Tax Payments, as more particularly described in Section 13 of this Agreement.

 

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(g)          The Transferee Parties shall have the exclusive option (the “Option”) to acquire from LA Borrower the Schnebly Hill Property or the Affordable Housing Lease Interest, or either of them (together, and each, individually, the “Option Property”). The Option may be exercised by the Transferee Parties (or any of them), in their sole and absolute discretion, providing written notice to LA Borrower (the “Exercise Notice”) on or prior to the one hundred eightieth (180th) day following the Closing (the “Option Expiration Date”). If the Transferee Parties timely deliver an Exercise Notice, then LA Borrower shall convey to a designee of the Transferee Parties, all of LA Borrower’s right, title and interest in and to the Option Property for $1.00. The closing of such conveyance shall occur no later than the tenth (10th) day following the date LA Borrower receives the Exercise Notice, and at the closing thereof, (i) with respect to the Schnebly Hill Property, LA Borrower shall deliver a special warranty deed substantially in the form of Exhibit 8(a)(i) hereto, a bill of sale and general assignment substantially in the form of Exhibit 8(b)(i) hereto, and such other documents reasonably required by the Transferee Parties or Escrow Agent to cause Escrow Agent to issue an ALTA extended coverage owners title insurance policy insuring such designee of the Transferee Parties as the fee simple owner of the Schnebly Hill Property; and (ii) with respect to the Affordable Housing Lease Interest, LA Borrower shall deliver an assignment and assumption of lease and consent to assignment of lease substantially in the form of Exhibit 2(d)(iii)-A hereto, and such other documents as are reasonably requested by the Transferee Parties. The Transferee may record a memorandum of the Option in the official records of the county in which the Option Property is located. If the Transferee Parties fail to timely exercise the Option prior to the Option Expiration Date, then the Option shall automatically expire and shall be of no further force or effect and the Transferee Parties shall cause a release of the Memorandum to be recorded in the official records of the county in which the Option Property is located, and if the Option expires with respect to the Schnebly Hill Property, the Transferee Parties shall also consent to a sale by LA Borrower of the Schnebly Hill Property, notwithstanding the terms of the Voting Trust Agreement which may prohibit such a sale; provided that such sale is for an amount that exceeds the then-outstanding balance of the Schnebly Hill Loan and such sale does not result in any liability whatsoever to any Transferee Party.

 

(h)          Spector Offices shall have the exclusive option (the “HIDC Option”) to acquire from HL Noteholder (if acquired by HL Noteholder or its affiliate) all of its right, title and interest in and to the HIDC Interest (as defined in Section 8(o) below). The HIDC Option may be exercised by Spector Offices, in its sole and absolute discretion, providing written notice to LA Noteholder (the “HIDC Exercise Notice”) on or prior to the date which is one hundred eighty days (180) following the date on which HL Noteholder (or its affiliate) acquires the HIDC Interest (the “HIDC Option Expiration Date”). If Spector Offices timely delivers an HIDC Exercise Notice, then HL Noteholder shall cause all right, title and interest in and to the HIDC Interest to Spector Offices for the payment of $200,000.00 (the “HIDC Purchase Price”). The closing of such conveyance shall occur no later than the tenth (10th) day following the date HL Noteholder receives the HIDC Exercise Notice, and at the closing thereof, HL Noteholder shall cause an assignment and assumption of the HIDC Interest substantially in the form of Exhibit 8(t) hereto, and such other documents as are reasonably requested by Spector Offices, and Spector Offices shall deliver the HIDC Purchase Price to HL Noteholder or its designee. If Spector Offices fail to timely exercise the HIDC Option prior to the HIDC Option Expiration Date or fails to timely and properly deliver the HIDC Purchase Price, then the HIDC Option shall automatically expire and shall be of no further force or effect.

 

3.          Warranties and Representations of Conveying Parties.

 

Subject to the modification and update of the Exhibits, Schedules, and representations and warranties as contemplated pursuant to Section 2, as of the Effective Date, the Property Verification Deadline (or, if applicable, the date that the Resolution Period has expired) and the Closing Date, the Conveying Parties and the Spector Trust jointly and severally represent and warrant to Lender Parties, the accuracy of the following representations and warranties, the accuracy of which shall be a Lender Parties’ Condition to Closing as set forth in Section 7:

 

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(a)          This Agreement: (i) is executed voluntarily and not pursuant to any duress; (ii) is executed in mutual good faith among the parties; (iii) is given for the express consideration set forth in the Recitals above and as otherwise set forth herein; and (iv) is not given or intended to hinder, delay, or defraud any creditor, or to contravene any of the bankruptcy laws of the United States (11 U.S.C. § 101 et seq.), hereinafter referred to as the Bankruptcy Code, or any other applicable laws;

 

(b)          This Agreement is not given as security for the payment of money or any indebtedness, or as security of any kind or nature;

 

(c)          Exhibits 3(c)-i through 3(c)-x attached hereto and incorporated herein lists all existing tenants of the applicable Property (the "Tenants"), and to each Conveying Party’s actual knowledge, there is no default under any Lease on the part of such Conveying Party or any Tenant except as indicated on Exhibits 3(c)-i through 3(c)-x (provided that all defaults by a Conveying Party under a Lease shall be cured or waived by the applicable Tenant prior to Closing);

 

(d)          Except as set forth in Schedule 3(d) attached hereto: (i) no Conveying Party is a party to any pending, current or appealable litigation, (ii) no Conveying Party has received written notice of any threatened or potential litigation against it, or its Property and (iii) no Conveying Party has any unsatisfied judgment;

 

(e)          Except as identified in Schedule 3(e) attached hereto, no proceedings in bankruptcy have been instituted and served or threatened in writing by or against any Conveying Party (including Spector) in any court, nor has any Conveying Party (including Spector) made an assignment for the benefit of creditors;

 

(f)          There will be no service, management, operation, or supply contracts relating to the Property that will be binding on any of the Transferee Entities upon Closing except as disclosed on Exhibits 1(a)-i through 1(a)-x and on Exhibits 1(h)-i through 1(h)-x. The applicable Conveying Party shall, at the discretion of the Transferee Entities, cause each such contract to be assigned to the Transferee Entity on the Closing;

 

(g)          Except as set forth on Schedule 3(d)-i, no Conveying Party has received any notice of material violation with respect to any Property of Federal or State Laws governing hazardous or toxic waste or substances. Each Conveying Party hereby discloses to Lender Parties that Borrowers may have stored and used vehicle fuel, fertilizer, and other similar substances on or about the Property in the ordinary course of business provided the same (i) have been and continue to be in compliance with all applicable environmental laws, (ii) have not and do not result in contamination of the Property and (iii) have not had and do not otherwise have a material adverse effect on the Property;

 

(h)          Each Conveying Party is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Arizona and has the power and authority necessary to: (i) transact the business in which it is engaged, and, (ii) enter into this Agreement and each of the other documents and agreements contemplated hereby and, subject to obtaining the consents contemplated hereby, perform its obligations hereunder (including HL Borrower’s execution, assignment and delivery of the Assignment and Assumption of Declarant’s Rights and Appointment of Design Review Committee (the LaMerra Property) (the "Assignment of Declarant’s Rights") attached hereto as Exhibit 3(h);

 

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(i)          The execution, delivery and performance by a Conveying Party of this Agreement (together with all agreements and documents contemplated hereby) and the consummation of the transactions contemplated herein have been duly authorized and approved in accordance with its organizational documents. This Agreement, and each document, agreement and instrument executed in connection herewith, is and shall, constitute the legal, valid and binding obligations each Conveying Party, enforceable against each Conveying Party in accordance with the terms hereof or their respective terms (as the case may be), except as enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the rights of creditors generally;

 

(j)          No consent, approval, authorization, registration, or filing with any governmental or regulatory authority, or any other person or entity, is required to be made in connection with the execution, delivery and performance of this Agreement by a Conveying Party or the consummation by it of the transactions contemplated hereby, except with respect to the Contracts identified in Exhibits 1(a)-i through 1(a)-x, the Licenses and Permits identified in Exhibits 1(f)-i through 1(f)-x, and the Leases identified in Exhibit 1(h), each of which consents, approvals, authorizations, registrations or filings will have been made or obtained on or before the Closing;

 

(k)          Except for the consents described in this Agreement and the consents set forth on Exhibits 2(d)(iii)-i, 2(d)(iii)-ii, 2(d)(iii)-iii, 2(d)(iii)-iv, 2(d)(iii)-v, 2(d)(iii)-vi and 2(d)(iii)-vii hereto (except to the extent not applicable because of the termination of the applicable Lease Interest), the execution and delivery of this Agreement by the Conveying Parties, the compliance with the terms of this Agreement by them and the consummation of the transactions by them contemplated hereby, do not and will not conflict with or result in a breach or default under the terms, conditions or provisions of any agreement with a third party to which a Conveying Party is a party;

 

(l)          Upon Closing, the Borrower Parties and the Conveying Parties and each of their respective members (as applicable) will benefit from this Agreement;

 

(m)          Except as disclosed in Exhibit 3(m), no Conveying Party has received any notice (oral or written) disputing title to the Property or any part thereof. No Conveying Party has contracted with any person or entity for the purchase of any or all of its Property. Except as disclosed in Exhibit 3(m), no Conveying Party has any knowledge of any facts by reason of which possession or title to any or all of its Property may be called into question;

 

(n)          Except as set forth on Exhibit 3(n), each Conveying Party has filed and paid all required transaction privilege and use taxes and filed such returns as are required of them with all state and local governments and filed and paid all required employer tax withholding and employment related charges and contributions;

 

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(o)          Amara does not, directly or indirectly, own any assets properties, or rights of any kind;

 

(p)          All insurance policies related to the any or all of the Property are in full force and effect and except as set forth on Exhibit 3(p), there are no actual, pending or to a Conveying Party’s actual knowledge, threatened claims with respect thereto; provided, however, the Noteholders acknowledge that the following insurance policies relating to Spector as required under the LA Loan and/or the HL Loan are not in effect and have been or are in the process of being terminated with Noteholder’s consent: Prudential policy numbers L8329846, L8320719 and L8329827;

 

(q)          Except as disclosed in Exhibit 3(q), there are no direct or indirect transactions with any "Related Parties" involving the Property or the Conveying Parties. "Related Parties" means an Affiliate of a Conveying Party (including any direct or indirect equityholder of any such Affiliate), a member of Executive Management, an employee of a Conveying Party or a Family Member of Executive Management. For purposes hereof, (1) “Executive Management” means each of the following individual: Albert B. Spector, (2) “Family Member” means, with respect to any individual, such individual’s spouse (or registered domestic partner) and descendents (by birth or adoption) and such individuals other than immediate family (including parents, stepparents, siblings, and mothers- and fathers-in-law) and (3) Susannah Durant, Canyon Portal II, Sinagua Plaza, Sedona Culinary aka Canyon Breeze Restaurant, Tasting Arizona, Open Range Restaurant, SP-LA Art Gallary LLC, Barrett Realty, Rocky Mountain Chocolate, Spector Offices LLC, and Serenity Spa. “Affiliate” means, with respect to any Person, (i) any other Person who controls, is controlled by or it under common control with such Person, (ii) any director or officer of such Person or any Person specified in clause (i) above, or (iii) any other Person in which such Person has a five percent (5%) or more beneficial interest or as to which such Person serves as a managing member, manager, general partner, trustee or in a similar fiduciary or management capacity.

 

(r)          As of the Effective Date and as of the Closing, (A) no Conveying Party is (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury ("OFAC") and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the "List"), and (ii) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (B) none of the funds or other assets or properties of the Conveying Party constitutes property of, or are beneficially owned, directly or indirectly, by any Embargoed Person (as hereinafter defined), and (C) no Embargoed Person has any interest of any nature whatsoever in the Conveying Party (whether directly or indirectly). The term "Embargoed Person" means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder.

 

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(s)          No Conveying Party intends for this transaction to be subject to the Interstate Land Sales Full Disclosure Act or the Arizona public report requirements applicable to sales of subdivided lands.

 

(t)          The copies of documents delivered and information delivered to Noteholders or Transferee Entities pursuant to this Agreement are materially true, complete and exact copies of the originals of those documents.

 

(u)          All tangible, intangible, intellectual and other assets or properties owned by Conveying Parties used or necessary or advisable in connection with the business of the Property will be conveyed to the Transferee Entities with the consummation of the Closing of this transaction (except as set forth on Exhibit 3(u).

 

(v)         To the actual knowledge of the Conveying Parties, all information furnished by or on behalf of Conveying Parties hereunder (including all information contained in the Exhibits and Schedules hereto or in the other documents and agreements executed in connection herewith) for purposes of or in connection with this Agreement, the documents executed in connection herewith, or any transaction contemplated herein or therein is true, complete and correct, in all material respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information (individually and taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.

 

(w)        [Intentionally Omitted]

 

(x)          Employment.

 

(i)          Exhibit 3(x)(i) is a correct and complete list of any individuals who are employed full-time or part-time, or otherwise perform personal services with respect to the Property and include each such individual’s job title, years of employment and compensation, at the Property and current accrued unused vacation and sick leave of such individuals, as well as a listing of any applicable employment agreements or personal services contracts for such individuals;

 

(ii)         Except as set forth on Exhibit 3(x)(ii), no Conveying Party is represented by any labor union, labor organization or other employee group or association with respect to their employment at the Property, and, to the knowledge of Conveying Parties, there are no organizing activities, representation proceedings or demands for recognition or certification pending with regard to such persons;

 

(iii)        Except as set forth on Exhibit 3(x)(iii), no Conveying Party is a party to, bound by or in the process of negotiating any collective bargaining agreement, memorandum of understanding or other labor-related contract, arrangement or understanding with any labor union, labor organization or other employee group or association applicable to persons employed at or performing personal services at the Property. All employees at the Property are employed at will and there is no severance pay due and owing to any such employees at termination of employment or transfer to a successor;

 

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(iv)        Except as set forth on Exhibit 3(x)(iv), no Conveying Party is bound by or in the process of negotiating any employee leasing, shared labor or potential joint or single employer contracts or personal services contracts, arrangements or understandings involving the Property;

 

(v)         Except as set forth on Exhibit 3(x)(v), no Conveying Party has experienced or been affected by any strike, boycott, slowdown, walkout, work stoppage, or lockout within the past six (6) months and there is no such labor action pending or, to Conveying Parties’s knowledge, threatened against or otherwise affecting any Conveying Parties with respect to employees or personal service providers at the Property;

 

(vi)        Except as set forth on Exhibit 3(x)(vi), there are no grievances, demands arbitrations, suits, legal actions, administrative charges claims or administrative investigations, pending or threatened against the Conveying Parties with respect to the employees or individuals who perform personal services at the Property;

 

(vii)       The Conveying Parties and its Affiliates are in compliance with all laws, material agreements, contracts, and policies respecting employment and employment practices with respect to employees and personal service providers who work or perform services at the Property;

 

(viii)      (i) No Conveying Party has effectuated a "plant closing" (as defined in the Worker Adjustment and Retraining Notification Act, or any similar state or local law (the "WARN Act")) or a "mass layoff" (as defined in the WARN Act) involving employees working at the Property in the past year and (ii) as of the Closing Date, none of the employees of Conveying Parties will have experienced "employment loss" (as defined in the WARN Act) in the prior ninety (90) days prior to the Closing Date;

 

(ix)         Exhibit 3(x)(ix) contains a true and complete list of each deferred compensation and each incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974 (as amended from time to time, "ERISA")); each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by any Conveying Parties or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Conveying Parties would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which the Conveying Parties or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee of the Conveying Parties (the "Employee Benefit Plans"). Each of the Employee Benefit Plans that is subject to Section 302 or Title IV of ERISA or Section 412 of the Internal Revenue Code of 1986 (as amended from time to time, the "Code") is hereinafter referred to in this Section 6.1(o) as a "Title IV Plan." No Conveying Party, nor any ERISA Affiliate has any commitment or formal plan, whether legally binding or not, to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan;

 

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(x)          No Title IV Plan is a "multiemployer pension plan," as defined in Section 3(37) of ERISA (a "Multiemployer Plan"), nor is any Title IV Plan a plan described in Section 4063(a) of ERISA. No Conveying Parties nor any ERISA Affiliate has made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full);

 

(xi)         Each of Conveying Parties’s 401(k) plans and any other Employee Benefit Plans is intended to be and has been determined by the IRS to be a "qualified" plan under Section 401(a) of the Internal Revenue Code for which a favorable determination letter or opinion letter has been issued by the IRS and no event has occurred since the issuance of such letter that could reasonably be expected to adversely affect such qualified status; and

 

(xii)        Each Employee Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and other applicable laws, rules and regulations and no event has occurred and no condition exists which would subject the Conveying Parties or its Affiliates (or after the Closing, Transferee Entities or Affiliates) to any liability by reason of Conveying Parties or its Affiliate’s affiliation with any members of their "Controlled Group" (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m), or (o) of the Code), to any tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable laws, rules or regulations.

 

The term "actual knowledge" as used in this Agreement as applicable to the representations and warranties of a Conveying Party means that such representations and warranties are based solely on the actual (not constructive or imputed) knowledge of Mr. Albert B. Spector, Jr., as of the applicable date, after reasonable inquiry, including making inquiry of the general managers, the food and beverage directors and the engineering supervisors of the L’Auberge de Sedona Resort, the Orchards Inn (including the Taos Restaurant), the LaMerra Property, the Canyon Portal Shopping Center and each Conveying Party.

 

The representations and warranties in this Section 3 shall survive the Closing for a period of twelve (12) months and thereafter shall terminate.

 

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4.Warranties and Representations of Lender Parties.

 

The Lender Parties represent and warrant to the Conveying Parties as of the Closing Date that:

 

(a)          This Agreement is executed in mutual good faith among the parties and is given for the express consideration set forth in the Recitals above and as otherwise set forth herein.

 

(b)          Each is a limited liability company duly organized, validly existing and in good standing under the laws of the state of its organization and if applicable, is authorized to transact business in Arizona, and has all power, authority and rights necessary to: (i) transact the business in which it is engaged, (ii) enter into this Agreement and each of the other documents and agreements contemplated hereby, and (iii) perform its obligations hereunder.

 

(c)          The execution, delivery and performance of this Agreement (together with all agreements and documents contemplated hereby) and the consummation of all transactions contemplated herein and therein have been duly authorized and approved in accordance with its organizational documents. This Agreement, and each document, agreement and instrument executed in connection herewith, is and shall constitute their legal, valid and binding obligations enforceable against each in accordance with the terms hereof or their respective terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting the rights of creditors generally.

 

(d)          Except as set forth on Exhibit 4(d) hereto or as will have been obtained or made on or before the Closing or such other date as contemplated hereby, no consent, approval or authorization from, or registration or filing with, any governmental or regulatory authority or any other person or entity, is required, or to be made by it in connection with the execution, delivery and performance of this Agreement or the consummation by it of the transactions contemplated.

 

(e)          Except for the consents required under the First Credit Bank Loan Documents, the consents described in this Agreement and the consents set forth on Exhibit 4(e) hereto, the compliance with the terms of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or result in a breach or default under the terms, conditions or provisions of any agreement to which it is a party or by which it may be bound.

 

(f)          As of the Effective Date and as of the Closing, (A) Transferee Entities are (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury ("OFAC") and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the "List"), and (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (B) none of the funds or other assets of any Transferee Entity constitute property of, or are beneficially owned, directly or indirectly, by any Buyer Embargoed Person (as hereinafter defined), and (C) no Embargoed Person has any interest of any nature whatsoever in any Transferee Entity (whether directly or indirectly. The term "Embargoed Person" means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder.

 

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(g)          Lender Parties do not intend for this transaction to be subject to the Interstate Land Sales Full Disclosure Act and it is exempt from the Arizona public report requirements applicable to sales of subdivided lands.

 

The representations and warranties in this Section 4 shall survive the Closing for a period of twelve (12) months and thereafter shall terminate.

 

5.Interim Agreements of Parties.

 

(a)          Except in the ordinary course of business, as would be in accordance with prior practice over the preceding twelve (12) months, or as required by law, from the Effective Date through the Closing Date, no Conveying Party will without the reasonable consent of the Lender Parties (i) enter into, modify or waive material provisions of, or terminate any material agreements relating to Property, including any Leases or employment agreements, (ii) remove from the Property any material portions of the personal property or other intangible property being conveyed pursuant to this Agreement, or (iii) materially change the usual business practices and operation of the Property, including, inventory and supplies levels, maintenance, employment and maintenance of reserves. Additionally, and without limiting the foregoing, from the Effective Date through the Closing Date, no Conveying Party will, without the reasonable consent of the Lender Parties, make any payment, disbursement or other expenditure of any nature, except in accordance with the Approved Budget (as defined in Section 18(a) of this Agreement). Except as provided in Exhibit 5(a), Conveying Parties (including Spector) confirm that none of the foregoing described in clauses (i) or (ii) of this Section 5(a) has occurred since January 1, 2011, and none of the foregoing described in clause (iii) of this Section 5(a) has occurred since November 1, 2012.

 

(b)          From the Effective Date through the Closing Date (or until termination of this Agreement), no Conveying Party (including Spector) shall file a voluntary petition under Title 11 of the United States Code or an involuntary petition under Title 11 of the United States Code against any other Conveying Party. If an involuntary petition under Title 11 of the United States Code is filed against any Conveying Party, such Conveying Party shall promptly, but in no event later than sixty (60) days of the filing thereof, cause the dismissal of such involuntary petition.

 

6.As-Is Transaction.

 

(a)          AS OF THE EFFECTIVE DATE AND AS OF CLOSING, Transferee Entities ACKNOWLEDGE AND AGREE THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES, AND COVENANTS MADE IN THIS AGREEMENT, THEY ARE ACQUIRING THE PROPERTY (INCLUDING ANY PROPERTY INTEREST) AND ANY IMPROVEMENTS NOW OR HEREAFTER MADE THERETO IN "AS IS" AND "WHERE IS" CONDITION, "WITH ALL FAULTS", AND THAT THE PROPERTY IS BEING CONVEYED AND TRANSFERRED IN "AS IS" AND "WHERE IS" CONDITION "WITH ALL FAULTS".

 

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(b)          UPON CLOSING, EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES, AND COVENANTS MADE IN THIS AGREEMENT and the other documents and instruments executed in connection herewith (INCLUDING THE POST-CLOSING RIGHTS AND REMEDIES OF THE PARTIES UNDER PARAGRAPH 13), EACH PARTY (on behalf of itself AND ITS AFFILIATES AND AGENTS) DISCLAIMS and WAIVES ALL EXPRESS AND IMPLIED WARRANTIES AND ANY AND ALL CLAIMS OF LIABILITY AGAINST EACH OTHER PARTY AND their respective AFFILIATES and agents (INCLUDING CLAIMS AGAINST BORROWER PARTIES, CONVEYING PARTIES AND LENDER PARTIES), ARISING OUT OF OR RELATING TO THE PROPERTY, THE BUSINESS OPERATED THEREON, THE LOANS, AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER ARISING IN TORT, CONTRACT, UNDER ANY STATUTE, WARRANTY, STRICT LIABILITY OR OTHERWISE (PROVIDED THAT NO Lender PARTY or its affiliates or agents SHALL BE DEEMED TO HAVE WAIVED ANY CLAIMS RELATED TO ARISING FROM A FRAUD ON SUCH Person).

 

The foregoing releases, waivers and terms of this Section 6 shall be binding upon the Parties, their successors and assigns and shall survive the Closing.

 

7.Closing; Closing Conditions.

 

(a)          The consummation of the transaction contemplated by this Agreement shall be deemed to close (the "Closing") upon recordation of the Deeds (defined below) by Escrow Agent. It shall be a Lender Parties’ Condition to Closing (defined below) that Title Company shall have agreed in writing that, simultaneously with recordation of the Deeds, it will be irrevocably committed to issue to the applicable Transferee Entities an Owner’s Policy in accordance with the Title Assurance obtained from the Title Company pursuant to Section 2, including those endorsements (to the extent available under each Owner’s Policy), as agreed upon in the Title Assurance (the "Title Policy Condition"). Subject to terms of this Agreement, the Closing shall occur on the date that is twenty (20) days after the Property Verification Deadline or promptly (not to exceed five (5) days) after the Resolution Period, if applicable (the "Closing Date") or such other time as agreed to by the Parties hereunder, but in no event shall the Closing occur later than May 20, 2013. The Closing shall occur at the office of Escrow Agent or such other office as agreed to by the Parties hereunder.

 

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(b)          The obligation of Lender Parties to Close is subject to the satisfaction as of the Closing Date of the conditions (the "Lender Parties’ Conditions to Closing") that subject to any applicable notice and cure periods: (i) all covenants required to be performed by any of the Conveying Parties (including Spector) as of Closing Date shall have been performed pursuant to the terms of this Agreement and the representations and warranties in Section 3 shall be accurate as of the applicable date, and (ii) the Title Policy Condition shall be satisfied, either of which may be waived, in whole or in part and in their sole and absolute discretion, by Lender Parties in writing at or prior to the Closing. If the Closing fails to occur on or prior to the Closing Date because a Lender Parties’ Condition to Closing is not satisfied, then Lender Parties shall elect by written notice delivered to Borrower Parties on or before 5:00 p.m. (Phoenix, Arizona time) on the business day immediately following the Closing Date to (a) waive all unsatisfied Lender Parties’ Condition(s) to Closing and proceed with the Closing on that date which is three (3) business days after the Closing Date (provided that Conveying Parties also agree in writing to waive such condition if such condition also is a Borrower-related Parties’ Conditions to Closing), (b) require the applicable Conveying Party to specifically perform such condition within an applicable grace period (or pursuant to proceedings for equitable relief) or (c) terminate this Agreement, whereupon this Agreement automatically shall terminate, the Loan Documents will continue in full force and effect and the parties hereto may pursue their Pre-Agreement Rights and Remedies. If Lender Parties do not deliver the written notice described in the preceding sentence, then Lender Parties shall be deemed to have elected to terminate pursuant to option (c). Notwithstanding the foregoing, Lender Parties may enforce their permitted pre-Closing remedies under Section 13 if the failure of the condition is also a default by a Conveying Party.

 

(c)          The obligation of Conveying Parties to Close is subject to the satisfaction as of the Closing Date of the conditions (the "Borrower-related Parties’ Conditions to Closing") that subject to any applicable notice and cure periods: (i) all covenants required to be performed by Lender Parties as of the Closing Date shall have been performed pursuant to the terms of this Agreement and the representations and warranties in Section 4 shall be accurate as of the such date; and (ii) the First Credit Bank Extension, Consent, Release and Novation has been obtained any of which Borrower-related Parties’ Conditions to Closing may be waived in whole or in part by Conveying Parties, as applicable, in writing at or prior to the Closing. If the Closing fails to occur on or prior to the Closing Date because a Borrower-related Parties’ Conditions to Closing is not satisfied, then Conveying Parties shall elect by written notice delivered to Lender Parties on or before 5:00 p.m. (Phoenix, Arizona time) on the business day immediately following the Closing Date to either (a) waive all unsatisfied Borrower’s Condition(s) to Closing and proceed with the Closing on that date which is three (3) business days after the Closing Date, or (b) terminate this Agreement, whereupon this Agreement automatically shall terminate, the Loan Documents will continue in full force and effect and the parties hereto may pursue their Pre-Agreement Rights and Remedies. If Conveying Parties do not deliver the written notice described in the preceding sentence, then they shall be deemed to have elected to terminate pursuant to option (b).

 

8.           Conveyance and Closing Documents. On or before the Closing Date (or within the timeframes otherwise provided below), (i) the applicable Conveying Parties, shall execute, have acknowledged where applicable, and deliver to Escrow Agent (or Lender Parties, as mutually agreed by the parties), and (ii) the applicable Lender Parties shall execute, have acknowledged where applicable, and deliver to Escrow Agent (or Conveying Parties, as mutually agreed by the parties), the following instruments, payments and other deliveries, to be dated as of the Closing Date (where appropriate) (collectively, the "Closing Documents"):

 

(a)          Special Warranty Deeds in the forms attached hereto and incorporated herein as Exhibits 8(a)-i through 8(a)-iii for conveying the LaMerra Property to HL Newco and the L’Auberge Property and the Orchards Inn Property to Orchards Newco (the "Deeds");

 

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(b)          Bill of Sale and Assignment and Assumption of Scheduled Assumed Liabilities (which shall include all cash, accounts, receivables, and intellectual property, subject to the terms of this Agreement) in the forms attached hereto and incorporated herein as Exhibits 8(b)-i through 8(b)-iv (collectively, the "Bills of Sale") which are intended to be an acceptance of collateral in full and complete satisfaction of an obligation pursuant to the Uniform Commercial Code with the consent of the debtors and other necessary parties;

 

(c)          The Estoppel Certificates in the form of Exhibits 8(c)-i through 8(c)-iii"(the "Estoppel Certificates");

 

(d)          The Assignment of Declarant’s Rights and a quit-claim assignment of any other right, title and interest in or related, directly or indirectly, to the LaMerra property;

 

(e)          The Assignment of Leases in the forms attached hereto and incorporated herein as Exhibits 2(d)iii-A through 2(d)(iii)-B (collectively, the "Assignments of Leases"), unless the Transferee Entities have elected to terminate the applicable Lease Interest;

 

(f)          The Consents to Assignment of Leases;

 

(g)          The Assignment and Assumption of the L’Auberge de Sedona, LLC Assets and Scheduled Assumed Liabilities in the form of Exhibit 8(g);

 

(h)          The Assignment and Assumption of the Orchards Inn Assets and Scheduled Assumed Liabilities in the form of Exhibit 8(h);

 

(i)          Assignment and Assumptions of the assets and Scheduled Assumed Liabilities of HL Borrower, Orchards Annex, Taos Cantina and LA Spa, each in substantially the form of Exhibit 8(h);

 

(j)          Intentionally Omitted;

 

(k)         Intentionally Omitted;

 

(l)          Intentionally Omitted;

 

(m)        The Third Party Consents obtained pursuant to Section 2;

 

(n)          Intentionally Omitted;

 

(o)         The HL Loan Satisfaction and Release and the LA Loan Satisfaction and Release in the forms of Exhibits 8(o)-i and 8(o)-ii, respectively, attached hereto and all documents contemplated thereunder, pursuant to which, among other terms, all guaranties shall be deposited with the Escrow agent and contemporaneously with the Closing shall be marked "terminated" by the Escrow Agent and shall be returned to Borrowers; provided, however, that with respect to that certain Unconditional Loan Guaranty dated June 11, 2007, by Spector and Gechman in favor of IMH Secured Loan Fund, LLC, there shall be no release of Gechman. Notwithstanding the foregoing, HL Noteholder may retain any rights it may have under the HIDC pledge of its 20.825% interest in Canyon Portal (the “HIDC Interest”) and the related HIDC HL SOS UCC, and may pursue its rights thereunder to become a non-managing member of Canyon Portal.

 

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(p)          A quit-claim assignment of the Noble House Letter in the form of Exhibit 8(p) attached hereto;

 

(q)          Forms to be filed with the Arizona Department of Water Resources pertaining to the transfer of the LaMerra Water Rights, the L’Auberge Water Rights, and the Orchards Inn Water Rights in the forms attached here to as Exhibit 8(q)-i through 8(q)-v, and such documents, instruments or other forms reasonably necessary to transfer all rights to and control of the Retreat on Oak Creek Domestic Water Improvement District (the “DWID”), including, without limitation, written resignations from each of the board members of the DWID existing as of the Closing Date and such other documents as is reasonably necessary to appoint replacement board members selected by the Transferees, in their sole and absolute discretion;

 

(r)          Transferee Entities’ payments required to be paid under this Agreement, including: (i) a cash payment to Spector or his designee in the amount of $200,000 (the "Spector Payment") payable on the Closing Date, subject to potential offset pursuant to the Adjusted Settlement Protocol, (ii) a cash payment in the amount of $400,000 to Orchards Annex (the "Orchards Annex Payment"), subject to potential offset pursuant to the Adjusted Settlement Protocol on the sixtieth (60th) day following the Closing Date, and (iii) the Avion Payment (defined below).

 

(s)          The Avion Noble House Letter (as defined below).

 

(t)          Intentionally Omitted;

 

(u)          Such other funds, instruments or documents as are reasonably necessary to fulfill the covenants and obligations to be performed pursuant to this Agreement. All funds to be deposited hereunder shall be in the form of cash, wire transfer or other good and sufficient funds immediately available in Flagstaff, Arizona. All funds necessary to pay any amounts due under this Agreement at the Closing, shall be deposited into Escrow by the applicable party hereto at least one (1) business day prior to the Closing Date;

 

On the date of Closing: (i) Escrow Agent shall conduct the Closing, record the applicable Closing Documents and deliver to Conveying Parties and Lender Parties the applicable Closing Documents and (ii) the Lender Parties and Conveying Parties, as applicable, shall take such actions, in the manner described in the "Day of Closing Protocol" attached hereto as Exhibit 8(u). All conveyances contemplated hereby must occur concurrently and no portion of this transaction shall close without all conveyances and transactions contemplated hereby occurring concurrently therewith. Upon Closing, Conveying Parties shall provide possession of the Property to Transferee Entities, subject to the terms contained in the Closing Documents.

 

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In accordance with Section 18(c), from and after the Closing, the Transferee Entities shall be responsible for all employee payroll accruing from and after the Closing Date of the employees of L'Auberge de Sedona, LLC, Orchards Inn which are operating the L'Auberge de Sedona Resort and the Orchards Inn. With respect to employees of Barrett providing services to the L’Auberge de Sedona Resort and Orchards Inn, the Transferee Entities shall provide written notice to the Conveying Parties on or prior to the expiration of the Property Verification Period of which, if any, of such employees the Transferee Entities elect, in their sole and absolute discretion, to employ following the Closing.

 

9.Employees.

 

(a)          Transferee Entities shall have the right to offer employment to any or all of the employees L’Auberge de Sedona, LLC and Orchards Inn following the Closing. The Transferee Entities shall notify the Conveying Parties at before the Closing of any such employees that the Transferee Entities elect to not offer employment and the Conveying Parties shall notify such employees thereof; provided that Transferee Entities shall provide no less than sixty (60) days of severance pay to such employees in consideration for the continued performance by such employees of their duties for such severance period. Each of the Conveying Parties shall cooperate (without cost or liability) with the Transferee Entities by providing work-related information regarding its employees at the Property to the extent permitted by law, in connection with the Transferee Entities determination of which employees to extend offers of employment.

 

(b)          Transferee Entities acknowledge and agree that Transferee Entities (or the applicable employee leasing or other organization) shall be considered for purposes of the WARN Act to be the employer of such employees of Conveying Parties who are offered and accept employment with Transferee Entities as of the expiration of the Post Closing Period (the "Retained Employees").

 

(c)          Provided the Conveying Parties’ employees do not experience any employment losses as defined in WARN within 90 days prior to Closing, the Transferee Entities agree that (i) they will not take any actions within 60 days on or after the Closing Date that results in an "employment loss," as that term is defined under the WARN Act, for more than 49 of the full-time Retained Employees; or (ii) should Transferee Entities do so, Transferee Entities shall indemnify, defend, protect, and hold harmless Conveying Parties and all their affiliates from any and all losses and liability resulting from any compliance obligation (including any obligation to give notice or pay money or benefits) Transferee Entities or any of its affiliates has or may have under the WARN Act arising from Transferee Entities’ actions within 60 days after the Closing Date that result in an "employment loss," as that term is defined under the WARN Act, for more than 49 of the full-time Retained Employees.

 

(d)          Conveying Parties and Transferee Entities each shall be responsible for its own notification obligations, if any, under the WARN Act, including any notification obligations that may arise from any employment loss by any employees who were employed by Conveying Parties as of the Closing Date or any Retained Employees employed by Transferee Entities following the Closing Date.

 

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(e)          Conveying Parties and Transferee Entities intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Retained Employee who accepts an employment offer by Transferee Entities that is consistent with the requirements of Section 9(a) including any separation, termination or severance benefits, and that each such Retained Employee will have continuous employment immediately before and immediately after the Closing Date. Transferee Entities shall be liable for and shall indemnify, hold harmless, protect and defend the Conveying Parties for, from and against: (i) any statutory, common law, contractual or other severance, if any, with respect to any Retained Employees arising out of employment by the applicable Transferee Entities on and after Closing Date. The Conveying Parties shall be liable for and shall indemnify, hold harmless, protect and defend the Transferee Entities for, from and against (i) any statutory, common law, contractual or other severance, obligations, liabilities or claims, if any, with respect to any employees of, or individuals performing personal services for, any of the Conveying Parties prior to Closing Date.

 

10.         Indemnities.   Each of the Conveying Parties (including Spector), jointly and severally, shall pay, indemnify, defend, and hold the Lender Released Persons (each, an "Indemnified Person") harmless (to the fullest extent permitted by law) for, from and against any and all liabilities, loss, costs, expenses, actions, claims, demands, suits, actions, investigations, proceedings, and damages, and all reasonable all court costs and attorneys fees and disbursements and other reasonable costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a “Claim”) (a) in connection with or as a result of or related to the execution, delivery, enforcement or performance (including any restructuring or workout with respect hereto) of this Agreement, any of the other documents executed in connection herewith, or the transactions contemplated hereby or thereby, and (b) with respect to any investigation, litigation, or proceeding related to this Agreement, any document executed in connection herewith (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto (all the foregoing, collectively, the "Indemnified Liabilities” and each, individually, an “Indemnified Liability”); provided, however, that with respect to Claim arising under subpart (b) above, if any such investigation, litigation or proceeding is initiated and after the full completion thereof, it is conclusively determined by a court of competent jurisdiction or other appropriate authority that such Claim has a value of less than: (i) $25,000, with respect to any individual matter giving rise to such Claim; or (ii) $75,000 in the aggregate, with respect to multiple matters giving rise to such Claim, then a such Claim shall not be an Indemnified Liability. From and after the Closing, Transferee Entities, jointly and severally, shall indemnify, defend, and holds harmless Borrower Parties for, from and against any claims, suits, demands, liabilities, loss, costs, expenses, actions and other damage, including all court costs and reasonable attorney’s fees (collectively, the "Claims") arising out of the failure of the Transferee Entities to pay Scheduled Assumed Liabilities related to the operation of the Property, subject to the Adjusted Settlement Protocol (defined below) and the post-Closing rights and remedies contained in Section 13(b).

 

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The foregoing indemnities shall survive the Closing and shall not terminate. Each of the Conveying Parties (including Spector), jointly and severally, shall pay, indemnify, defend and hold the Lender Parties, harmless from and against, any loss, claim, liability, expense, or other damage attributable to Taxes of a Conveying Party or related to the Property with respect to any Tax year or portion thereof ending on or before the Closing, or for any Tax year beginning before and ending after the Closing to the extent allocable to the portion of such period beginning before and ending on the Closing Date; or any liability arising on or before Closing of a Conveying Party attributable to the unpaid Taxes of any Person under Reg. §1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise. In the case of any sales or use taxes, value-added taxes, employment taxes, withholding taxes and any other Tax based on or measured by income, business activity, receipts or profits earned during a Tax year beginning before and ending after the Closing, the Tax attributable on or before the Closing shall be deemed to equal the amount that would be payable if the Tax year ended on and included the date of Closing; and in the case of personal property, real property, ad valorem and other Taxes of the Conveying Parties imposed on a periodic basis during a Tax year beginning before and ending after the Closing, the Tax attributable on or before the Closing shall be deemed to be the amount of the Taxes for the entire Tax year beginning before and ending after the Closing multiplied by a fraction, the numerator of which is the number of days in such Tax year and the denominator of which is the number of days in such Tax year.

 

The foregoing indemnity shall survive the Closing.

 

For purposes of this Section 10(b), ‘‘Tax’’ or ‘‘Taxes’’ means any federal, state, or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code §59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transaction privilege, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including any interest, penalty, or addition thereto, whether disputed or not.

 

11.         Release of Released Lender Parties. Upon the Closing, and on the condition that the Closing occurs, without limiting any other exculpatory, indemnification, or other rights, powers, privileges or remedies of the Released Lender Parties (defined below), each of the Conveying Parties (including, without limitation, Spector) (the "Borrower Releasing Parties"), on behalf of themselves and their heirs, successors, and assigns, hereby release and discharge all claims, demands, causes of action, counterclaims, defenses and offsets against Lender Parties, their current and prior subsidiaries, affiliates, attorneys, directors, officers, shareholders, members, partners, trusts, employees, agents, advisors, consultants, servicers, lenders, and any other person, corporation or entity that might be claimed to be liable on their behalf (the "Released Lender Parties") and do hereby release, acquit and forever discharge the Released Lender Parties from any and all debts, obligations, promises, agreements, covenants, contracts, controversies, suits, actions, guaranties, warranties, representations, causes of action, judgments, executions, claims and demands, damages of any kind, liability and costs of every kind and character in law or in equity, known or unknown, that Borrower Releasing Parties have or hereinafter can, shall or may have against the Released Lender Parties for, upon or by reason of any matter, cause, or thing whatsoever, whether vested or contingent, accrued or unaccrued, suspected or claimed, that any of the Borrower Releasing Parties have heretofore had and asserted or could have asserted or which they may hereafter have or assert against the Released Lender Parties for, upon or by reason of any matter, cause, or thing whatsoever (other than fraud), which has occurred or arisen at any time prior to the Closing, related to or arising out of any act or omission of any of the Released Lender Parties in connection with the Loan Documents or the Loans evidenced and secured thereby (the "Released Lender Liabilities"). Each Borrower Releasing Party covenants not to sue any of the Released Lender Parties with respect to the Released Lender Liabilities. Each Borrower Releasing Party represents and warrants that it has not heretofore assigned or transferred or purported to have assigned or transferred to any person, firm, corporation or any other entity any of the matters described in the release set forth herein. Each Borrower Releasing Party acknowledges that there is a risk that, subsequent to the release contemplated hereby, the Borrower Releasing Party may discover, incur, or suffer claims that were unknown to that Borrower Releasing Party or unanticipated at the time of signing of this Agreement or the Closing, including, without limitation, unknown or unanticipated claims that, had they been known, may have materially affected the decision to provide the release contemplated hereby. Nothing in this Section is intended to limit Borrower Releasing Parties’ rights to pursue any remedies available under this Agreement or under any document or agreement entered into or delivered pursuant to this Agreement for any obligation or liability of the Lender Parties which, by its terms, survives the Closing or the earlier termination of this Agreement. This Section 11 shall survive the Closing and shall not terminate.

 

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12.         Release of Released Borrower Parties . Upon the Closing, and on the condition that the Closing occurs, each of the Lender Parties on behalf of themselves and their heirs, successors, assigns and affiliates, hereby release and discharge all claims, demands, causes of action, liabilities, counterclaims, defenses and offsets against Borrower Parties, other than Gechman, and their current and prior subsidiaries, affiliates, advisors, consultants, attorneys, officers, employees, agents, directors, officers, shareholders, members, partners, trusts, employees, and any other person, corporation or entity that might be claimed to be liable on their behalf, other than Gechman, (collectively, the "Released Borrower Parties") and do hereby release, acquit and forever discharge the Released Borrower Parties from any and all debts, obligations, promises, agreements, covenants, contracts, controversies, suits, actions, guaranties, warranties, representations, causes of action, judgments, executions, claims and demands, damages of any kind, liability and costs of every kind and character in law or in equity, known or unknown, that Lender Parties have or hereinafter can, shall or may have against the Released Borrower Parties for, upon or by reason of any matter, cause, or thing whatsoever, whether vested or contingent, accrued or unaccrued, suspected or claimed, that any of the Lender Parties have heretofore had and asserted or could have asserted or which they may hereafter have or assert against the Released Borrower Parties for, upon or by reason of any matter, cause, or thing whatsoever (other than fraud), which has occurred or arisen at any time prior to the Closing, arising out of or relating to the Loans and/or the Loan Documents, and Lender Parties acknowledge that upon Closing the Released Borrower Parties shall have no further liability or obligation whatsoever arising out of or relating to the Loans and/or the Loan Documents (collectively, the "Released Borrower Liabilities"). Each Lender Party covenants not to sue any of the Released Borrower Parties with respect to the Released Borrower Liabilities. Each Lender Party represents and warrants that it holds all applicable rights necessary to validly release the matters set forth herein. Each Lender Party acknowledges that there is a risk that, subsequent to the release contemplated hereby, the Lender Party may discover, incur, or suffer claims that were unknown to that Lender Party or unanticipated at the time of signing of this Agreement or the Closing, including, without limitation, unknown or unanticipated claims that, had they been known, may have materially affected the decision to provide the release contemplated hereby. This Section 12 shall survive the Closing and shall not terminate. Nothing in this Section is intended to limit Lender Parties’ rights to pursue the post-Closing remedies described in this Agreement, any remedies available under this Agreement or under any document or agreement entered into or delivered pursuant to this Agreement for a failure to perform thereunder, or for any obligation or liability which, by its terms, survives the Closing or the earlier termination of this Agreement, or to pursue Gechman and or any individual, corporation, association, partnership, limited liability company, trust, joint venture, business trust or unincorporated organization or other entity or organization that might be claimed to be liable on Gechman’s behalf.

 

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13.Remedies.

 

(a)Pre-Closing Remedies:

 

If on or before Closing and prior to the Property Verification Deadline (and prior to expiration of the Resolution Period, if applicable), a party hereto (the "Defaulting Party") breaches any of the terms or provisions of this Agreement including any representation or warranty, or otherwise defaults hereunder, and fails to cure such breach or default within ten (10) days following written notice thereof given by another party hereto (the "Non-defaulting Party"), the Non-defaulting Party may terminate this Agreement by written notice to the other Parties, whereupon no party hereto shall thereafter have any further liability or obligation to complete the transaction under this Agreement, and the Parties shall have their Pre-Agreement Rights and Remedies.

 

If, on or before Closing and after the Property Verification Deadline (and after expiration of the Resolution Period, if applicable), and provided that this Agreement has not terminated pursuant to Section 2, a Defaulting Party breaches any of the terms or provisions of this Agreement including any representation or warranty, or otherwise defaults hereunder, and fails to cure such breach or default within ten (10) days following written notice thereof given by the Non-defaulting Party, the Non-defaulting Party may either: (i) terminate this Agreement by written notice to the other Parties on or before five (5) days after the expiration of the 10-day cure period, whereupon no party hereto shall thereafter have any further liability or obligation to complete the transactions under this Agreement, and the Parties shall have their Pre-Agreement Rights and Remedies; (ii) waive such default and consummate the transaction contemplated hereby in accordance with the terms hereof, as agreed upon in writing between the Parties during the Resolution Period, if applicable, or pursuant to the Adjusted Settlement Protocol (defined below) if agreed upon between the Parties during the Resolution Period; or (iii) institute proceedings necessary to specifically enforce the terms hereof, as agreed upon in writing between the Parties during the Resolution Period, if applicable, or pursuant to the Adjusted Settlement Protocol if agreed upon between the Parties during the Resolution Period.

 

For purposes hereof, "Excluded Items" collectively means all of the following costs, expenses and items:

 

(i)          $1,670,955 in respect of excess interest, points and closing costs paid to FCB by Borrower Parties through the Maturity Date of the Loans, but not offset under the Loans,

 

(ii)         amounts properly and reasonably reserved and actually paid by the Borrower Parties in respect of capital expenditures, but not in amounts greater than: (1) four percent (4.0%) of revenues per year for the Orchards Inn Property, and (2) for the L’Auberge Property, (A) two percent (2.0%) of revenues per year for the years 2008 through 2011, and (B) four percent (4.0%) of revenues per year thereafter, and

 

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(iii)        amounts properly and reasonably applied from operating cash flow, as follows: (1) $1,440,861 to the payment of certain vendor notes and other payables, including, without limitation, payments with respect to: (a) the Tiffany Construction note, (b) the Shamrock Food Service notes, and (c) amounts payable to Dibble Construction, Azadi Rugs, and KHI Design, (2) Payments totaling $67,460 for spa renovation, and (3) Payments totaling $149,170 for the pool area, including landscaping, fencing, pool bathrooms and workout room.

 

The following modifications to the closing payment obligations shall apply at Closing (the "Adjusted Settlement Protocol"):

 

Except for the Excluded Items (for which Conveying Parties shall have no liability), the Conveying Parties shall be jointly and severally liable for any and all (i) liabilities relating to the Property arising prior to Closing that are not Scheduled Assumed Liabilities, (ii) defaults or breaches of any representations, warranties, covenants, indemnifications or other obligations (whether express or implied) hereunder or under any document or instrument executed or delivered in connection herewith, (iii) any advances made by a Lender Party to protect any or all of the Property from any liabilities or to preserve the value of the Property or to satisfy any obligations of the Conveying Parties, including without limitation, the FCB Payments and/or the FCB Tax Payments and (iv) reasonable attorney’s fee incurred by a Lender Party in connection with the enforcement of this Agreement; provided Conveying Parties shall only be responsible pursuant to this Section 13(a) for such items if such costs, expenses, damages, liabilities and attorneys’ fees in the aggregate exceed One Million Dollars ($1,000,000) (the "Pre-Closing Deductible Threshold"). After reaching the Pre-Closing Deducible Threshold, the Lender Parties shall have the right to offset (subject to the limitations contained herein) the amounts of such unpaid costs and expenses in excess of the Pre-Closing Deductible Threshold against first, the Spector Payment and/or the Orchards Annex Payment, and second, against any other amounts owing to a Conveying Party by a Lender Party payable upon Closing. If after reaching the Pre-Closing Deductible Threshold, and after giving effect to any offsets pursuant to the immediately preceding sentence, there remain liabilities owing to the Lender Parties pursuant to this Section 13(a), the Conveying Parties agree to pay to the Lender Parties such amounts but in no event shall such payments exceed One Million Dollars ($1,000,000). Notwithstanding anything to the contrary contained in this paragraph, in no event shall Conveying Parties (collectively) be responsible to pay more than $1,000,000, plus the amount of any offsets. The Pre-Closing Deductible Threshold and Excluded Items are only offsets that shall be applied against liabilities owing to the Lender Parties and in no event shall the foregoing be interpreted to require that any of the Lender Parties pay or disburse to any of Spector or a Conveying Party all or any of the Pre-Closing Deductible Threshold or Excluded Items. The Pre-Closing Deductible Threshold and the "cap" shall be applied collectively to each of the Conveying Parties; provided that neither the Pre-Closing Deductible Threshold nor the "cap" shall apply in the event of a fraud by any Conveying Party (including a good faith and reasonable allegation of fraud by a Lender Party against any Conveying Party).

 

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(b)Lender Parties Post-Closing Remedy.

 

Upon Closing and provided that Closing occurs, except for the Excluded Items (as defined in Section 13(a)) (for which Conveying Parties shall have no liability), the Conveying Parties shall be jointly and severally liable for (i) any and all liabilities relating to the Property arising prior to Closing that are not Scheduled Assumed Liabilities, (ii) defaults or breaches of any representations, warranties, covenants, indemnifications or other obligations (whether express or implied) hereunder or under any document or instrument executed or delivered in connection herewith, (iii) any advances made by a Lender Party to protect any or all of the Property from any liabilities or to preserve the value of the Property or to satisfy any obligations of the Conveying Parties and (iv) reasonable attorney’s fee incurred by a Lender Party in connection with the enforcement of this Agreement; provided that Conveying Parties shall only be responsible pursuant to this Section 13(b) for such items if such costs, expenses, damages, liabilities and attorneys’ fees in the aggregate exceed One Million Dollars ($1,000,000) (the "Post-Closing Deductible Threshold"). After reaching the Post-Closing Deducible Threshold, the Lender Parties shall have the right to offset (subject to the limitations contained herein) the amounts in excess of Post-Closing Deductible Threshold against first, the Spector Noble House Payment, the Spector Payment and/or the Orchards Annex Payment and, second, against any other amounts owing to a Conveying Party by a Lender Party under this Agreement. If after reaching the Post-Closing Deductible Threshold, and after giving effect to all offsets pursuant to the immediately preceding sentence, there remain liabilities owing to the Lender Parties pursuant to this Section 13(b), Conveying Parties agree to pay to the Lender Parties such amounts, but in no event shall the payment obligation exceed One Million Dollars ($1,000,000). Notwithstanding anything to the contrary contained in this paragraph, in no event shall Conveying Parties (collectively) be responsible to pay more than $1,000,000, plus the amount of any offsets, including pursuant to this Section 13(b). The Post-Closing Deductible Threshold and the "cap" shall be applied collectively to the Conveying Parties; provided that neither the Post-Closing Deductible Threshold nor the "cap" shall apply in the event of a fraud by any Conveying Party (including a good faith and reasonable allegation of fraud by a Lender Party against any Conveying Party). The Post-Closing Deductible Threshold and Excluded Items are only offsets that may be applied against liabilities owing to the Lender Parties and in no event shall the foregoing be interpreted to require that any of the Lender Parties pay or disburse to any of Spector or a Conveying Party all or any of the Post-Closing Deductible Threshold or Excluded Items. The foregoing obligations contained in this Section 13(b) of Conveying Parties shall survive the Closing for a period of twelve (12) months and then shall terminate.

 

(c)          Notwithstanding anything contained to the contrary in this Agreement or any Closing document, no party hereto shall be entitled to any incidental, consequential, speculative or punitive damages resulting from a Defaulting Party’s breach.

 

14.         Attorneys’ Fees. If any party commences any litigation or other legal proceedings against the another party for a default hereunder or to enforce the provisions hereof, the prevailing party in any such proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and expert witness fees, with attorneys’ fees to be determined by the court and not a jury in any such litigation.

 

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15.       Jurisdiction and Venue. Any action or proceeding pursuant to this Agreement shall be brought in an Arizona state or federal court of competent jurisdiction with venue in Maricopa County, Arizona.

 

16.       Brokerage. Each party warrants and represents to the other that no real estate sales or brokerage commissions or like commissions are or may be due in connection with this transaction. Each party agrees to indemnify, defend (with legal counsel reasonably acceptable to the indemnitee) and hold harmless the other party for, from and against any claims by third parties made by or through the acts of such party, for real estate or brokerage commissions, or a finder’s fee, arising out of or relating to the transactions provided herein, and all costs and expenses incurred by the indemnitee in connection therewith including, but not limited to, reasonable attorneys’ fees. Spector and Conveying Parties hereby disclose to Lender Parties that certain Spector and/or certain employees, representatives or affiliates of Spector are licensed real estate brokers or licensees but are not receiving a commission in connection with this transaction as a result thereof.

 

17.       WAIVER OF JURY TRIAL. EACH PARTY HEREUNDER ON BEHALF OF THEMSELVES AND THEIR AFFILIATES WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR RELATING THERETO AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

 

18.Transaction Costs; Operating Accounts; Transition.

 

(a)          Subject to the Approved Budget attached hereto as Exhibit 18(a) (the “Approved Budget”), which Approved Budget incorporates the November, 2012 operating statements and balance sheets, from the Effective Date to the Closing Date, Conveying Parties shall use commercially reasonable efforts to operate the Property in accordance with prior practices over the preceding twelve (12) months, including paying any and all accounts payable and other expenses in accordance with the Approved Budget.

 

(b)          The Approved Budget contains, among other information, an estimate of expenses to be incurred and revenue to be received on or before the Closing Date, and a list of payables owing by the Conveying Parties but which have not been paid. For purposes hereof, "accounts payable" shall include all expenses on the list of payables attached to the Approved Budget owing by the Conveying Parties incurred by the applicable Conveying Party in accordance with the Approved Budget, including payroll obligations and all other costs and expenses arising out of or relating to the Property, including all costs of ownership, operation (including employee payroll accruing after the Closing Date), construction, maintenance, repair and replacement. The Approved Budget shall be updated from time to time by Conveying Parties as reasonably requested by Lender Parties to reflect historical operations and estimated revenues and expenses through the Closing Date, as well as to update the list of accounts payable which remain unpaid. Commencing on the fifth day prior to the Closing Date, Conveying Parties shall update the Approved Budget (including the accounts payable list) on a daily basis and deliver a copy thereof to Lender Parties for Lender Parties’ approval, which approval shall not be unreasonably withheld or delayed. The accounts payable list set forth in the Approved Budget prepared by Conveying Parties on the day prior to the Closing and approved in writing by the Lender Parties, together with those certain costs and expenses arising out of or relating to the Property and the period prior to the Closing, in each case to the extent set forth in the updated Approved Budget approved by the Lender Parties in writing, are collectively referred to herein as the “Scheduled Assumed Liabilities.” The Lender Parties acknowledge and agree that the Scheduled Assumed Liabilities will include, without limitation, the following amounts: (i) $75,000 for payment to Squire Sanders & Dempsey; (ii) $124,000 for paid time off due and payable to employees of the Property; (iii) $170,000 for a payment due to the Arizona Department of Revenue on May 20, 2013; and (iv) $100,000 for a payment due to RDS. All costs and expenses whatsoever arising out of or relating to the Property, related to the period after the Closing, including all costs of ownership, operation, construction, maintenance, repair and replacement shall be the responsibility of the Transferee Entities.

 

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(c)          At the Closing, all Scheduled Assumed Liabilities shall, at the Transferee Entities’ election, in their reasonable discretion, either be paid in full through escrow from: (i) “Available Cash”, which is defined as the sum of: (A) cash in the operating accounts of the applicable Conveying Party; and (B) except as set forth below, credit card receivables held by the applicable Conveying Party (net of credit card processing costs), or (ii) in the case of recurring trade payables and other obligations with extended payment arrangements in place, such payables and obligations will be assumed and paid in due course by the Transferee Entities from Available Cash). Notwithstanding the foregoing, the Adjusted Settlement Protocol shall apply to any amounts credited to Available Cash from credit card receivables held by the Conveying Parties which have not been received in cash by the Transferee Entities on or prior to the sixtieth (60th) day following the Closing.

 

(d)          Upon Closing, the Transferee Entities shall pay through escrow the following costs, but only to the extent such costs are included in the Scheduled Assumed Liabilities: transaction costs and costs of Closing of this transaction, escrow fees, title insurance premiums and endorsement costs and recording costs. Lender Parties shall be responsible for all costs and expenses incurred by or on behalf of Lender Parties in connection with this Agreement, including its legal expenses, unless a Closing does not occur, in which case Conveying Parties shall jointly and severally reimburse Lender Parties for all costs and expenses incurred by a Lender Party in connection with this Agreement (including the legal fees and expenses of a Lender Party). Subject to the terms of the Adjusted Settlement Protocol, Conveying Parties shall be responsible for all other fees, costs and expenses.

 

(e)          At Closing (and as an expense paid through escrow) Transferee Entities shall pay to Avion Holdings, LLC $375,000 (without duplication of any amounts paid in respect thereof by any Person) toward the payment (the "Avion Payment") payable to Avion pursuant to that certain Retention Agreement dated May 17, 2011, a copy of which has been delivered to Lender Parties.

 

(f)          Subject to the terms of the Adjusted Settlement Protocol, on the Closing Date, Transferee Entities shall pay the Spector Payment and on the sixtieth (60th) day following the Closing Date, the Transferee Entities shall pay the Orchards Annex Payment.

 

(g)          Upon the Closing, all accounts receivable, deposits and other such amounts due or owing to, or held by or on behalf of Conveying Parties (including with respect to credit cards) and any other rights, claims, entitlements of the Conveying Parties related to the Property will be assigned to Transferee Entities.

 

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(h)          Upon Closing and payment of the Scheduled Assumed Liabilities and other costs from the operating accounts of the Conveying Entities through escrow, or assumption of the Scheduled Assumed Liabilities, as provided herein, all cash in the Conveying Parties’ bank accounts, if any, will be transferred to Transferee Entities through escrow at Closing.

 

(i)           Upon Closing, there will be customary prorations of real and personal property taxes, assessments liens or other encumbrances, transaction privilege taxes, bed taxes and sales taxes. The Adjusted Settlement Protocol shall apply to this item at Closing.

 

(j)           Upon the Closing, Conveying Parties’ utility and any other Property related deposits for the Property, if any, shall be assigned to the Transferee Entities.

 

(k)          On the third business day prior to the Closing Date, an updated accounting of all room and event deposits received by the Conveying Parties shall be provided to the Transferee Entities for review verification and approval.

 

(l)           On and as of the Closing, all claims of Conveying Parties and amounts owed to Conveying Parties, whether liquidated, in dispute or yet to be determined, relating to real property or personal property tax refunds will be transferred (without recourse) to Transferee Entities on and as of the Closing. In order to remove any doubt, it is understood that all such claims, amounts owed and claims for real property and personal property tax refunds will be owned by the Transferee Entities regardless of whether related to periods or events prior to and/or after the Closing.

 

(m)         There will be a customary pro-ration of expenses arising out of or relating to the ownership, operation, maintenance, repair or replacement of the Property or the businesses operated thereon (including, but not limited to, charges for electricity, gas, water, sewer, CATV or any other utility services furnished to the Property or any charges under utility service contracts) at Closing, and the obligation for all such items applicable to the period after the Closing shall be paid by the Transferee Entities and the obligation for all such items applicable to the period prior to Closing shall be paid by the Conveying Parties; provided, however that any amounts relating to the items described in this subsection that are Scheduled Assumed Liabilities shall be paid by the Transferee Entities. The Adjusted Settlement Protocol shall apply to this item at Closing.

 

(n)          During the ninety (90) day period following the Closing Date, any discrepancies that were outstanding as of the Closing Date, disclosed by a Conveying Party on or before the Closing Date and that were not reconciled shall be reconciled. During the twelve (12) month period following the Closing Date, the Lender Parties shall have the right to notify the Conveying Parties of any discrepancies (including undisclosed liabilities, improperly disclosed liabilities or discrepancies that were not reconciled) that were outstanding as of the Closing Date and, without limiting any other rights, remedies, powers and privileges that may be available to the Lender Parties.

 

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(o)          The voting trust agreement (the "Voting Trust Agreement") shall be in the form attached hereto as Exhibit 18(o) and will be delivered on the Effective Date. The Transferee Entities shall pay the costs of establishing the voting trust and ordinary fees and expenses related to the maintenance and operation of the voting trust. On the Effective Date, all of the equity interests of the Conveying Parties shall be transferred to an irrevocable voting trust controlled by Transferee Entities (or their designee) on the terms and conditions set forth in the Voting Trust Agreement, which shall include the following: (i) in the event the Closing has not occurred on or prior to May 20, 2013, the Voting Trust Agreement shall terminate automatically and without further action of the parties thereto; (ii) the powers granted to the trustee thereunder shall not include the power to cause the Conveying Parties to seek relief, including reorganization, arrangement or similar relief, from its creditors, by voluntary filing a bankruptcy, insolvency, receivership or other similar proceeding. Spector shall prepare all tax returns of the voting trust and pay for the preparation and filing thereof; provided that Lender Parties shall be provided with a copy of each such tax return at least ten (10) business days prior to the filing thereof. This Section 18(o) shall survive the Closing.

 

19.Additional Terms.

 

(a)          Prior to recording of the Deeds in the appropriate county records, the risk of loss or damage to the Property and all liability to third persons shall be borne by Conveying Parties, except solely arising out of or relating to the acts or omissions of Lender Parties after the Closing Date upon the Property, for which Lender Parties shall be responsible, which obligation shall survive Closing.

 

(b)          Insurance policies for the Property maintained by any of Conveying Parties will be maintained until, but terminated at midnight Arizona time on, the day of the recording of the Deeds in the appropriate county records; provided, however, that Lender Parties may, at their reasonable discretion, direct Conveying Parties to maintain, modify or amend any or all of such insurance policies as of the Closing Date by providing written notice to Conveying Parties on or prior to the fifteenth (15th) Business Day prior to the Closing Date. The Conveying Parties will cause the Lender Parties to be named as additional insureds on all such insurance policies and shall provide proof of such insurance to the Lender Parties within ten (10) Business Days prior to the Closing Date. Thereafter, the Transferee Entities will be responsible for insuring the Property. Any short rate cancellation premium refunds are assigned to and will be paid to the Transferee Entities.

 

(c)          To the extent Noteholders and/or IMHFC are required to make certain filings pursuant to federal or state securities or other law, including one or more Form 8-Ks in connection with this Agreement and the transactions contemplated herein, Noteholders and/or IMHFC will use reasonable efforts to provide Spector a reasonable opportunity to review such proposed filings or the key information intended to be included therein. The parties hereto agree to fully cooperate, prior to and after Closing, in accomplishing such filings and disclosures, without unreasonable cost or liability to Conveying Parties. This Section shall survive the Closing and shall not terminate.

 

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(d)          No Conveying Party may assign any right, title or interest in, to or under this Agreement without the prior written consent of the Lender Parties, which consent may be withheld in its sole discretion. Any attempted assignment in violation of this paragraph shall be null and void and shall constitute a default hereunder. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, subject to the foregoing provisions of this paragraph.

 

(e)          For one year following the Closing, Transferee Entities shall permit Conveying Parties reasonable access on five (5) days prior notice with reasonable frequency to all books and records pertaining to the Property and its operations for periods prior to the Closing Date to permit Borrower Parties to prepare tax returns and address other customary and reasonable pre-Closing matters.

 

(f)Intentionally Omitted.

 

(g)Intentionally Omitted..

 

20.         Confidentiality. Prior to Closing (or termination of this Agreement), except as specifically provided for in this Agreement, the parties to this Agreement agree to keep the financial terms of this Agreement confidential and not disclose the same except (i) as required by Securities and other laws, (ii) in any court filing or action or as otherwise is reasonably required to pursue rights and remedies under this Agreement, (iii) to regulatory agencies to the extent required by regulations of such agency, and (iv) to the parties’ attorneys, accountants, advisors, members, partners, shareholders, employees and current and potential lenders, potential mangers, purchasers and their representatives. If a party hereto is required to respond to a subpoena from a court or an inquiry or subpoena from a governmental agency, requiring disclosure of information about this Agreement or documents required to be delivered pursuant hereto or information obtained pursuant hereto pertaining to another party hereto, prior to responding the party hereto shall give prompt written notice thereof to the affected party hereto so that such other party hereto will have an opportunity to seek a protective order or other appropriate remedy or seek confidential treatment for the information.

 

21.         Non-Disparagement/Non-Solicitation. None of the Parties to this Agreement shall knowingly (a) directly or indirectly, make or ratify any statement, public or private, oral or written, to any person that disparages, either professionally or personally, any other party or any of its affiliates, past, present and future, and each of them, as well as its and their trustees, directors, officers, members, managers, partners, lenders, agents, attorneys, insurers, employees, consultants, stockholders, representatives, assigns, and successors, past, present and future, and each of them, or (b) make any statement or engage in any conduct that has the purpose or effect of disrupting the business of the Property and the conveyed assets and liabilities; provided that a judicial action validly brought to enforce rights hereunder shall not be deemed to be the type of conduct contemplated by the foregoing. Nothing in this Section shall in any way prohibit a party from disclosing such information as may be required by law or by judicial or administrative process or order or the rules of any securities exchange or similar regulatory organization applicable to a party in the circumstances. The provisions of this Section shall survive Closing for one year and then shall terminate; however, the provisions of this Section shall be void and of no force or effect if this Agreement terminates. The Conveying Parties agree that they shall not, directly or indirectly: (i), solicit, recruit or hire (or attempt to solicit, recruit or hire) any persons (other than any persons consented to in writing by the Transferee Parties) who have been employed at any time during the 12-month period immediately preceding such solicitation, recruitment or hiring or attempt thereof by the Conveying Parties at the L’Auberge de Sedona Resort, the Orchards Inn Resort or the Taos Cantina; (ii) interfere with the relationship of the Transferees with any person who is employed by or otherwise engaged to perform services for, or any investor, supplier, licensee, licensor or other business relation of the Conveying Parties relating to the L’Auberge de Sedona Resort, the Orchards Inn Resort or the Taos Cantina.

 

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22.         Entire Agreement. This Agreement and its exhibits and the documents and agreements executed in connection herewith constitute and embody the full and complete understanding and agreement of the parties hereto with respect to the matters addressed herein and supersede all prior understandings, offers, writings, letters, discussions and agreements, whether oral or in writing if any.

 

23.         Governing Law. This Agreement is executed and delivered in the State of Arizona, and the law of the State of Arizona shall govern its interpretation and enforcement without giving effect to the principles of conflicts of law.

 

24.         Waiver. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. Except as expressly provided in this Agreement, no waiver shall be binding unless executed in writing by the party hereto making the waiver. Any party hereto may waive any provision of this Agreement intended for its benefit; provided, however, such waiver shall in no way excuse the other party hereto from the performance of any of its other obligations under this Agreement.

 

25.         Time. Time is of the essence of this Agreement.

 

26.         Counterpart. This Agreement may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

27.         No Partnership. Nothing in this Agreement shall create any partnership, joint venture or other relationship between or among Lender Parties, on one hand, and Conveying Parties, on the other hand, other than as specifically sent forth herein.

 

28.         Effective Agreement. This Agreement shall be of no effect until executed by all the Parties named above. No person or entity shall be a third party beneficiary to this Agreement nor shall any person or entity not a party hereto be entitled to enforce the terms hereof.

 

29.         Joint and Several Liability. Conveying Parties (including Spector) shall be jointly and severally liable for any representations, warranties or covenants made by any Conveying Party (including Spector) under this Agreement.

 

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30.         Post-Closing Operation. There are numerous operating permits and licenses, and other rights (collectively the "Licenses") held by Conveying Parties or their affiliates (the "Licensees") necessary or desirable in the operation of the Property. The Transferee Entities or related entities (collectively "Transferees") will as promptly as practicable apply for, those same licenses from the various governmental agencies responsible for issuing the same. LA Borrower and Orchards Annex, LLC, for themselves and their affiliated or subsidiary entities who are the Licensees under the Licenses agree that to the extent Transferees have not obtained the necessary licenses or permits on the Closing Date, the Transferees may, to the extent permitted by law, regulation, or governmental practice and procedure, continue to operate under the applicable Licenses held by Licensees until Transferees obtain the applicable licenses, permits or rights, but in no event for more than one hundred twenty (120) days after Closing. Conveying Parties make no representation or warranty about the Lender Parties’ rights to use such Licenses, and is under no obligation to permit such use if not permitted by law or regulation. Transferee Entities shall jointly and severally indemnify, defend and hold the Licensees and Conveying Parties harmless for, from and against any claims, costs, demands, actions, liabilities, expenses (including reasonable attorneys’ fees) and obligations (including attorneys’ fees) incurred by Licensees and/or Conveying Parties arising out of or relating to any such Licenses or the use thereof or actions of Lender Parties with respect thereto, except for claims, costs, demands, actions, liabilities, expenses and obligations related to or arising from the gross negligence or willful misconduct of a Licensee or Conveying Party. The indemnity obligations shall survive the Closing and shall terminate twelve (12) months after the Closing. Conveying Parties have disclosed to Lender Parties that currently, both restaurants (L’Auberge and Taos Restaurant), operate under one series 12 Restaurant Liquor License. L’Auberge Newco will be required to file for a new Series 12 license for L’Auberge and Taos Cantina. The Arizona Department of Liquor Licenses generally issues a temporary license for any premises that is currently licensed to the new applicant when such applicant submits a completed new application in accordance with the department requirements. The Conveying Parties shall use commercially reasonable efforts to cooperate with the Transferee Entities or any Transferee in obtaining any Licenses.

 

31.         Legal Representation. The Parties hereby acknowledge that each has been represented by counsel of its own choosing in the negotiation and preparation of this Agreement, that they have, by and through their duly authorized representatives, each read this Agreement or has had it read to them, that each has been advised by counsel and is fully aware of the Agreement’s contents and its legal effect, and that all agreements, exceptions and understandings between the parties are embodied and expressed herein and that each enters into this Agreement freely, without coercion and based upon its own judgment and not in reliance upon any representations or promises made to each other, other than those contained herein.

 

32.         Cooperation. Conveying Parties and Lender Parties agree to execute from time to time, after Closing, such additional documents and instruments reasonably necessary and appropriate to carry out the full intent of this Agreement and to cooperate to endeavor to obtain any third party documents, consents and waivers reasonably necessary to effect the intent of this Agreement. Each Conveying Party shall bear all costs and expenses for such cooperation.

 

33.         Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be given by personal delivery, overnight courier or by deposit in the United States mail, first class, registered or certified, return receipt requested, postage prepaid, correctly addressed to the intended recipient at the addressees as follows:

 

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To Spector and Conveying Parties:

 

  c/o Al Spector
  6900 East Camelback Road, Suite 915
  Scottsdale, Arizona  85251
  e-mail:  [email protected]
  Telephone No.:  (602) 819-8809
   
With a copy to: Squire Sanders (US) LLP
  One East Washington Street, Suite 2700
  Phoenix, Arizona  85004
  Attention:  Steven L. Lisker
  e-mail:  [email protected]
  Telephone No.:  (602) 528-4023

 

With a copy to: Neil Elsey
  Avion Holdings, LLC
  15290 N. 78th Way, Suite B204
  Scottsdale, AZ 85260
  e-mail: [email protected]
  Telephone No.:  480-905-0466

 

To Lender Parties/  
Transferee Entities: c/o IMH Financial Corporation
  7001 North Scottsdale Road, Suite 2050
  Scottsdale Arizona  85253
  Attention:  Steve Darak
  e-mail:  [email protected]
  Telephone No.:  (480) 840-8321

 

With a copy to: McVey Law Firm, PLLC
  P. O. Box 5360
  Scottsdale, Arizona  85261-5360
  Attention:  John M. McVey, Esq.
  e-mail:  [email protected]
  Telephone No.:  (480) 840-8402

 

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and: Polsinelli PC
  One East Washington St., Suite 1200
  Phoenix, Arizona  85004
  Attention:  Jonathan T. Brohard, Esq.
  e-mail:  [email protected]
  Telephone No.:  (602) 650-2324

 

To Escrow Agent: Chicago Title Insurance Company
  2425 East Camelback Road, Suite 200
  Phoenix, Arizona  85016
  Attention:  DeWayne C. Huffman
  e-mail:  [email protected]
  Telephone No.:  (602) 667-1046

 

Such notices and other communications shall be deemed to be given and received as follows: (i) upon actual receipt, if delivered personally; (ii) the next business day, if delivered by overnight courier; and (iii) three (3) days following deposit in the mail, if delivered by mail. The parties and Escrow Agent may, from time to time, designate a different address by written notice given in the manner provided for above, not less than three (3) days prior to the effective date of the change. E-mail addresses are provided for informational purposes only but email is not a permitted form of notice for any notices required hereunder.

 

34.         IRS Real Estate Reporting. The Parties hereby appoint Escrow Agent as, and Escrow Agent agrees to act as, "the person responsible for closing" the transactions which are the subject of this Agreement pursuant to Internal Revenue Code of 1986 § 6045(e). Escrow Agent shall prepare and file the informational return (IRS Form 1099-B) required by and otherwise comply with the terms of Internal Revenue Code § 6045(e). Escrow Agent further agrees to indemnify and hold the Parties and their respective attorneys harmless for, from and against all claims, costs, liabilities, penalties or expenses resulting from Escrow Agent’s failure to file the appropriate reports and otherwise comply with the terms of the Internal Revenue Code pursuant to this paragraph.

 

35.         Construction. As used in this Agreement, the masculine, feminine and neuter gender and the singular or plural shall each be construed to include the other whenever the context so requires. This Agreement shall be construed as a whole and in accordance with its fair meaning, without regard to any presumption or rule of construction causing this Agreement or any part of it to be construed against the party causing the Agreement to be written. The parties acknowledge that each has had a full and fair opportunity to review the Agreement and to have it reviewed by counsel. If any words or phrases in this Agreement have been stricken, whether or not replaced by other words or phrases, this Agreement shall be construed (if otherwise clear and unambiguous) as if the stricken matter never appeared and no inference shall be drawn from the former presence of the stricken matters in this Agreement or from the fact that such matters were stricken. Wherever used herein, the terms "include(s)" or "including" shall not be words of limitation and shall mean "include(s), without limitation" or "including, without limitation." The descriptive headings of the paragraphs, subparagraphs and other portions of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provisions herein. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be valid under applicable law, but if any provision shall be invalid or prohibited hereunder, such provision shall be ineffective to the extent of such prohibition or invalidation but shall not invalidate the remainder of such provision or the remaining provisions. Each of the exhibits attached to this Agreement are hereby incorporated into this Agreement by reference and are made a part hereof.

 

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36.         Incorporation of Recitals. Each of the recitals set forth above are hereby incorporated into this Agreement and made a part hereof.

 

37.         No Recordation. Neither this Agreement nor any memorandum of this Agreement shall be recorded.

 

38.         Entire Transaction. This transaction must be consummated in its entirety, and no portion shall occur without the entirety of the transaction closing contemporaneously.

 

39.         Additional Consideration. Lender Parties hereby acknowledge receipt of a copy of the Noble House Hotels & Resorts letter of intent dated October 1, 2012 (the "Noble House Letter"). If any Lender Party or any affiliate thereof sells (directly or indirectly) all or any portion of the L’Auberge Property and/or the Orchards Inn Property to, or partners or joint ventures (directly or indirectly) with, Noble House (or any affiliate thereof) within one (1) year after the Closing, then such Lender Party (or affiliate thereof) shall pay, concurrently with the closing(s) or creation of the partnership(s) or joint venture arrangement(s), as applicable, through escrow (if applicable), as additional consideration hereunder, to Avion (the "Avion Noble House Payment"), an amount equal to: (i) 0.5% of the purchase price paid by Noble House (or any affiliate thereof) at such closing(s), in the event the total purchase price payable thereunder is $85,000,000 or greater (ii) 0.4% of the purchase price paid by Noble House (or any affiliate thereof) at such closing(s), in the event the total purchase price payable thereunder is $82,000,000 or greater but less than $85,000,000; and (iii) 0.25% of the purchase price paid by Noble House (or any affiliate thereof) at such closing(s), in the event the total purchase price payable thereunder less than $82,000,000. This paragraph shall survive Closing and shall not terminate except upon the making of the payments required pursuant to this Section.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above.

 

IMH:

IMH FINANCIAL CORPORATION, a Delaware corporation

 

By: /s/ Steven Darak
Print Name: Steven Darak
Its: CFO

 

HL NOTEHOLDER:

IMH SPECIAL ASSET NT 233, an Arizona limited liability company

 

By:

IMH Financial Corporation, a Delaware corporation

 

 

  By: /s/ Steven Darak
  Print Name: Steven Darak
  Its: CFO

 

 

LA NOTEHOLDER:

IMH SPECIAL ASSET NT 232, an Arizona limited liability company

 

By:

IMH Financial Corporation, a Delaware corporation

 

 

By: /s/ Steven Darak
Print Name: Steven Darak
Its: CFO

 

Amended and Restated Sedona Agreement - Signature Page 1
 

 

 

HL BORROWER:

HL LLC, an Arizona limited liability company

 

By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

LA BORROWER:

L’AUBERGE ORCHARDS LLC, an Arizona limited liability company

 

 

By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

Albert B. Spector

Albert B. Spector, Jr,

 

ORCHARDS ANNEX LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

ORCHARDS INN & RESTAURANT LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

Amended and Restated Sedona Agreement - Signature Page 2
 

 

L’AUBERGE DE SEDONA LLC, an Arizona limited liability company

 

   
  By:  
  Print Name:  
  Its:  

 

 

TAOS CANTINA LLC, an Arizona limited liability company

 

 
By:  
Print Name:  
Its:  

 

 

SEDONA CULINARY CONCEPTS LLC, an Arizona limited liability company

By: Spector Offices LLC

ITS: Manager
By: /s/ Alexandrea Vudrag
Print Name: Alexandrea Vudrag
Its: Manager

 

 

SPECTOR OFFICES LLC, an Arizona limited liability company

By: Spector Offices LLC

ITS: Manager
By: /s/ Alexandrea Vudrag
Print Name: Alexandrea Vudrag
Its:  Manager

 

 

BARRETT REALTY, LLC, an Arizona limited liability company

By: Spector Offices LLC

ITS: Manager
By: /s/ Alexandrea Vudrag
Print Name: Alexandrea Vudrag
Its: Manager

 

 

Amended and Restated Sedona Agreement - Signature Page 3
 

 

L’AUBERGE DE SEDONA LLC, an Arizona limited liability company

 

   
  By: /s/ Al Spector
  Print Name: Al Spector
  Its: Manager

 

 

TAOS CANTINA LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

 

SEDONA CULINARY CONCEPTS LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

 

SPECTOR OFFICES LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

 

BARRETT REALTY, LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

 

Amended and Restated Sedona Agreement - Signature Page 4
 

 

L’AUBERGE SPA LLC, an Arizona limited liability company

 

 
By: /s/ Al Spector
Print Name: Al Spector
Its: Manager

 

 

L’AUBERGE NEWCO, LLC, a Delaware limited liability company

 

By:

IMH Financial Corporation, a Delaware corporation, its sole member

 

 

  By: /s/ Steven Darak
  Print Name: Steven Darak
  Its: CFO

 

ORCHARDS NEWCO, LLC, an Delaware limited liability company

 

By:

IMH Financial Corporation, a Delaware corporation

 

 

  By: /s/ Steven Darak
  Print Name: Steven Darak
  Its: CFO

 

 

HL NEWCO, LLC, an Delaware limited liability company

 

By:

IMH Financial Corporation, a Delaware corporation, its sole member

 

 

  By: /s/ Steven Darak
  Print Name: Steven Darak
  Its: CFO

 

 

CANYON PORTAL II, L.L.C., an Arizona limited liability company

By:  
  By: Al Spector
  Print Name: Al Spector
  Its:   Manager

 

Amended and Restated Sedona Agreement - Signature Page 5
 

 

The undersigned Escrow Agent hereby (a) accepts the Escrow created by the foregoing Agreement, (b) agrees to act in accordance with the terms of this Agreement, (c) agrees to be the person responsible for closing the transaction within the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986 (the "Code") and filing all necessary information reports, returns and statements (collectively, the "Reports") regarding the transaction required by the Code and, promptly upon the filing of the Reports, transmit copies of the Reports to the Parties, (d) agrees to indemnify and hold harmless the Parties and their respective attorneys and brokers from and against all claims, costs, liabilities, penalties, or expenses resulting from Escrow Agent’s failure to file the Reports, and (e) agrees to deliver to the Parties an insured closing protection letter from Chicago Title Insurance Company within five (5) days after the date hereof.

 

 

 

ESCROW AGENT:

 

CHICAGO TITLE INSURANCE COMPANY

 

 

By: s/DeWayne Huffman
Print Name: DeWayne Huffman
Its: Assistant Vice President and Senior Escrow Manager

 

 

 

 

Amended and Restated Sedona Agreement - Signature Page 6
 

 

SCHEDULE A-i

 

HL Loan Documents

 

1.Construction Loan Agreement between Original Lender and HL Borrower, dated June 11, 2007 (the “HL Loan Agreement”);

 

2.Modification of Construction Loan Agreement between Original Lender, HL Borrower and Spector and Marie Spector, individually and as Trustees for the Trust, and Jacob Gechman, an individual, as Guarantors, dated April 29, 2008 (the “First HL Loan Agreement Modification”);

 

3.Second Modification Construction Loan Agreement between Original Lender, HL Borrower and Guarantors, dated September 23, 2009 (the “Second HL Loan Agreement Modification”);

 

4.Promissory Note Secured by Real Property by HL Borrower as Maker to Original Lender as Payee, dated June 11, 2007 (the “HL Note”);

 

5.Amended and Restated Promissory Note Secured by Real Property by HL Borrower as Maker to Original Lender as Payee, dated April 29, 2008 (the “Restated HL Note”);

 

6.Letter Agreement between Original Lender and HL Borrower, extending the Maturity Date of the Restated HL Note dated June 30, 2009;

 

7.Construction Deed of Trust, Assignment of Rents and Security Agreement from HL Borrower, as Trustor, to Fidelity National Title Insurance Agency of Coconino, Inc., as Trustee, for the benefit of Original Lender, as Beneficiary, dated June 11, 2007, recorded in the Official Records of Yavapai County, Arizona (the “Yavapai Records”) on June 11, 2007 in Book 4513, Page 768 (the “First HL Deed of Trust”);

 

 
 

 

8.Security Agreement (Pledge) by Spector as Trustee for the Trust, and HIDC Investments, L.L.C., as Debtor in favor of Original Lender as Secured Party, dated April 29, 2008 (the “Spector Trust and HIDC HL Security Agreement”);

 

9.Security Agreement (Pledge) by Spector as Trustee for the Trusts, as Grantor, in favor of Original Lender, as Secured Party, dated May 7, 2008 (the “Second Spector Trust HL Security Agreement”);

 

10.Amended and Restated Security Agreement (Pledge) by Spector, individually and as Trustee for the Trust and HIDC Investments, L.L.C., as Debtor, in favor of Original Lender, as Secured Party dated May 28, 2009 (the “Restated Spector Trust/Individual and HIDC HL Security Agreement”);

 

11.Unconditional Loan Guaranty by Spector and Marie Spector, individually and as Trustees for the Trust, and Jacob Gechman, individually, as Guarantor, in favor of Original Lender, dated June 11, 2007 (the “HL Guaranty”);

 

12.Environmental Certification and Indemnity Agreement by Spector and Marie Spector, individually and as Trustees of the Trust, and Jacob Gechman, individually, as Indemnitor, in favor of Original Lender, dated June 11, 2007 (the “HL Environmental Guaranty”);

 

13.Negative Pledge Agreement between Original Lender and Amara Resort, L.L.C. dated April 29, 2008 (the “Amara Negative Pledge Agreement”);

 

14.Negative Pledge Agreement between Original Lender and Canyon Portal II, LLC dated April 29, 2008 (the “Canyon Portal II Negative Pledge Agreement”);

 

2
 

 

15.UCC Financing Statement with HL Borrower, as Debtor, and Original Lender as Secured Party, filed with the Arizona Secretary of State (the “SOS”) on June 20, 2007 in File No. 200714870621 and amended by UCC Financing Statement Amendments (2) filed with the SOS on December 2, 2009 (the “HL Borrower HL SOS UCC”);

 

16.UCC Financing Statement with Spector individually, as Debtor, and Original Lender, as Secured Party, filed with the SOS on May 1, 2008 in File No. 200815378060, as amended by UCC Financing Statement Amendments filed with the SOS on June 3, 2009 and September 1, 2009 (the “First Spector Individual HL SOS UCC”);

 

17.UCC Financing Statement with the Trust, as Debtor, and Original Lender, as Secured Party, filed with the SOS on May 1, 2008 in File No. 200815385309, as amended by UCC Financing Statement Amendment filed with the SOS on June 3, 2009 and UCC Financing Statement Amendments (2) filed with the SOS on September 1, 2009 (collectively, the “Spector Trust HL SOS UCC”);

 

18.UCC Financing Statement with HIDC Investments L.L.C., as Debtor, and Original Lender, as Secured Party, filed with the SOS on May 1, 2008 in File No. 200815378082, as amended by UCC Financing Statement Amendments (2) filed with the SOS on September 1, 2009 (the “HIDC HL SOS UCC”);

 

19.UCC Financing Statement with Spector, as an individual, as Debtor, and Original Lender, as Secured Party, filed with the SOS on June 3, 2009 in File No. 200915824290, as amended by UCC Financing Statement Amendments (2) filed with the SOS on September 1, 2009 (the “Second Spector Individual HL SOS UCC”);

 

20.UCC Financing Statement with Michael Leclere, as an individual, as Debtor and Original Lender as Secured Party, filed with the New York Secretary of State (“NYSOS”) on May 9, 2008 in File No. 418361, as amended by UCC Financing Statement Amendment filed with the NYSOS on August 31, 2009 as File No. 428551 and File No. 428553 and filed on March 16, 2010 in File No. 408193 (the “Leclere Individual HL SOS UCC”);

 

3
 

 

The documents referred to above as items1 through 20, as modified and amended, are referred to as the HL Loan Documents. The HL Loan and HL Loan Documents were assigned by Original Lender to HL Noteholder by the following:

 

21.Allonge to Promissory Note by Original Lender to HL Noteholder dated November 4, 2009 (the “HL Note Allonge”);

 

22.Assignment of Note and Deed of Trust by Original Lender to HL Noteholder, dated November 4, 2009, recorded in the Yavapai Records on November 13, 2009, in Book 4706, Page 680 (the “HL Loan Documents Assignment”);

 

23.UCC Financing Statement Amendment, assigning the First HL Borrower HL SOS UCC, filed with the SOS on December 2, 2009;

 

24.UCC Financing Statement Amendment, assigning the First Spector Individual HL SOS UCC, filed with the SOS on March 16, 2010;

 

25.UCC Financing Statement Amendment, assigning the Spector Trust HL SOS UCC, filed with the SOS on March 16, 2010;

 

26.UCC Financing Statement Amendment, assigning the HIDC HL SOS UCC, filed with the SOS on March 16, 2010;

 

27.UCC Financing Statement Amendment, assigning the Second Spector Individual HL SOS UCC, filed with the SOS on March 16, 2010;

 

28.UCC Financing Statement Amendment, assigning the Leclere Individual HL SOS UCC, filed with the SOS on March 16, 2010.

 

4
 

 

  

 

SCHEDULE A-ii

 

LA Loan Documents

 

  a. Construction Loan Agreement between Original LA Lender and LA Borrower, dated May 7, 2008 (the “LA Loan Agreement”);

 

  b. First Modification of Construction Loan Agreement between LA Borrower, Original Lender and Spector, individually, and as Trustee for the Trust, dated February 1, 2009 (the “First LA Loan Agreement Modification”);

 

  c. Second Modification of Construction Loan Agreement between LA Borrower, Original Lender and Spector, individually, and as Trustee for the Trust, dated September 23, 2009 (the “Second LA Loan Agreement Modification”);

 

  d. Promissory Note by LA Borrower as Maker to Original Lender as Payee, dated May 7, 2008 (the “LA Note”);

 

  e. Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing from LA Borrower, as Trustor, to Transaction Title Insurance Company, as Trustee, for the benefit of Original Lender, as Beneficiary, recorded in the Official Records of Coconino County, Arizona (the “Coconino Records”) on May 9, 2008 in Instrument No. 3485966 dated May 7, 2008 (the “First LA Deed of Trust”);

 

  f. Security Agreement (Pledge) by Spector as Trustee for the Trust, as Grantor, in favor of Original Lender, as Secured Party, dated May 7, 2008 (the “Spector Trust LA Security Agreement”);

 

  g. Security Agreement (Pledge) by Spector, individually as Grantor, in a favor of Original Lender, as Secured Party, dated May 28, 2009 (the “Spector Individual LA Security Agreement”);

 

 

 
 

 

 

 

  h. Security Agreement (Pledge) by Leclere, individually as Grantor, in favor of Original Lender, as secured party, dated May 7, 2008 (the “Leclere LA Security Agreement”);

 

  i. Unconditional Loan Guaranty by Spector, individually and as Trustee for the Trust, as Guarantor, in favor of Original Lender, as Creditor, dated May 7, 2008 (the “LA Guaranty”);

 

  j. Environmental Certification and Indemnity Agreement by Spector, individually and as Trustee of the Trust, in favor of Original Lender, as Lender, dated May 7, 2008 (the “LA Environmental Indemnity”);

 

  k. UCC Financing Statement with Spector individually, as Debtor, and Original Lender, as Secured Party, filed with the Arizona Secretary of State (the “SOS”) on May 1, 2008 in File No. 200815378060, as amended by UCC Financing Statement Amendment filed with the SOS on June 3, 2009 and UCC Amendments (2) filed with the SOS on September 1, 2009 (collectively the “First Spector Individual LA SOS UCC”);

 

  l. UCC Financing Statement with the Trust, as Debtor, and Original Lender, as Secured Party, filed with the SOS on May 1, 2008 in File No. 200815385309, as amended by UCC Financing Statement Amendment filed with the SOS on June 3, 2009 and UCC Financing Statement Amendments (2) filed with the SOS on September 1, 2009 (collectively the “Spector Trust LA SOS UCC”);

 

  m. UCC Financing Statement with LA Borrower, as Debtor, and Original Lender, as Secured Party, filed with the SOS on May 9, 2008 in File No. 200815395618, as amended by UCC Financing Statement Amendment filed with the SOS on December 2, 2008 (collectively the “LA Borrower LA SOS UCC”);

 

2
 

 

  n. UCC Financing Statement with Spector, as an individual, as Debtor, and Original Lender, as Secured Party, filed with the SOS on June 3, 2009 in File No. 200915824290, as amended by UCC Financing Statement Amendments (2) filed with the SOS on September 1, 2009 (collectively, the “Second Spector Individual LA SOS UCC”);

 

  o. UCC Financing Statement with Michael Leclere, as an individual, as Debtor and Original Lender as Secured Party, filed with the New York Secretary of State (“NYSOS”) on May 9, 2008 in File No. 418361, as amended by UCC Financing Statement Amendment filed with the NYSOS on August 31, 2009 as File No. 428551 and File No. 428553 and filed on March 16, 2010 in File No. 408193 (the “Leclere Individual LA SOS UCC”);

 

  p. UCC Financing Statement with LA Borrower, as Debtor, and Original Lender, as Secured Party, filed in the Records on May 16, 2008 as Instrument No. 3486766 (the “LA Borrower LA Recorded UCC”);

 

  q. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing from LA Borrower, as Trustor, to Stewart Title & Trust of Phoenix, Inc., as Trustee, for the benefit of Original Lender, as Beneficiary, dated July 28, 2009, recorded in the Coconino Records on July 29, 2009 in Instrument No. 3533054 (the “Second LA Deed of Trust”).

 

The documents referred to above as items a. through q., were made subject to the lien of the Senior Deed of Trust, as defined in the Subordination Agreement, and were subsequently assigned by Original Lender to LA Noteholder by the following:

 

  r. Allonge to Promissory Note by Original Lender to LA Noteholder dated November 4, 2009 (the “LA Note Allonge”);

 

  s. Assignment of Note and Deed of Trust by Original Lender to LA Noteholder, dated November 4, 2009, with respect to the First LA Deed of Trust, recorded in the Coconino Records on November 13, 2009 in Instrument No. 3544893 (the “First LA Deed of Trust Assignment”);

 

3
 

 

  t. Assignment of the Deed of Trust by Original Lender to NL Noteholder, dated April 25, 2011, with respect to the Second HL Deed of Trust, recorded in the Coconino Records on May 10, 2011 in Instrument No. 3595049 (the “Second LA Deed of Trust Assignment”);

 

  u. UCC Financing Statement Amendment, assigning the First Spector Individual LA SOS UCC, filed with the SOS on March 16, 2010;

 

  v. UCC Financing Statement Amendment, assigning the Spector Trust LA SOS UCC, filed with the SOS on March 16, 2010;

 

  w. UCC Financing Statement Amendment, assigning the LA Borrower LA SOS UCC, filed with the SOS on March 16, 2010;

 

  x. UCC Financing Statement Amendment, assigning the Second Spector Individual LA SOS UCC, filed with the SOS on March 16, 2010;

 

  y. UCC Financing Statement Amendment, assigning the Leclere Individual LA SOS UCC, filed with the SOS on March 16, 2010;

 

  z. UCC Financing Statement Amendment, assigning the LA Borrower LA Recorded UCC, recorded in the Records on March 24, 2010, in Instrument No. 3556918;

 

  aa. Assignment of Deed of Trust by Original Lender to LA Noteholder, dated April 25, 2011, with respect to the Second LA Deed of Trust, recorded in the Coconino Records on May 10, 2011 in Instrument No. 3595049.

 

4
 

 

 

 

 

Schedule 3(d)

 

Pending or Threatened Litigation

 

  1. Carl Romanik and Mary Romanik, as Trustees of the Romanik Trust, Plaintiffs. v. HL LLC, an Arizona limited liability company; IMH Special Asset NT 233, LLC, an Arizona limited liability company, et. al. The Cause No. Is CV2011-80371 and the case is in Yavapal County Superior Court. The Plaintiff is asking for an easement over an area of LaMerra's land that sits at the banks of Oak Creek so that Plaintiff can have access to the Creek.

 

  2. H.E. Graham, who owns tax parcel 408-31-029 which parcel is adjacent to the LaMerra subdivision, has written letters to HL LLC over the last 3 years requesting a 25' wide easement in perpetuity across a portion of the LaMerra property. We have not heard from Mr. Graham in more than a year and to our knowledge he has not filed an action in any court.

 

  3. On October 27, 2012 Jeff Newton fell down the stairs at the house at LaMerra and Is deceased The incident was reported to the insurance carrier (Fireman's Fund) which assigned Claim Number 00512026416 to the incident. Fireman's Fund investigators have found out that the mother of the deceased has gotten copies of reports from the Sedona Fire Department. To our knowledge no actual daim or notice of daim has been filed.

  

 

 
 

 

 

Schedule 3(e)

 

Bankruptcy Proceedings

 

NONE

 

 

 
 

 

 

EXHIBIT B

 

LEGAL DESCRIPTION

 

(LaMerra Property)

 

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF YAVAPAI, STATE OF ARIZONA, AND IS DESCRIBED AS FOLLOWS:

 

PARCEL NO. 1:

 

THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 34, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA;

 

EXCEPT BEGINNING AT A POINT IN THE SOUTHERLY LINE OF SAID LAND, WHICH POINT IS DISTANT 650 FEET EASTERLY ALONG SAID SOUTHERLY LINE FROM THE SOUTHWEST CORNER OF SAID LAND;

 

THENCE WESTERLY ALONG SAID SOUTHERLY LINE TO THE SOUTHWEST CORNER OF SAID LAND;

 

THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID LAND, A DISTANCE OF 670 FEET;

 

THENCE SOUTHEASTERLY IN A DIRECT LINE TO THE POINT OF BEGINNING.

 

PARCEL NO. 2:

 

THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER (BEING LOT 13) OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA.

  

PARCEL NO.3:

 

ALL THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, DESCRIBED AS FOLLOWS:

 

BEGINNING AT THE SOUTH QUARTER CORNER OF SAID SECTION 27, MARKED BY A G.L.O. BRASS CAP;

 

THENCE NORTH 2 DEGREES 37 MINUTES 30 SECONDS WEST, 115.90 FEET TO AN EXISTING FENCE;

 

THENCE NORTH 89 DEGREES 24 MINUTES 50 SECONDS EAST, ALONG SAID FENCE, 204.31 FEET;

 

THENCE SOUTH 2 DEGREES 37 MINUTES 30 SECONDS EAST TO A POINT ON THE SOUTH LINE OF SAID SECTION 27;

 

THENCE SOUTH 89 DEGREES 00 MINUTES WEST, ALONG SAID SECTION LINE TO THE ACTUAL POINT OF BEGINNING.

  

 

 
 

 

PARCEL NO.4:

 

THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, LYING EASTERLY OF A LINE LOCATED 100 FEET WEST OF AND PARALLEL TO SAID EAST LINE OF THE SOUTHWEST QUARTER, AND SOUTH OF A LINE HAVING A COURSE OF NORTH 85 DEGREES 13 MINUTES EAST THROUGH A POINT THAT LIES NORTH 2 DEGREES 37 MINUTES 30 SECONDS WEST, 118.5 FEET FROM THE SOUTH QUARTER CORNER OF SECTION 27 MARKED BY A G.L.O. BRASS CAP.

  

PARCEL NO. 5:

 

ALL THAT PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, LYING SOUTHERLY OF AND CONTIGUOUS TO THE FOLLOWING DESCRIBED BOUNDARY LINE:

 

FROM THE NORTHEAST CORNER OF THE QUIT CLAIM PARCEL OF LAND DESCRIBED AS BOOK 938 OF OFFICIAL RECORDS, PAGE 57, YAVAPAI COUNTY RECORDERS OFFICE, THE TRUE POINT OF BEGINNING, SAID CORNER LYING ON THE EAST-WEST BARBED WIRE FENCE AS SHOWN ON THE RECORD OF SURVEY RECORDED AS BOOK 17 OF LAND SURVEYS AT PAGE 17, AND ALSO ON THE SOUTHERLY LINE OF THE MONTERASTELLI (SIC) BOUNDARY AS SHOWN ON RESULTS OF SURVEY BY PATRICK NEVILLE, RECORDED AS BOOK 16, AT PAGE 100, DATED JULY 14, 1992;

 

THENCE SOUTH 89 DEGREES 53 MINUTES 02 SECONDS EAST, ALONG THE FENCE AND ITS EASTERLY EXTENSION AND ALONG THE SOUTHERLY LINE OF THE MONTERASTELLI BOUNDARY, 791.99 FEET;

 

THENCE SOUTH 41 DEGREES 19 MINUTES 24 SECONDS EAST, 39.09 FEET TO THE SOUTH LINE OF SECTION 27, PER THE ARIZONA ENGINEERING COMPANY RECORD OF SURVEY RECORDED AS BOOK 10 OF RECORDS OF SURVEY, AT PAGE 99;

 

THENCE SOUTH 88 DEGREES 14 MINUTES 32 SECONDS EAST, ALONG THE SOUTH LINE OF SECTION 27, 75.15 FEET;

 

THENCE SOUTH 73 DEGREES 27 MINUTES 42 SECONDS EAST, 55.92 FEET;

 

THENCE NORTH 22 DEGREES 46 MINUTES 34 SECONDS EAST, 11.20 FEET;

 

THENCE NORTH 87 DEGREES 02 MINUTES 45 SECONDS EAST, 21.97 FEET;

 

THENCE SOUTH 81 DEGREES 16 MINUTES 09 SECONDS EAST, 29.96 FEET;

 

THENCE SOUTH 65 DEGREES 43 MINUTES 54 SECONDS EAST, 22.05 FEET TO THE EAST LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 34, WHICH IS THE POINT OF TERMINUS OF THE BOUNDARY LINE;

 

THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS SOUTH 88 DEGREES 14 MINUTES 32 SECONDS EAST, FROM THE SOUTH QUARTER CORNER OF SECTION 27 TO THE SOUTHEAST CORNER OF SECTION 27, ACCORDING TO THE ARIZONA ENGINEERING COMPANY RESULTS OF SURVEY RECORDED AS BOOK 10 OF RECORDS OF SURVEYS, AT PAGE 99, YAVAPAI COUNTY RECORDERS OFFICE.

 

2
 

 

 

PARCEL NO. 6:

 

EASEMENT FOR ROADWAY FOR INGRESS AND EGRESS FOR THE PURPOSE OF TRAVEL AND MAINTENANCE AS CREATED IN BOOK 3833, OF OFFICIAL RECORDS, PAGE 934, BEING 50 FEET WIDE, LYING 30 FEET ON THE WESTERLY AND SOUTHERLY SIDES AND 20 FEET ON THE EASTERLY AND NORTHERLY SIDES OF THE FOLLOWING DESCRIBED PROPERTY:

 

THE CENTERLINE OF AN EXISTING DIRT ROAD IN SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:

 

FROM THE SOUTHWEST CORNER OF SECTION 27;

 

THENCE NORTH 86 DEGREES 13 MINUTES 45 SECONDS EAST, A DISTANCE OF 2448.25 FEET TO A CONCRETE MONUMENT MARKED 1/4 ON THE WEST FACE, WITH AN ALUMINUM CAP MARKED LS 13010, ACCEPTED BY JOHN A. LUCKOW, ARIZONA REGISTERED LAND SURVEYOR, AS THE TRUE LOCATION OF THE SOUTH QUARTER CORNER OF RECORD OF SURVEY DATED FEBRUARY 24, 1990, RECORDED IN BOOK 10 OF LAND SURVEYORS, PAGE 99, YAVAPAI COUNTY RECORDERS OFFICE, WHICH IS IDENTICAL TO THE SOUTHEAST CORNER OF THE PROPERTY AS CONVEYED TO HARRIET KOHLER (ALSO KNOWN AS HARRIET K. SEAMAN) BY INSTRUMENTS RECORDED IN THE OFFICE OF THE RECORDER OF YAVAPAI COUNTY, ARIZONA, IN BOOK 179 OF DEEDS, PAGE 586 AND IN BOOK 357 OF OFFICIAL RECORDS, PAGE 233 AND WHICH IS ALSO IDENTICAL TO THE NORTHEAST CORNER OF PARCEL 4 ABOVE, ACCEPTED AND UTILIZED AS THE QUARTER CORNER BETWEEN SECTIONS 27 AND 34, PRIOR TO THE 1956 GLO DEPENDENT RESURVEY OF SECTION 27 BY WHICH THE QUARTER CORNER BETWEEN SECTIONS 27 AND 35 HAS BEEN MARKED BY A STANDARD GLO BRASS CAPPED PIPE, WHICH IS THE SAME GLO BRASS CAP ESTABLISHING THE SOUTHEAST CORNER OF THE PROPERTY DESCRIBED IN PARCEL 4 ABOVE;

 

THENCE SOUTH 85 DEGREES 13 MINUTES 00 SECONDS WEST, 15.05 FEET, TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION:

 

THENCE NORTH 07 DEGREES 16 MINUTES 03 SECONDS EAST, 55.48 FEET;

 

THENCE NORTH 00 DEGREES 25 MINUTES 35 SECONDS EAST, 201.21 FEET TO THE EAST LINE OF THE KOHLER PARCEL AS DESCRIBED IN WARRANTY DEED RECORDED IN BOOK 179 OF DEEDS, PAGE 586, YAVAPAI COUNTY RECORDERS OFFICE, STATE OF ARIZONA;

 

THENCE NORTH 00 DEGREES 25 MINUTES 35 SECONDS EAST, 283.79 FEET TO THE P.C. OF A CURVE, HAVING A RADIUS OF 215.00 FEET AND A CENTRAL ANGLE OF 18 DEGREES 55 MINUTES 40 SECONDS;

 

THENCE NORTHERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 71.03 FEET, TO THE EAST LINE OF THE KOHLER PARCEL AND THE BEGINNING OF A CURVE, HAVING A RADIUS OF 215.00 FEET AND A CENTRAL ANGLE OF 18 DEGREES 53 MINUTES 55 SECONDS;

 

THENCE NORTHERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 70.92 FEET TO THE PT.;

 

 

3
 

 

THENCE NORTH 37 DEGREES 24 MINUTES 00 SECONDS WEST, 164.52 FEET TO THE P.C. OF A CURVE, HAVING A RADIUS OF 130.00 FEET AND A CENTRAL ANGLE OF 07 DEGREES 11 MINUTES 55 SECONDS;

 

THENCE NORTHWESTERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 16.33 FEET TO THE NORTH LINE OF THE KOHLER PARCEL AND THE BEGINNING OF A CURVE, HAVING A RADIUS OF 130.00 FEET AND A CENTRAL ANGLE OF 32 DEGREES 59 MINUTES 56 SECONDS;

 

THENCE NORTHWESTERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 74.87 FEET TO THE P.T.;

 

THENCE NORTH 77 DEGREES 35 MINUTES 51 SECONDS WEST, 92.01 FEET TO THE P.C. OF A CURVE, HAVING A RADIUS OF 250.00 FEET AND A CENTRAL ANGLE OF 10 DEGREES 44 MINUTES 58 SECONDS;

 

THENCE WESTERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 46.90 FEET TO THE NORTH LINE OF THE KOHLER PARCEL AND THE BEGINNING OF A CURVE, HAV1NG A RADIUS OF 250.00 FEET AND A CENTRAL ANGLE OF 10 DEGREES 51 MINUTES 24 SECONDS;

 

THENCE WESTERLY ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 47.37 FEET TO THE P.T.;

 

THENCE SOUTH 80 DEGREES 47 MINUTES 47 SECONDS WEST, 160.95 FEET;

 

THENCE SOUTH 84 DEGREES 31 MINUTES 30 SECONDS WEST, 60.56 FEET TO THE TERMINUS OF THIS DESCRIPTION AT THE WEST LINE OF THE KOHLER PARCEL, THE NORTHWEST CORNER OF WHICH BEARS NORTH 01 DEGREES 01 MINUTES 44 SECONDS WEST, A DISTANCE OF 116.37 FEET.

  

PARCEL NO. 7:

 

EASEMENT FOR IRRIGATION DITCH PURPOSES AS CREATED IN BOOK 2250, OF OFFICIAL RECORDS, PAGE 382, OVER AND ACROSS THE REAL PROPERTY DESCRIBED BELOW. THE CENTERLINE OF THE EASEMENT IS THE CENTERLINE OF THE EXISTING DITCH AND THE EASEMENT IS OF THE WIDTH REASONABLY NECESSARY FOR THE MAINTENANCE AND OPERATION OF THE DITCH.

 

REAL PROPERTY WHICH EASEMENT CROSSES IS DESCRIBED AS FOLLOWS:

 

THE FOLLOWING DESCRIBED PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH OF RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, TO WIT:

 

BEGINNING AT THE QUARTER CORNER BETWEEN SECTIONS 27 AND 34, ABOVE TOWNSHIP AND RANGE, SAID CORNER BEING MARKED BY A STONE MONUMENT, WHICH WAS ACCEPTED BY JIM LAMPORT, SURVEYOR IN 1928, AND BY OLD SETTLERS FOR MANY YEARS;

 

THENCE FROM SAID POINT NORTH ON THE QUARTER SECTION LINE THROUGH THE CENTER OF SAID SECTION 27, (THIS LINE BEING ASSUMED NORTH FOR THE PURPOSE OF THIS DESCRIPTION) 774.0 FEET TO A STONE MONUMENT;

 

 

4
 

 

THENCE NORTH 73 DEGREES 34 MINUTES WEST, 659.6 FEET TO A STONE MONUMENT;

 

THENCE SOUTH 03 DEGREES 45 MINUTES WEST, 1021.3 FEET TO A STONE MONUMENT ON THE SOUTH LINE OF Said) SECTION 27;

 

THENCE NORTH 85 DEGREES 13 MINUTES EAST, 701.9 FEET ALONG SAID SECTION LINE TO THE POINT OF BEGINNING.

  

PARCEL NO. 8:

 

A NON-EXCLUSIVE EASEMENT FOR ROADWAY AND UTILITY PURPOSES OVER, ACROSS AND UNDER THE FOLLOWING DESCRIBED PARCEL:

 

A PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA;

 

BEGINNING AT A POINT ON THE WEST LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27 BEARING NORTH 01 DEGREES 29 MINUTES 54 SECONDS WEST, A DISTANCE OF 600 FEET FROM THE SOUTH QUARTER CORNER OF SECTION 27 MARKED BY A G.L.O. BRASS CAP;

 

THENCE NORTH 01 DEGREES 29 MINUTES 54 SECONDS WEST ALONG THE WEST LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, A DISTANCE OF 180.05 FEET;

 

THENCE SOUTH 35 DEGREES 58 MINUTES 39 SECONDS EAST, A DISTANCE OF 44.71 FEET;

 

THENCE SOUTH 0 DEGREES 48 MINUTES 45 SECONDS WEST, A DISTANCE OF 143.31 FEET;

 

THENCE SOUTH 88 DEGREES 30 MINUTES 06 SECONDS WEST, A DISTANCE OF 19.54 FEET TO THE PLACE OF BEGINNING.

  

PARCEL NO. 9:

 

A NON-EXCLUSIVE EASEMENT FOR ROADWAY AND UTILITY PURPOSES AS CREATED IN BOOK 938 OF OFFICIAL RECORDS, PAGE 65, OVER, ACROSS AND UNDER THE FOLLOWING DESCRIBED PARCELS:

 

PARCEL A:

 

THE FOLLOWING DESCRIBED PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA;

 

BEGINNING AT A POINT ON THE WEST LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27 BEARING NORTH 01 DEGREES 29 MINUTES 54 SECONDS WEST, A DISTANCE OF 115.84 FEET FROM THE SOUTH QUARTER CORNER OF SECTION 27, MARKED BY A G.L.O. BRASS CAP;

 

THENCE NORTH 01 DEGREES 29 MINUTES 54 SECONDS WEST ALONG THE WEST LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, A DISTANCE OF 484.16 FEET;

 

 

5
 

 

THENCE NORTH 88 DEGREES 30 MINUTES 06 SECONDS EAST, A DISTANCE OF 19.54 FEET;

 

THENCE SOUTH 0 DEGREES 48 MINUTES 45 SECONDS WEST, A DISTANCE OF 484.55 FEET TO THE PLACE OF BEGINNING.

 

PARCEL B:

 

A PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA;

 

BEGINNING AT A POINT ON THE EAST LINE OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 27 BEARING NORTH 01 DEGREES 29 MINUTES 54 SECONDS WEST, A DISTANCE OF 889.73 FEET FROM THE SOUTH QUARTER CORNER OF SECTION 27 MARKED BY A G.L.O. BRASS CAP;

 

THENCE NORTH 73 DEGREES 03 MINUTES 08 SECONDS WEST, A DISTANCE OF 103.00 FEET TO THE TRUE POINT OF BEGINNING;

 

THENCE NORTH 73 DEGREES 03 MINUTES 08 SECONDS WEST, A DISTANCE OF 303.41 FEET. (THE DIRECTION AND LOCATIONS OF THE ABOVE LINE DETERMINED BY STONE MONUMENTS AS CALLED FOR IN THAT CERTAIN DEED OF CORRECTION OF RECORD IN THE OFFICE OF THE COUNTY RECORDER, YAVAPAI COUNTY, ARIZONA, IN BOOK 172 OF DEEDS, PAGE 495 THEREOF);

 

THENCE NORTH 82 DEGREES 32 MINUTES 53 SECONDS EAST, A DISTANCE OF 67.32 FEET;

 

THENCE SOUTH 75 DEGREES 10 MINUTES 23 SECONDS EAST, A DISTANCE OF 195.82 FEET;

 

THENCE SOUTH 35 DEGREES 58 MINUTES 39 SECONDS EAST, A DISTANCE OF 58.16 FEET TO THE PLACE OF BEGINNING.

  

PARCEL NO. 10:

 

A NON-EXCLUSIVE EASEMENT FOR ROADWAY AND PUBLIC UTILITY PURPOSES AS CREATED IN BOOK 1920 OF OFFICIAL RECORDS, PAGE 314, EMBRACING ALL OF THE FOLLOWING DESCRIBED PROPERTY:

 

A PARCEL OF LAND LYING IN THE SOUTHWEST QUARTER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

 

BEGINNING AT THE SOUTH QUARTER CORNER OF SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST;

 

THENCE SOUTH 88 DEGREES 53 MINUTES 57 SECONDS WEST, A DISTANCE OF 612.24 FEET TO THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 27;

 

THENCE NORTH 01 DEGREES 11 MINUTES 29 SECONDS WEST, A DISTANCE OF 946.77 FEET TO THE TRUE POINT OF BEGINNING;

 

 

6
 

 

THENCE SOUTH 85 DEGREES 55 MINUTES 21 SECONDS WEST, A DISTANCE OF 113.99 FEET;

 

THENCE NORTH 24 DEGREES 08 MINUTES 42 SECONDS WEST, A DISTANCE OF 61.87 FEET TO A POINT ON A CURVE HAVING A CENTRAL ANGLE OF 141 DEGREES 20 MINUTES 20 SECONDS, A RADIUS OF 131.79 FEET;

 

THENCE ALONG THE ARC OF SAID CURVE, A DISTANCE OF 50.30 FEET;

 

THENCE SOUTH 24 DEGREES 08 MINUTES 42 SECONDS EAST, A DISTANCE OF 26.91 FEET;

 

THENCE NORTH 85 DEGREES 55 MINUTES 21 SECONDS EAST, A DISTANCE OF 81.55 FEET;

 

THENCE SOUTH 01 DEGREES 11 MINUTES 29 SECONDS EAST, A DISTANCE OF 50.06 FEET TO THE TRUE POINT OF BEGINNING.

 

TOGETHER WITH THE RIGHT TO IMPROVE AND MAINTAIN THE EXISTING ROAD AND TO RECONSTRUCT AND ENLARGE THE ROAD TO UTILIZE ALL OF THE EASEMENT PROPERTY OR ANY PART THEREOF FOR ROADWAY PURPOSES.

  

PARCEL NO. 11:

 

AN EASEMENT APPURTENANT TO PARCELS 1, 2, 3, 4 AND 5 ABOVE, FOR ROADWAY AND PUBLIC UTILITIES CREATED IN BOOK 1920, OF OFFICIAL RECORDS, PAGE 307, OVER THAT PORTION OF THE RED ROCK LOOP ROAD DESCRIBED IN THE ATTACHMENT TO THE INSTRUMENT OF RECORD IN BOOK 915, OF OFFICIAL RECORDS, PAGES 795-803, INCLUSIVE, RECORDS OF YAVAPAI COUNTY, ARIZONA, LYING WITHIN THE EAST ONE-HALF, WEST ONE-HALF, SOUTHEAST QUARTER, SOUTHWEST QUARTER, SECTION 27, TOWNSHIP 17 NORTH, RANGE 5 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, YAVAPAI COUNTY, ARIZONA.

  

EXCEPTING FROM THE ABOVE PARCELS THE FOLLOWING PROPERTY:

Lot 11, THE RETREAT AT OAK CREEK, according to Book 59 of Maps, pages 99 through 104, inclusive, records of Yavapai County, Arizona.

 

AND

 

Lots 2, 9, 10, 12, 13, 14, 17, 18 and 19, LAMERRA, according to Book 61 of Maps, pages 27 through 32, inclusive, records of Yavapai County, Arizona.

 

 

7
 

 

 

 

EXHIBIT F-i

 

LEGAL DESCRIPTION

 

(L’Auberge Property)

 

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF COCONINO,

STATE OF ARIZONA, AND IS DESCRIBED AS FOLLOWS:

 

PARCEL NO. 1:

 

A parcel of land situated in the West half of Section 8, Township 17 North, Range 6 East, of the Gila and Salt River Base and Meridian, Coconino County, Arizona, being more particularly described as follows:

 

COMMENCING at the West quarter corner of said Section 8, as marked by a B.L.M brass capped pipe under drain cover in sidewalk and from which the Southwest corner of said Section 8, as marked by a B.L.M brass capped pipe in cairn, lies South 01 degrees 42 minutes 03 seconds East (basis of bearings for this description), a distance of 2621.04 feet;

 

THENCE from said West quarter corner, North 12 degrees 54 minutes 17 seconds East (North 12 degrees 27 minutes 33 seconds East, record), a distance of 76.90 feet (76.90 feet record), to a point on the Southeasterly right of way line of Arizona State Highway 89-A;

 

THENCE Northeasterly along said Southeasterly right of way line being a non-tangent curve, concave to the Southeast, having a radius of 2150.00 feet (2,150.00 feet, record), a chord bearing of North 23 degrees 04 minutes 02 seconds East and a central angle of 05 degrees 24 minutes 36 seconds (05 degrees 24 minutes 18 seconds, record), an arc distance of 203.00 feet (203.00 feet, record), to a concrete nail with brass tag stamped “LS14184” set at the position of a previously set cotton picker spindle with tag stamped “LS14184”;

 

THENCE continuing Northeasterly along said Southeasterly right of way line, being a curve, concave to the Southeast, having a radius of 2150.00 feet (2,150.00 feet record), a chord bearing of North 26 degrees 36 minutes 58 seconds East, a central angle of 01 degrees 41 minutes 17 seconds (01 degrees 41 minutes 39 seconds, record), an arc distance of 63.35 feet (63.57 feet, record), to a concrete nail with brass tag stamped “LS14184” set at the position of a previously set chiseled “+” in concrete;

 

THENCE departing said Southeasterly right of way line of Arizona State Highway 89-A, South 89 degrees 51 minutes 31 seconds East (North 89 degrees 42 minutes 07 seconds East, record), a distance of 3.74 feet to a point on the Northeasterly line of that certain tract of land acquired by the City of Sedona in December 2005 and described in Document No. 2005-3361777 of the Coconino County Recorder’s office in Coconino county, Arizona;

 

THENCE along the North line of the Orchards/L’Auberge parcel, South 89 degrees 51 minutes 31 seconds East (North 89 degrees 42 minutes 07 seconds East, record), a distance of 212.10 feet to a ½” rebar with cap stamped “LS14184” (previously set);

 

THENCE along the Northerly line of the Orchards/L’Auberge parcel, South 40 degrees 28 minutes 17 seconds East (South 41 degrees 45 minutes 00 seconds East, record), a distance of 62.25 feet to the POINT OF BEGINNING;

 

 

 
 

 

THENCE South 40 degrees 28 minutes 17 seconds East (South 41 degrees 45 minutes 00 seconds East, record), a distance of 47.00 feet to a ½” rebar with tag stamped “LS14184” (previously set);

 

THENCE North 38 degrees 57 minutes 49 seconds East, (North 38 degrees 15 minutes 00 seconds East record), a distance of 150.75 feet (152.00 feet record) to a ½” rebar with tag stamped “LS14184” (previously set).

 

THENCE South 50 degrees 57 minutes 03 seconds East, (South 51 degrees 45 minutes 00 seconds East record), a distance of 82.00 feet (82.00 feet record) to a ½” rebar with tag stamped “LS14184” (previously set);

 

THENCE North 57 degrees 27 minutes 57 seconds East (North 56 degrees 40 minutes 00 seconds East record), a distance of 26.55 feet (26.5 feet record) to a ½” rebar with tag stamped “LS14184” (previously set);

 

THENCE South 32 degrees 32 minutes 03 seconds East (South 33 degrees 20 minutes 00 seconds East record), a distance of 523.60 feet (542.50 feet record) to a point in Oak Creek that lies on the Northwesterly boundary of the “Brewer Tract”, described in Docket 510, page 496, of the Coconino County Recorder’s Office and from which a ½” rebar with tag stamped “LS14184” previously set as a witness corner lies, North 32 degrees 32 minutes 03 seconds West, a distance of 100.00 feet;

 

THENCE South 51 degrees 44 minutes 33 seconds West (no record) a distance of 6.59 feet (no record) to the Westerly corner of said “Brewer Tract” being a portion in Oak Creek;

 

THENCE South 54 degrees 01 minutes 27 seconds East (no record), a distance of 19.52 feet (no record) along the Southwesterly boundary of said “Brewer Tract” to a point in Oak Creek;

 

THENCE South 52 degrees 31 minutes 27 seconds West (South 51 degrees 43 minutes 30 seconds West, record), a distance of 11.99 feet (11.40 feet record) to a point in Oak Creek;

 

THENCE South 69 degrees 02 minutes 57 seconds West (South 68 degrees 15 minutes 00 seconds West record), a distance of 166.54 feet (166.54 feet) to a point in Oak Creek;

 

THENCE South 48 degrees 22 minutes 03 seconds East (South 49 degrees 10 minutes 00 seconds East, record), a distance of 60.39 feet (60.40 feet record), to a ½” rebar with tag stamped “PE2924” (previously set);

 

THENCE South 63 degrees 20 minutes 02 seconds West, (South 62 degrees 02 minutes 45 seconds West, record), a distance of 835.28 feet (832.38 feet record) to a point in Oak Creek that is on the West line of said Section 8 and lies South 01 degrees 42 minutes 03 seconds East, a distance of 624.60 feet from said West quarter corner of Section 8;

 

THENCE North 01 degrees 42 minutes 03 seconds West (North 02 degrees 30 minutes 00 seconds West, record), a distance of 447.60 feet (447.60 feet record) along said West line of Section 8 to a ½” rebar with tag stamped “LS14184” (previously set);

 

THENCE North 38 degrees 37 minutes 57 seconds East (North 37 degrees 50 minutes 00 seconds East, record), a distance of 207.55 feet to a ½” rebar with tag stamped “LS14184” (previously set);

 

 

2
 

 

THENCE North 38 degrees 09 minutes 30 seconds East (North 37 degrees 50 minutes 00 seconds East, record), a distance of 109.23 feet to a ½” rebar with no identification (previously found):

 

THENCE North 49 degrees 44 minutes 02 seconds East, a distance of 94.50 feet;

 

THENCE North 37 degrees 42 minutes 35 seconds East, a distance of 174.72 feet to the POINT OF BEGINNING.

 

EXCEPTING THEREFROM the following described property:

 

A parcel of land being a portion of “Parcel 1B” as said “Parcel 1B” is shown and described on that certain ALTA/ACSM Land Title Survey map recorded as instrument number 3490268 in the Official Records of Coconino County, said parcel being situated in the West half of Section 8, Township 17 North, Range 6 East of the Gila and Salt River Base and Meridian in Coconino County, Arizona, and being more particularly described as follows:

 

COMMENCING at the West quarter corner of said Section 8, as marked by a G.L.O. brass capped pipe under drain cover in sidewalk and from which the Southwest corner of said Section 8, as marked by a B.L.M brass capped pipe in cairn, lies South 01°42’03” East (basis of bearings for this description), a distance of 2621.04 feet;

 

Thence from said West quarter corner, along the West line of the Southwest quarter of said Section 8, South 01°42’03” East, a distance of 624.60 feet to the Southwest corner of said “Parcel 1B”;

 

Thence along the Southerly boundary of said “Parcel 1B”, North 63°20’02” East a distance of 579.51 feet to the POINT OF BEGINNING;

 

Thence continuing along said Southerly boundary of “Parcel 1B”, North 63°20’02” East a distance of 255.77 feet;

 

Thence continuing along said Southerly boundary of “Parcel 1B”, North 48°22’03” West a distance of 60.39 feet;

 

Thence continuing along said Southerly boundary of “Parcel 1B”, North 69°02’57” East a distance of 32.29 feet to the most Northerly corner of the Weckerly parcel as described in Docket 1525, pages 007-009 of the Coconino County Recorder’s Office;

 

Thence along a prolongation of the Northeasterly boundary of said Weckerly parcel, North 54°01’29” West a distance of 23.88 feet, more or less, to the centerline of Oak Creek as it may exist from time to time in the future;

 

Thence along said centerline of Oak Creek, as it may exist from time to time in the future, an approximate bearing of South 65°34’01” West a distance of 111.83 feet, more or less;

 

Thence continuing along said centerline of Oak Creek, as it may exist from time to time in the future, an approximate bearing of South 69°31’14” West a distance of 163.52 feet, more or less, to the intersection of said centerline of Oak Creek with the Northwesterly prolongation of the Southwesterly boundary of the Miller parcel as described in Docket 1478, pages 378 & 378A of the Coconino County Recorder’s Office;

 

Thence in a reversed direction of said Northwesterly prolongation of the Southwesterly boundary of the Miller parcel, South 38°15’58” East a distance of 98.08 feet, more or less, to the POINT OF BEGINNING.

 

 

3
 

 

PARCEL NO. 2:

 

An easement for ingress, egress and public utilities created by instrument recorded December 22, 1982, in Docket 911, page 206, records of Coconino County, Arizona, more particularly described as follows:

 

A strip of land 33.00 feet wide situated in the Southeast quarter of Section 7, Township 17 North, Range 6 East, of the Gila and Salt River Base and Meridian, Coconino County, Arizona, being more particularly defined as lying 16.50 feet on each side of the following described centerline:

 

COMMENCING at the East quarter corner of said Section 7, as marked by a GLO brass capped pipe under drain cover in sidewalk and from which the Southeast corner of said Section 7, as marked by a B.L.M. brass capped pipe, lies South 01 degrees 42 minutes 03 seconds East (basis of bearings for this description), a distance of 2621.04 feet;

 

THENCE South 01 degrees 42 minutes 03 seconds East (South 02 degrees 30 minutes 00 seconds East, recorded), a distance of 261.40 feet (261.4 feet record) along the East line of said Southeast quarter of Section 7 to the POINT OF BEGINNING of this center line (side lines of strip of land begin on said East line);

 

THENCE South 28 degrees 37 minutes 57 seconds West (South 27 degrees 50 minutes 00 seconds West record), a distance of 500.20 feet (500.2 feet record);

 

THENCE South 37 degrees 53 minutes 57 seconds West (South 37 degrees 06 minutes 00 seconds West, record), a distance of 330.00 feet (330.00 feet record) to the terminus of center line:

 

EXCEPT therefrom all that portion thereof lying within the right of way of Arizona Highway 89-A;

 

PARCEL NO. 3:

 

A perpetual, non-exclusive easement for ingress and egress as set forth in that certain easement agreement recorded April 25, 2002 in instrument number 2002-3138455 and re-recorded July 18, 2005 in instrument number 2005-3332653 of Official Records, Coconino County, Arizona.

 

PARCEL NO. 4:

 

A parcel of land being a portion of the “Pacini Tract” described in Parcel II in Docket 1711, page 863 and 864 of the Coconino County Recorders Office and situated in the West half of Section 8, Township 17 North, Range 6 East, of the Gila and Salt River Base and Meridian, Coconino County, Arizona, said parcel being more particularly described as follows:

 

COMMENCING at the West quarter corner of said Section 8, as marked by a B.L.M brass capped pipe under drain cover in sidewalk and from which the Southwest corner of said Section 8, as marked by a B.L.M brass capped pipe in cairn, lies South 01 degrees 42 minutes 03 seconds East (basis of bearings for this description), a distance of 2621.04 feet;

 

 

4
 

 

THENCE from said West quarter corner, North 21 degrees 27 minutes 04 seconds East, a distance of 342.00 feet (North 20 degrees 32 minutes East, a distance of 342 feet, record) to a ½” rebar with tag stamped “LS14184” set at the position of a previously set chiseled “+” in concrete (previously set) on the Southeasterly right of way line of Arizona Highway 89-A;

 

THENCE departing said Southeasterly right of way line of Arizona Highway 89-A South 89 degrees 51 minutes 31 seconds East, a distance of 215.83 feet (North 89 degrees 10 minutes East, a distance of 217.50 feet record), to a ½” rebar with plastic cap stamped “LS14184” (found);

 

THENCE South 40 degrees 28 minutes 17 seconds East, a distance of 109.25 feet (South 41 degrees 45 minutes East, a distance of 110.77 feet record) to a ½” rebar with plastic cap stamped “LS14184” (previously set);

 

THENCE North 38 degrees 57 minutes 49 seconds East, a distance of 150.75 feet (North 38 degrees 15 minutes East, a distance of 152.0 feet record), to a ½” rebar with tag stamped “LS14184” (previously set) at a corner of said “Pacini Tract”;

 

THENCE along the boundary of said “Pacini Tract” South 50 degrees 57 minutes 03 seconds East, a distance of 82.00 feet (same as record) to a ½” rebar with tag stamped “LS14184” (found) at a corner thereof;

 

THENCE continuing along the boundary of said “Pacini Tract” North 57 degrees 27 minutes 57 seconds East, a distance of 26.55 feet (same as record) to a ½” rebar with tag stamped “LS14184” (found) at a corner thereof;

 

THENCE continuing along the boundary of said “Pacini Tract”, South 32 degrees 32 minutes 03 seconds East, a distance of 5.00 feet to the POINT OF BEGINNING;

 

THENCE North 57 degrees 27 minutes 57 seconds East, a distance of 58.00 feet to a ½” rebar with tag stamped “LS14184”;

 

THENCE North 89 degrees 27 minutes 57 seconds East, a distance of 35.39 feet to a ½” rebar with tag stamped “LS14184”;

 

THENCE South 00 degrees 32 minutes 03 seconds East, a distance of 163.25 feet to a ½” rebar with tag stamped “LS14184”;

 

THENCE South 32 degrees 32 minutes 03 seconds East, a distance of 215.13 feet to a ½” rebar with tag stamped “LS14184”;

 

THENCE South 31 degrees 56 minutes 49 seconds East, a distance of 146.28 feet to a point on the Northwesterly boundary of the “Brewer Tract” as described in Docket 510, page 496 of the Coconino County Recorder’s Office and the Southwest corner of the said “Pacini Tract” and from which a ½” rebar with brass tag stamped “LS14184” (previously set as a witness corner) bears North 32 degrees 32 minutes 03 seconds West, a distance of 100.00 feet;

 

THENCE along the Westerly boundary of the said “Pacini Tract”, North 32 degrees 32 minutes 03 seconds West, a distance of 518.60 feet to the POINT OF BEGINNING.

 

 

5
 

 

PARCEL NO. 5:

 

INTENTIONALLY DELETED.

 

6
 

 

 

 

 

EXHIBIT F-ii

 

LEGAL DESCRIPTION

 

(Orchards Inn Property)

 

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF COCONINO,

STATE OF ARIZONA, AND IS DESCRIBED AS FOLLOWS:

 

 

PARCEL NO. 1:

 

A parcel of land situated in the West half of Section 8, Township 17 North, Range 6 East, of the Gila and Salt River Base and Meridian, Coconino County, Arizona, being more particularly described as follows:

 

COMMENCING at the West quarter corner of said Section 8, as marked by a B.L.M brass capped pipe under drain cover in sidewalk and from which the Southwest corner of said Section 8, as marked by a B.L.M brass capped pipe in cairn, lies South 01 degrees 42 minutes 03 seconds East (basis of bearings for this description), a distance of 2621.04 feet;

 

THENCE from said West quarter corner, North 12 degrees 54 minutes 17 seconds East (North 12 degrees 27 minutes 33 seconds East, record), a distance of 76.90 feet (76.90 feet, record) to a point on the Southeasterly right-of-way line of Arizona State Highway 89-A;

 

THENCE Northeasterly along said Southeasterly right of way line being a non-tangent curve, concave to the Southeast, having a radius of 2150.00 feet (2150.00 feet record)., a chord being of North 23 degrees 04 minutes 02 seconds East and a central angle of 05 degrees 24 minutes 36 seconds (05 degrees 24 minutes 18 seconds, record), an arc distance of 203.00 feet (203.00 feet record), to a concrete nail with brass tag stamped “LS14184” set at the position of a previously set cotton picker spindle with tag stamped “LS14184”;

 

THENCE departing said Southeasterly right of way line of Arizona State Highway 89A, South 65 degrees 25 minutes 03 seconds East, a distance of 11.73 feet to the POINT OF BEGINNING, which lies on the Southeasterly line of that certain tract of land acquired by the City of Sedona in December 2005 and described in Document NO. 2005-3361777 of the Coconino County Recorder’s Office, Coconino County, Arizona;

 

THENCE along said Southeasterly line, North 24 degrees 46 minutes 32 seconds East, a distance of 23.47 feet;

 

THENCE continuing along said Southeasterly line, North 21 degrees 21 minutes 48 seconds East, a distance of 3.63 feet;

 

THENCE continuing along said Southeasterly line, North 20 degrees 52 minutes 26 seconds West, a distance of 8.33 feet;

 

THENCE continuing along said Southeasterly line, North 69 degrees 07 minutes 34 seconds East, a distance of 1.00 feet;

 

THENCE continuing along said Southeasterly line, North 19 degrees 27 minutes 50 seconds West, a distance of 6.81 feet;

 

 

7
 

 

THENCE continuing along said Southeasterly line, North 26 degrees 18 minutes 08 seconds East, a distance of 19.54 feet;

 

THENCE continuing along said Southeasterly line, South 62 degrees 51 minutes 12 seconds East, a distance of 4.07 feet;

 

THENCE continuing along said Southeasterly line, North 23 degrees 53 minutes 25 seconds East, a distance of 6.93 feet;

 

THENCE continuing along said Southeasterly line of that tract of land acquired by the City of Sedona in December 2005, North 62 degrees 35 minutes 35 seconds West, a distance of 0.55 feet to the North line of the Orchards/L’Auberge parcel;

 

THENCE along said North line of the Orchards/L’Auberge parcel, South 89 degrees 51 minutes 31 seconds East (North 89 degrees 42 minutes 07 seconds East, record), a distance of 212.10 feet to a ½” rebar with cap stamped “LS14184” (previously set);

 

THENCE South 40 degrees 28 minutes 17 seconds East, (South 41 degrees 45 minutes 00 seconds East, record), a distance of 62.25 feet;

 

THENCE South 37 degrees 42 minutes 35 seconds West, a distance of 174.72 feet; THENCE South 49 degrees 44 minutes 02 seconds West, a distance of 94.50 feet to a ½” rebar with no identification (previously found);

 

THENCE North 31 degrees 49 minutes 11 seconds West (North 32 degrees 21 minutes 20 seconds West, record), a distance of 114.47 feet (113.94 feet record) to a ½” rebar with cap stamped “LS 14184” (previously set);

 

THENCE North 22 degrees 35 minutes 10 seconds East (North 24 degrees 24 minutes 07 seconds East, record), a distance of 66.04 feet (65.00 feet, record) to a concrete nail with brass tag stamped “LS14184”, previously set at the position of a previously set chiseled “+” in concrete;

 

THENCE North 65 degrees 25 minutes 03 seconds West, (North 65 degrees 34 minutes 02 seconds West, record), a distance of 65.96 feet to the POINT OF BEGINNING.

 

PARCEL NO. 2:

 

INTENTIONALLY DELETED.

 

PARCEL NO. 3:

 

An easement for overhead canopies and other purposes by or pursuant to that certain Special Warranty Deed (In Lieu of Condemnation) recorded December 27, 2005 in Document No. 3361777, Official Records of Coconino County, Arizona.

 

 

8
 

 

 

 

Exhibit F-iii

 

Description of Delivery and Installation of Pre-Fabricated Cottage

 

Schulte Manufacturing has one unit of the pre-fabricated cottages at its manufacturing fadlity in Avondale, Arizona. The unit consists of two parts and is about 600 sq. ft. Schulte has it in the storage yard. The unit will need to be assembled on site and also there will need to be built for it the necessary utility connections and base on which to place the cottage. There are no current arrangements to either take the unit or any plans where to put it.

 

 

 
 

 

Exhibit Gi

 

Housing Units 414, 415, 434 & 435

280 N. Highway 89A

 

LEASE

 

SEDONA, ARIZONA

  

Landlord: Canyon Portal II, L.L.C.

 

Tenant: L'Auberge Orchards LLC

 

Date: April 1, 2012

 

 
 

 

TABLE OF CONTENTS

 

 

SECTION 1 – FUNDAMENTAL LEASE PROVISIONS 1
     
SECTION 2 – PREMISES 2
     
SECTION 3 – GENERAL PROVISIONS 2
3.1 No Option 2
3.2 Approval of Financial Statement 3
3.3 No Co-Tenancy Requirement 3
3.4 Name Change 3
     
SECTION 4 - LEASE TERMS 3
4.1 Term 3
4.2 Delay in Commencement 3
4.3 Holding Over 3
4.4 Abandonment 3
4.5 Surrender of Premises 4
4.6 Extension of Term 4
     
SECTION 5 – RENT, SECURITY DEPOSIT 4
5.1 Rent 4
5.2 Security Deposit 5
5.3 (Deleted) 5
5.4 Additional Rent 5
     
SECTION 6 – NO COUNTERCLAIM OR ABATEMENT OF RENT 5
6.1 No Notice 5
6.2 No conditional Payment 5
     
SECTION 7 – COMMON AREAS 6
7.1 Use of Common Areas 6
7.2 Parking Policy 6
7.3 Parking Charges 6
     
SECTION 8 – USE OF PREMISES 6
8.1 Use 6
8.2 Prohibited Conduct 6
8.3 Prescribed Conduct 7
8.4 Operation of Premises – Intentionally Deleted 7
     
SECTION 9 – TENANT’S CONSTRUCTION FO IMPROVEMENTS 7
9.1 Tenant’s Obligation 7
9.2 Intentionally Deleted 8
9.3 Written Approval 8
9.4 Trade Fixtures 8

 

 

 

 
 

 

 

SECTION 10 – TENANT OBLIGATIONS 8
10.1 Payment by Tenant 8
10.2 Payment by Landlord 8
10.3 Proof of Payment 9
10.4 Personal Property Taxes 9
10.5 Premises Utilities 9
10.6 Merchants Association 9
     
SECTION 11 – COMMON AREA MAINTENANCE. – Intentionally Deleted 9
     
SECTION 12 – MAINTENANCE AND REPAIRS BY TENANT 9
12.1 Tenant’s Obligation 9
12.2 Prohibited Acts 9
12.3 Rights of Landlord 10
     
SECTION 13 – REPAIR BY LANDLORD 10
13.1 Repair by Landlord 10
13.2 Hazardous Materials 10
     
SECTION 14 – LIENS 11
14.1 No Liens 11
14.2 Tenant’s Obligations 11
14.3 Removal of Liens 11
     
SECTION 15 – INSURANCE 12
15.1 Project Insurance 12
15.2 Tenant’s Property 12
15.3 Tenant’s Operations 12
15.4 Certificate of Insurance 13
15.5 Insurance Companies 13
15.6 Failure to Procure Insurance 13
15.7 Repair 13
     
SECTION 16 – DAMAGE OR DESTRUCTION 14
16.1 Tenant Obligations 14
16.2 Lease Termination 14
     
SECTION 17 – EASEMENTS 14
     
SECTION 18 – INDEMNIFICATION 15
18.1 By Tenant 15
18.2 By Landlord 15
18.3 Waiver of Claims 15

 

  

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SECTION 19 – ASSIGNMENT AND SUBLETTING 16
19.1 Landlord Consent 16
19.2 In Writing 16
19.3 Transfer Limitation 16
19.4 Deleted 17
     
SECTION 20 – SUBJECT TO MASTER LEASE 17
     
SECTION 21 – DEFAULTS BY TENANT 17
21.1 Event of Default 17
21.2 Re-Enter of Premises 18
21.3 Lease Termination 18
21.4 Reletting 18
21.5 Survival of Liability 19
21.6 Cumulative Remedies 19
21.7 Sublessee Defaults 20
21.8 Repetitive Rent Payment Defaults 20
21.9 Cure Period 20
21.10 Late Charges 20
     
SECTION 22 – CONDEMNATION 21
   
SECTION 23 – TENANT’S WAIVER OF STATUTORY RIGHTS 21
   
SECTION 24 – WAIVER OF PERFORMANCE 21
   
SECTION 25 – REMEDIES CUMULATIVE 21
   
SECTION 26 – CONVEYANCE BY LANDLORD 22
   
SECTION 27 – NO PERSONAL LIABILITY TO LANDLORD 22
   
SECTION 28 – ATTORNEYS’ FEES 22
   
SECTION 29 – PROVISIONS SUBJECT TO APPLICABLE LAW 22
   
SECTION 30 – RIGHT TO CURE TENANT’S DEFAULTS 22
   
SECTION 31 – NOTICES 23
   
SECTION 32 – SIGNS 23
   
SECTION 33 – LANDLORD’S INSPECTIONS 23
33.1 Inspection 23
33.2 Presenting for Sale or Lease 24

 

  

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SECTION 34 – ESTOPPEL CERTIFICATE 24
   
SECTION 35 – WAIVER OF TRIAL BY JURY 24
   
SECTION 36 – RECORDING 25
   
SECTION 37 – SUBORDINATION 25
   
SECTION 38 – MISCELLANEOUS 25
38.1 Definition of Tenant 25
38.2 Tenant 25
38.3 Gender and Number 25
38.4 Modifications and Waivers 26
38.5 Implied Warranties 26
38.6 Binding Effect 26
38.7 Severability 26
38.8 Governing Law and Jurisdiction 26
38.9 Entire Agreement 26
38.10 Time is of the Essence 27
38.11 Brokers 27

 

 

iv
 

 

CANYON PORTAL II, L.L.C.

LEASE

 

This Lease is made between Landlord and Tenant (defined below) in accordance with the Second Amended Development Agreement recorded as Document 3555971 in the Official Records of Coconino County, Arizona on March 15, 2010 ("DA"), and the Second Amended Land Use Restriction Agreement recorded as Document 3555972 in the official Records of Coconino County, Arizona on March 15, 2010 (LURA"). Landlord hereby expressly consents to and acknowledges the use of Units 414, 415, 434, 435 as Affordable Housing Units in accordance with the terms of conditions of the DA and LURA.

 

Further, Tenant has previously constructed and has been using Units 414, 415, 434 and 435 for Affordable Housing since May 31, 2010. Landlord and Tenant desire to execute this Lease in order to memorialize the obligations of Tenant under the LURA and DA, and to commit Landlord to the use of Units 414, 415, 434 and 435 for the term of the LURA and DA.

 

SECTION 1 - FUNDAMENTAL LEASE PROVISIONS.

 

Landlord: Canyon Portal II, L.L.C., an Arizona limited liability company
   
Tenant: L'Auberge Orchards LLC, an Arizona limited liability company, which is also a party to the DA and LURA defined above, and is obligated to lease these units upon the terms and conditions of the DA and LURA and this Lease.
   
Trade Name: N/A

 

Lease Term: Commencement Date: April 1, 2012
     
  Termination Date: March 31, 2032
     
  Rent Commencement Date: April 1, 2012

 

Premises: 4 hotel room units known as 414, 415, 434 and 435 further reflected on Exhibit A.

 

Minimum Monthly Base Rental: Tenant shall pay to Landlord Ten Thousand Dollars ($10,000.00) on April 1, 2012. Beginning May 1, 2012 the Minimum Monthly Base Rental shall be Two Thousand Dollars ($2,000.00) for the period of May 1, 2012 through December 31, 2012. Thereafter, Rent shall be adjusted in accordance with Paragraph 5.1B.

 

Security Deposit:     None Required

 

 
 

 

Address of Landlord: Canyon Portal II, L.L.C.
  6900 E. Camelback Road, #915
  Scottsdale, AZ 85251
  Telephone: (480) 941-0221
  Fax: (480) 990-9093
   
Address of Tenant: L'Auberge Orchards, LLC
  301 L'Auberge Lane
  Sedona, AZ 86336
  Telephone: (928) 204-4313
  Fax: (928) 282-1064
   
Only Permitted Uses: Construction of two (2) efficiency apartments to be used as rental housing in accordance with the LURA and DA.
   
Guarantors: None

 

The foregoing Fundamental Lease Provisions are an integral part of this Lease, and each reference in the body of the Lease to any Fundamental Lease Provision shall be construed to incorporate all of the terms set forth above with respect to such Provisions.

 

SECTION 2 - PREMISES.

 

Subject to the conditions set forth herein, Landlord hereby leases to Tenant the Premises. A site plan showing the boundaries of the Premises and its relative location within a larger commercial development comprised of four elements including the Trading Post Shops, Canyon Portal Shops, North Retail Building, and Orchards (the "Project") is attached hereto as Exhibit A. Tenant's acceptance of the Premises and Agreement to the terms of this Lease are not conditioned upon any representation by Landlord of the number of square feet in the Premises. TENANT ACKNOWLEDGES THAT IT HAS INSPECTED THE PREMISES, IS FAMILIAR WITH ITS CONDITION AND ACCEPTS THE PREMISES IN ITS PRESENT CONDITION "AS IS." EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD HAS MADE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PREMISES OR THE PROJECT.

 

SECTION 3 - GENERAL PROVISIONS.

 

3.1           No Option. The submission of this Lease by Landlord, its agent or representative for examination or execution by Tenant does not constitute an option or offer to lease the Premises upon the terms and conditions contained herein or a reservation of the Premises in favor of Tenant, it being intended hereby that this Lease shall become binding upon Landlord only upon Landlord's delivery to Tenant of a fully executed counterpart hereof.

 

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3.2           Approval of Financial Statement. This Lease is subject to Landlord's and Landlord's Lender's approval of a current financial statement of Tenant. Tenant agrees to execute any and all documents Landlord's Lender may require and provide Landlord and Landlord's Lender with credit and financial information as requested.

 

3.3           No Co-Tenancy Requirement. Landlord reserves the right to effect such tenancies in the Project as Landlord, in the exercise of its sole business judgment, shall determine to best promote the interest of the Project. Tenant is not relying on the fact, nor does Landlord represent, that any specific tenant or kind of tenant or number of tenants shall, during the term of this lease, occupy any space in the Project.

 

3.4           Name Change. Landlord reserves the right to change the name of the Project from time to time during the term of this Lease.

 

SECTION 4 - LEASE TERM

 

4.1           Term. The term of this Lease (herein called the "Lease Term" or the "Term") shall commence on the Commencement Date unless the Term is terminated sooner or extended as hereinafter provided.

 

4.2           Delay in Commencement. If Landlord, for any reason whatsoever, cannot deliver possession of the Premises to Tenant at the commencement of the Lease Term, this Lease shall not be void or voidable, nor shall Landlord be liable for any loss or damage resulting therefrom. In the event of a delay in possession; however, there shall be a proportionate reduction of rent covering the period between the commencement of the Lease Term and the time when Landlord can deliver possession of the Premises. Notwithstanding the foregoing, no delay caused by the action or inaction of Tenant or Tenant's agents shall result in a reduction of rent.

 

4.3           Holding Over. If Tenant, upon expiration or termination of this Lease, either by lapse of time or otherwise, remains in possession of the Premises with Landlord's written consent, but without a new lease reduced to writing and duly executed, Tenant shall be deemed to be occupying the Premises as a tenant from month to month, subject to all covenants, conditions and provisions of this Lease. If Tenant remains in possession without Landlord's written consent, Tenant shall be deemed to be in wrongful hold over and shall be subject to all the rights and remedies provided to Landlord under this Lease and by law, including but not limited to forcible entry and detainer actions or other eviction processes. During any hold over period, whether with consent or wrongful, the monthly rent shall be two hundred percent (200%) of Tenant's monthly rent payable during the last month of the Term of this Lease.

 

4.4           Abandonment. If Tenant, prior to the expiration of this Lease, relinquishes possession of the Premises without Landlord's written consent, such relinquishment shall be deemed to be an abandonment of the Premises and an Event of Default under this Lease.

 

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4.5          Surrender of Premises. Upon any termination of this Lease for any reason, Tenant shall immediately surrender possession of the Premises to Landlord in good and tenantable repair, reasonable wear and tear excepted, and shall surrender all keys and all copies of such keys for the Premises to Landlord at the place then fixed for the payment of rent or other agreed upon location.

 

4.6          Extension of Term. None

 

SECTION 5 - RENT. SECURITY DEPOSIT.

 

5.1          Rent.

 

A.           Tenant shall pay to Landlord the Minimum Annual Base Rental set forth in Section 1 of this Lease in twelve (12) equal monthly installments during each Lease Year, in advance, on the first day of each calendar month. The Minimum Annual Base Rental and Additional Charges hereinafter provided for shall be paid in lawful money of the United States to Landlord at its address or at such other place as Landlord may from time to time designate in writing.

 

B.           The rent provided for in this Section 5.1 shall be subject to adjustment as described herein commencing January 1, 2013. The base for computing the adjustment is the Consumers' Price Index for All Urban Consumers, United States Cities Average published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), which is in effect on the date of the commencement of the first day of the previous Lease year ("Beginning Index"). For example, the adjustment for year two would be based on the Index for the first day of Lease year one. The Index published most immediately preceding the Adjustment Date in question ("Extension Index") is to be used in determining the amount of the adjustment. If the Extension Index has increased over the Beginning Index, the base monthly rent for the following year shall be set by multiplying the base monthly rent for the previous year, e.g., for the 12th Lease month, by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. However, the adjustment to the rent shall be no less than three percent (3%) compounded per annum of the base monthly rent provided in this Lease. As an example, if year one monthly rent is $1,000.00 and the three percent (3%) is applicable each year, then monthly rent for years two through five would be: year two $1,030.00; year three - $1,060.90; year four - $1,092.73; and year five $1,125.52.

 

If the Index is changed so that the base year differs from that in effect when the Term commences, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the Term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.

 

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C.           Monthly rent for the first month shall be paid on the date the Term commences. Monthly rent for any partial month shall be prorated at the rate of one-thirtieth (1/30) of the monthly rent per day.

 

D.           All rental amounts are "net rent to Landlord. All Additional Charges (as described in this Lease) shall be deemed rent whether or not expressly designated as such, and shall be paid in addition to the Minimum Annual Base Rental at the times and in the manner provided for in this Lease.

 

5.2.         Security Deposit. None Required.

 

5.3          (Deleted).

 

5.4          Additional Rent. In the event any additional usable square footage is acquired by the Tenant in its Premises due to alterations of or improvements made on the original Premises (by way of example, the addition of a loft), the Minimum Annual Base Rent payable by Tenant to Landlord under this Lease shall be increased, on a proportionate basis, to include the additional square footage utilized by the Tenant.

 

SECTION 6 - NO COUNTERCLAIM OR ABATEMENT OF RENT.

 

6.1          No Notice. Except as expressly provided herein, monthly rental and Additional Charges and all other sums payable by Tenant shall be paid without notice, demand, counterclaim, setoff, recoupment, deduction or defense of any kind or nature and without abatement, suspension, deferment, diminution or reduction. Except as expressly provided herein, Tenant waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease or the Premises or any part thereof and to any abatement, suspension, deferment, diminution or reduction of any sum payable by Tenant to Landlord.

 

6.2          No Conditional Payment. NO PAYMENT BY TENANT OR RECEIPT BY LANDLORD OF A LESSER AMOUNT THAN THE TOTAL OF ALL SUMS DUE HEREUNDER SHALL BE DEEMED TO BE OTHER THAN AN ACCOUNT OF THE EARLIEST STIPULATED RENT, NOR SHALL ANY ENDORSEMENT OR STATEMENT ON ANY CHECK, OTHER PAYMENTS OR ANY ACCOMPANYING LETTER BE DEEMED AS ACCORD AND/OR SATISFACTION AND LANDLORD MAY ACCEPT SUCH CASH AND/OR NEGOTIATE SUCH CHECK OR PAYMENT WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO RECOVER THE BALANCE OF SUCH RENT OR PURSUE ANY OTHER REMEDY PROVIDED IN THIS LEASE OR OTHERWISE, REGARDLESS OF WHETHER LANDLORD MAKES ANY NOTATION ON SUCH INSTRUMENT OF PAYMENT OR OTHERWISE NOTIFIES TENANT THAT SUCH ACCEPTANCE, CASHING OR NEGOTIATION OF SUCH PAYMENT IS WITHOUT PREJUDICE TO ANY OF LANDLORD'S RIGHTS. TENANT SPECIFICALLY WAIVES THE PROVISIONS OF A.R.S. 47-1207.

 

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SECTION 7 - COMMON AREAS.

 

7.1          Use of Common Areas. All facilities furnished by Landlord in the Project and designated for the general common use of occupants of the Project, including Tenant hereunder, its officers, agents, employees and customers, shall at all times be subject to the exclusive control and management of Landlord. Landlord shall have the right, from time to time, to change the area, level, location and arrangement of parking areas and other Common Area facilities and to make all rules and regulations pertaining to and necessary for the proper operation and maintenance thereof. Landlord shall have the exclusive right at any and all times to close any portion of the Common Areas for the purpose of making repairs, changes or additions thereto; may change the size, area or arrangement of the Common Areas; and may enter into agreements as Landlord deems appropriate for parking and ingress or egress.

 

7.2          Parking Policy. There will be reserved for Tenant two (2) parking spaces which are exclusively reserved on a 24 hour a day basis.

 

7.3          Parking Charges. Landlord will establish a reasonable schedule of fees for all parking spaces in the Project in order to provide parking for tenants, tourists and periodic visitors to the Project. Notwithstanding anything contained herein to the contrary, Landlord has the right to meter the parking lot of the Project and charge an hourly fee to anyone who parks a vehicle in the lot. Landlord reserves the right to regulate the parking at the Project to ensure that the parking lot is used on a long term basis by customers of the Project and not tenants, employees, or the general public.

 

SECTION 8 - USE OF PREMISES.

 

8.1          Use. Tenant shall use the Premises solely for the Permitted Uses set forth in the Fundamental Lease Provisions and not for any other purpose. Tenant shall not use or permit the Premises to be used in violation of the laws, ordinances, regulations and requirements of the United States, the State of Arizona, Coconino County, the City of Sedona or any subdivision or department thereof or any other authority or agency having jurisdiction over the Premises or the Project.

 

8.2          Prohibited Conduct. Except by prior written consent of Landlord, Tenant shall not:

 

A.           Use or operate any machinery that, in Landlord's opinion, is harmful to the Premises or the Project or disturbing to other tenants in the building of which the Premises is a part; use any loud speakers, televisions, stereos, radios or other devices in a manner so as to be heard or seen outside the Premises.

 

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B.           Do or suffer to be done any act, matter or thing objectionable to the fire, casualty or liability insurance carriers whereby any insurance now in force or hereafter to be placed on the Premises or the Project, or any part thereof, shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the date when Tenant receives possession of the Premises. In case of a breach of this covenant, in addition to all other remedies of Landlord hereunder, Tenant agrees to pay to Landlord as additional rent any and all increase or increases of premiums on insurance carried by Landlord on the Premises or the Project.

 

C.           Do or cause to be done any act, matter or thing in violation of any federal, state, county or local law, statute, regulation, rule or ordinance.

 

8.3          Prescribed Conduct. At all times throughout the Lease Term, Tenant shall:

 

A.           Comply with any and all requirements of any of the constituted public authorities and with the terms of any state or federal statute or local ordinance or regulation applicable to Tenant or its use, safety, cleanliness or occupation of the Premises, and save Landlord harmless from penalties, fines, costs, expenses or damages resulting from Tenant's failure to do so.

 

B.           Give Landlord prompt written notice of any accident, fire, pest infestation, or damage occurring on or to the Premises.

 

C.           Load and unload goods at such times in the areas and through such entrances as may be designated for "Delivery" by Landlord. Such trailers or trucks shall not be permitted to remain parked overnight in any area of the Project, whether loaded or unloaded. Designated fire lanes shall not be used for the loading or unloading of merchandise, parking or standing of running vehicles at any time. The unlawful use of such fire lanes may result in the towing of the offending vehicle and subject the owner or user thereof to all applicable fines established by the City of Sedona and/or Landlord.

 

D.           Comply with all reasonable rules and regulations of Landlord in effect at the time of the execution of this Lease or at any time or times, and from time to time, promulgated by Landlord which Landlord, in its sole discretion, shall deem necessary in connection with the Premises or the Project including but not limited to both the operation of Tenant's business during certain minimum days and hours.

 

8.4          Operation of Premises - Intentionally Deleted.

 

SECTION 9 - TENANT'S CONSTRUCTION OF IMPROVEMENTS.

 

9.1          Tenant's Obligation.      Tenant did construct two (2) efficiency apartments in accordance with the LURA and the DA.

 

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9.2           Intentionally Deleted.

 

9.3           Written Approval. Tenant shall not make or cause to be made any alterations, additions or improvements to the Premises, without first obtaining Landlord's written approval and consent. Tenant shall present to Landlord plans and specifications for such work at the time approval is sought. Landlord may condition its approval upon the requirement that Tenant, or its contractor, secure and bear the cost of a labor and materials payment bond. All alterations, improvements, additions and fixtures made or installed by Tenant shall remain upon the Premises at the expiration or earlier termination of this Lease and shall become the property of Landlord.

 

9.4           Trade Fixtures. Tenant shall not cut or drill into or secure any trade fixtures, apparatus or equipment of any kind to any part of the Premises without first obtaining the written consent of Landlord, which shall not be unreasonably withheld. All furnishings, equipment and machines installed by Tenant and that are not trade fixtures in the Premises shall remain the property of Tenant subject to any lien provided Landlord by law and shall be removed at the expiration or earlier termination of this Lease, or any renewal or extension thereof; provided, Tenant shall not at such time be in default under any covenant or agreement contained in this Lease and provided further that in the event of such removal, Tenant shall promptly restore the Premises to its original order and condition. Any such furnishings, trade fixtures, equipment and machines not removed at or prior to such termination of this Lease shall be and become the property of Landlord.

 

SECTION 10 - TENANT OBLIGATIONS.

 

10.1         Payment by Tenant. Tenant shall pay and discharge punctually as and when the same shall become due and payable, each and every cost, expense and obligation of every kind and nature, foreseen or unforseen, arising out of the possession, operation, maintenance, alteration, repair, rebuilding, use or occupancy of the Premises. Tenant shall also pay and discharge punctually, as and when the same shall become due and payable without penalty, personal property, business, occupation and occupational license taxes, water, sewer, electricity and telephone charges and fees.

 

10.2         Payment by Landlord. Tenant shall not be required to pay or reimburse Landlord for (i) any local, state or federal capital levy, franchise tax, revenue tax, income tax, or profits tax of Landlord unless and to the extent such levy, tax or imposition is in lieu of or a substitute for any other levy, tax or imposition now or later in existence upon or with respect to the Premises which, if such other levy, tax or impostion were in effect, would be payable by Tenant under the provisions hereof; (ii) any estate, inheritance, devolution, succession or transfer tax which may be imposed upon or with respect to any transfer (other than taxes in connection with a conveyance by Landlord to Tenant) of Landlord's interest in the Premises; or (iii) any lien not of record as of the Commencement Date arising from the unilateral acts or omissions of Landlord and unrelated to a default of Tenant under this Lease.

 

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10.3         Proof of Payment. Tenant, upon Landlord's request, shall furnish to Landlord within thirty (30) days thereafter proof of the payment of any obligation to be paid by Tenant.

 

10.4         Personal Property Taxes. Tenant shall be responsible for and shall pay before delinquency all taxes levied or assessed against any leasehold interest or personal property of any kind owned or placed in, upon or about the Premises by Tenant. Tenant hereby agrees to protect and hold harmless Landlord and the Premises from any liability for Tenant's share of any and all such taxes, assessments and charges together with any interest, penalties or other charges thereby imposed, and from any sale or other proceedings to enforce payment thereof, and to pay all such taxes, assessments and charges before delinquency and before same become a lien.

 

10.5         Premises Utilities. Landlord pays utilities for the property, which average approximately Five Hundred Dollars ($500.00) per month per unit. In no event shall Landlord be liable for any interruption or failure in the supply of any utilities to the Premises.

 

10.6         Merchants Association. Not Applicable

 

SECTION 11 - COMMON AREA MAINTENANCE. - Intentionally Deleted

 

SECTION 12 - MAINTENANCE AND REPAIRS BY TENANT.

 

12.1         Tenant's Obligation. Tenant shall keep and maintain in good order, condition and repair (including any such replacement, periodic painting and restoration as is required for that purpose) the Premises and every part thereof and any and all appurtenances thereto wherever located, including but not limited to, the exterior and interior portion of all doors, door checks, door locks, windows, plate glass, store front, all plumbing and sewage facilities within the Premises, all alterations, improvements and installations made by Tenant and any repairs required to be made due to burglary or other illegal entry into the Premises. Tenant shall maintain and bear the expense of the light fixtures and bulbs, air-conditioning unit and filters, heating unit or furnace, janitorial services, interior pest control, and the like.

 

12.2         Prohibited Acts. Tenant shall not cause or permit accumulation of any debris or extraneous matter on the roof of the Premises and will be responsible for any damage caused thereto by any acts of Tenant, its agents, servants, employees or contractors. Tenant shall place any rubbish, broken down boxes, trash or other excess matter only in such containers as are authorized from time to time by Landlord; keep the Premises (including all exterior surfaces and both sides of all glass) clean, orderly, sanitary and free from objectionable odors and from insects, vermin, and other pests; and keep the outside areas and sidewalks immediately adjoining the Premises clean and free from empty boxes, trash of any kind, ice and any other obstructions or safety hazards.

 

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12.3         Rights of Landlord. If Tenant refuses or fails to commence and complete repairs or maintenance required herein promptly and adequately, Landlord may, but shall not be required to, make and complete the repairs or perform the maintenance. The cost of such repairs or maintenance shall be paid immediately by Tenant to Landlord as additional rent upon demand.

 

SECTION 13 - REPAIR BY LANDLORD.

 

13.1         Repair by Landlord. Landlord shall keep and maintain the foundation, exterior walls, floors and roof of the building in which the Premises are located exclusive of doors, door frames, door checks, door locks, windows and window frames located in exterior building walls. Landlord shall not, however, be required to make any such repairs when such repairs are the result of misuse or neglect by Tenant, its agents, employees, invitees, licensees or contractors. Any repairs required to be made by reason of such Tenant misuse or neglect shall be the responsibility of Tenant, the above provisions to the contrary notwithstanding. Except as provided herein, Landlord shall have no obligation to alter or modify the Premises, or any part thereof, or to repair and maintain any plumbing, heating, electrical, air-conditioning or other mechanical installation in the Premises. Under no circumstances shall Landlord be obligated to repair, replace or maintain any plate glass or door or window glass no matter what the cause.

 

13.2         Hazardous Materials. Exclusive of Hazardous Materials normally associated with Tenant's permitted use, if any, Tenant covenants and agrees not to use, generate, release, manage, treat, manufacture, store, or dispose of, on, under or about, or transport to or from (any of the foregoing hereinafter a "Use") the Premises any Hazardous Materials (other than "De Minimis" amounts (as defined below)). Tenant further covenants and agrees to pay all costs and expenses associated with enforcement, removal, remedial or other governmental or regulatory actions, agreements or order threatened, instituted or completed pursuant to any Hazardous Materials Laws, and all audits, tests, investigations, cleanup, reports and other such items incurred in connection with any efforts to complete, satisfy or resolve any matters, issues or concerns, whether governmental or otherwise, arising out of or in any way related to the Use of Hazardous Materials in any amount by Tenant, its employees, agents, invitees, subtenants, licensees, assignees or contractors. For purposes of this Lease (I) the term "Hazardous Materials" shall include but not be limited to asbestos, urea formaldehyde, polychlorinated biphenyls, automotive and petroleum products and byproducts (including, without limitation, gasoline, diesel and other fuels, new, used and recycled oil, grease, brake fluid, antifreeze, and other automotive fluids installed in or recovered from service vehicles or otherwise, and any other fuel additive, derivative, lubricant or byproduct generated, stored or used in Tenant's business operation or otherwise occurring), pesticides, radioactive materials, hazardous wastes, toxic substances and any other related or dangerous toxic or hazardous chemical, material or substance defined as hazardous or regulated or as a pollutant or contaminant in, or the use of or exposure to which is prohibited, limited, governed or regulated by, any Hazardous Materials Laws; (ii) the term "De Minimis" amounts shall mean, with respect to any given level of Hazardous Materials, that such level or quantity of Hazardous Materials in any form or combination of forms (a) does not constitute a violation of any Hazardous Materials Laws; and (b) is customarily employed in, or associated with, similar retail projects in Coconino County, Arizona; and (iii) the term "Hazardous Materials Laws" shall mean any federal, state, county, municipal, local or other statute, law, ordinance or regulation now or hereafter enacted which may relate or legislate the protection of human health or the environment, including but not limited to the Comprehensive Environment Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et leg.; the Toxic Substances Control Act of 1976, 15 U.S.C. Section 2601, et seq.; Ariz. Rev. Stat. Ann. Title 49 (The "Arizona Environmental Quality Act of 1986"); and any rules, regulations or guidelines adopted or promulgated pursuant to any of the foregoing as they may be adopted, amended or replaced from time to time.

 

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SECTION 14 - LIENS.

 

14.1         No Liens. Tenant shall have no authority to do any act or make any contract which may create or be the basis for any lien, mortgage or other encumbrance upon any interest of Landlord in the Premises or which would cause any document to be recorded against the Premises or the Project. Should Tenant cause any construction, alterations, rebuildings, restorations, replacements, changes, additions, improvements or repairs to be made on the Premises, or cause any labor to be performed or material to be furnished thereon, therein or thereto, neither Landlord nor the Premises shall under any circumstances be liable for the payment of any expense incurred or for the value of any work done or material furnished, and Tenant shall be solely and wholly responsible to contractors, laborers and materialmen for performing such labor and furnishing such material.

 

14.2         Tenant's Obligations. The initial and any subsequent alterations or improvements made by Tenant to the Premises must be paid for by Tenant when such alterations or improvements are made. Nothing in this Lease shall be construed to authorize Tenant, or any person dealing with or under Tenant, to charge the rents of the Premises, or the property and buildings of which the Premises form a part, or the interest of Landlord in the state of the Premises, with a mechanics' lien or encumbrance of any kind, and under no circumstances shall Tenant be construed to be the agent, employee or representative of the Landlord in the making of any such improvements or alterations to the Premises.

 

14.3         Removal of Liens. If, because of any act or omission (or alleged act or omission) of Tenant, any mechanic's, materialman's, or other lien, charge or order for the payment of money shall be filed or recorded against the Premises or against Landlord (whether or not such lien, charge or order is valid or enforceable as such), Tenant shall, at its own expense, either cause the same to be discharged of record pursuant to A.R.S. §33-1004, or otherwise cause such discharge, within ten (10) days after Tenant shall have received notice of the filing thereof, or Tenant may, within such period, furnish to Landlord a bond satisfactory to Landlord against such lien, charge or order, in which case Tenant shall have the right in good faith to contest the validity or amount thereof.

 

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SECTION 15 - INSURANCE.

 

15.1        Project Insurance. Landlord bears the risk of and may insure as a Common Area Expense as practical or as required by Landlord's Lender, the operation of the Project as a whole or the common areas thereof. Such insurance may include, but is not limited to, general liability, umbrella excess liability, bodily injury, public liability, property damage liability, fire and extended coverage in amounts not less than eighty percent (80%) of the replacement cost of the Project, sign insurance and the like in coverage limits selected by Landlord. Tenant shall pay to Landlord its "Proportionate Share" of such insurance as provided in Section 11 above.

 

15.2        Tenant's Property. Tenant agrees that all property owned by it in, on, or about the Premises shall be at the sole risk and hazard of the Tenant. Landlord shall not be liable or responsible for any loss or damage to Tenant, or anyone claiming under or through Tenant, or otherwise, whether caused by or resulting from a peril required to be insured hereunder, or from water, gas leakage, plumbing, electricity or electrical apparatus, pipe or apparatus of any kind, the elements or other similar or dissimilar causes, and whether or not originating in the Premises or elsewhere, irrespective of whether or not Landlord may be deemed to have been negligent with respect thereto, and provided such damage or loss is not the result of any intentional and wrongful act of Landlord. Tenant shall require all policies of risk insurance carried by it on its property in the Premises to contain or be endorsed with the provision in and by which the insurer designated therein shall waive its right of subrogation against Landlord.

 

15.3        Tenant's Operations. All operations conducted by Tenant shall be at Tenant's sole risk. In addition, Tenant shall procure insurance for its operations as follows:

 

A.           Tenant shall keep in force at its own expense public liability insurance and comprehensive general liability insurance, including contractual liability insurance sufficient to cover all phases and aspects of the operation and conduct of its business, with minimum limits of $2,000,000.00 on account of bodily injuries to or death of one person and $3,000,000.00 on account of bodily injuries to or death of more than one person as a result of any one accident or disaster, and $2,000,000.00 as a result of damage to property.

 

B.           Tenant shall keep and maintain in force during the Term hereof, plate glass insurance upon windows and doors in the Premises as required by Landlord unless Landlord maintains such insurance on behalf of all Tenants and treats it as a Common Area Expense.

 

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15.4         Certificate of Insurance. Tenant shall provide annually to Landlord a Certificate of Insurance listing Landlord as an additional named insured under the Tenant's policy of insurance.

 

15.5.        Insurance Companies. The policies affording the insurance required by this Lease shall be with companies (rated A-[minus] VII or better, A. M. Best's Key Rating Guide) authorized to do business in the State of Arizona and shall be in a form reasonably satisfactory to Landlord, shall provide replacement cost coverage, shall name Landlord as an additional insured, and shall provide for payment of loss thereunder to Landlord and Tenant as their interests may appear. The policies or certificates evidencing such insurance shall be delivered to Landlord on or before the Commencement Date and renewals thereof shall be delivered to Landlord at least thirty (30) days prior to the expiration dates of the respective policies. Alternatively, the insurance required by this Section 15 may be provided under a blanket policy to the Tenant's existing insurance policy.

 

15.6.        Failure to Procure Insurance. In the event Tenant shall fail to procure insurance required under this Lease or fail to maintain the same in force continuously during the Term, or any extension thereof, Landlord shall be entitled to procure such insurance and Tenant shall, upon demand, immediately reimburse Landlord for such premium expense or Landlord may declare Tenant in default under this Lease.

 

15.7         Repair. In the event of loss under any such policy or policies, Tenant shall promptly proceed with the repair and restoration of the damaged or destroyed improvements in accordance with Section 16 of this Lease. The insurance proceeds, if less than $20,000.00, shall be paid to Tenant for application to such repair, restoration or remediation, so long as (a) Tenant is not then in default under this Lease, and (b) Tenant expressly covenants in writing with Landlord to expend such funds for the repair, restoration or remediation of the Premises and the improvements therein, and to furnish Landlord with documentation evidencing such expenditure of funds for work and improvements incorporated in the Premises within thirty (30) days following completion of such repair, restoration or remediation. If the insurance proceeds exceed $20,000.00, the same shall be paid to and held in trust by the Landlord pursuant to Section 16 of this Lease. All insurance proceeds described in this Section 15.7 shall be paid upon architects' certificates and contractors', subcontractors' and materialmen's waivers of lien for the cost and expense of repair, restoration or remediation of the damage. If at any time such insurance proceeds shall be insufficient to pay fully the cost of completion of such repair, restoration or remediation, Tenant shall upon demand of Landlord pay a sufficient portion of such cost so that it shall appear to the reasonable satisfaction of Landlord that the amount of insurance money in the hands of Tenant or Landlord, as applicable, shall at all times be sufficient to pay for the completion of the repairs, restoration or remediation free and clear of all liens. Upon the completion of the repairs, restoration or remediation, free and clear of all liens, any surplus of insurance monies shall be paid to Tenant, provided that Tenant is not then in default hereunder. In the event that this Lease shall have been terminated for any default of Tenant under any of the terms and provisions contained in this Lease, all proceeds of insurance in the hands of Tenant or Landlord and all claims against insurers shall be and become the absolute property of Landlord.

 

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SECTION 16 - DAMAGE OR DESTRUCTION.

 

16.1         Tenant Obligations. In the event of damage to or destruction of any of the improvements on the Premises by fire or other casualty, Tenant shall give Landlord immediate notice thereof and shall, at Tenant's own expense and whether or not the insurance proceeds are sufficient for the purpose, promptly commence and thereafter diligently pursue completion of the repair, restoration or rebuilding of the same so that upon completion of such repairs, restoration or rebuilding, the value and rental value of the improvements shall be substantially equal to the value and rental value thereof immediately prior to the occurrence of such fire or other casualty. Tenant hereby expressly waives any statutory right to terminate this Lease in the event of damage or destruction of the Premises or all or any portion of the buildings or improvements thereon.

 

16.2         Lease Termination. Notwithstanding anything to the contrary contained herein, if the Premises should be rendered untenantable by fire or other casualty during the last two (2) years of the Term to the extent of fifty percent (50%) or more of the replacement cost of the Premises, Tenant shall have the option to terminate this Lease by notice to Landlord within sixty (60) days after the occurrence of such damage or destruction. Upon termination, this Lease and the Term hereof shall cease and come to an end as of the effective date of such notice (which shall be not less than thirty (30) nor more than ninety (90) days after the notice and shall be specified in the notice). Any unearned rent or other charges shall be apportioned as of the effective date and Tenant shall assign to Landlord all of its rights to the insurance proceeds arising out of damage or destruction to the improvements and shall pay Landlord (when the information is ascertained) the difference between the value of the property damaged or destroyed, prior to the damage or destruction, and the amount, if any, of the insurance proceeds.

 

SECTION 17 - EASEMENTS.

 

Landlord expressly reserves all rights in and with respect to the use of the Premises as provided herein, including (without in any way limiting the generality of the foregoing) the rights of Landlord to establish Common Areas and grant parking easements to others and to enter upon the Premises and give easements to others for the purpose of installing, using, maintaining, renewing and replacing such overhead or underground water, gas, sewer, and other pipe lines, and telephone, electric and power lines, cables and conduits as Landlord may deem desirable in connection with the development or use of the other property in the Project or any other property in the neighborhood thereof, whether owned by Landlord or not.

 

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SECTION 18 - INDEMNIFICATION.

 

18.1.        By Tenant. Excepting any responsibility allocated to Landlord by reason of its negligence (excluding from this exception, however, any responsibility allocated to Landlord by reason of its failure to enforce the terms of this Lease), Tenant shall indemnify, defend and hold Landlord harmless for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Landlord by reason of the acts or omissions of Tenant, its agents, employees, contractors, suppliers, licensees, invitees and guests and/or the occurrence of any of the following during the Term: (i) any use, nonuse or condition of the Premises or any part thereof; (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Premises or any part thereof; (iii) any failure on the part of Tenant to perform or comply with any of the provisions of this Lease; (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Landlord and unrelated to a default of Tenant under this Lease); or (v) any failure on the part of Tenant to clean up and/or dispose of any Hazardous Materials, as described in Section 13.2 above, in accordance with the requirements of this Lease and applicable law. In the event Landlord should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Tenant shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Tenant but approved by Landlord. If any such action, suit or proceeding should result in a final judgment against Landlord, Tenant shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Tenant under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.

 

18.2         By Landlord. Landlord shall save, hold harmless and indemnify Tenant for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Tenant by reason of the negligence of Landlord or its agents, contractors, servants or employees.

 

18.3         Waiver of Claims. Landlord and its agents, contractors, servants or employees and shall not be liable for, and Tenant hereby releases all claims for, damage to persons and property sustained by Tenant or any person claiming through Tenant resulting from any theft, fire, accident, occurrence or condition in, on or about the Premises or building of which they are a part, including, but not limited to, such claims for damage resulting from (i) any defect in or failure of plumbing, heating or air-conditioning equipment, electric wiring or installation thereof, water pipes, stairs, railings or walks; (ii) any equipment or appurtenances needing repair; (iii) the bursting, leaking or running of any tank, wash stand, water closet, waste pipe, drain or any other pipe or tank in or about the Premises; (iv) the backing up of any sewer pipe or down spout; (v) the escape of steam or hot water; (vi) water, snow or ice being upon or coming through the roof or any other place upon or near the Premises or otherwise; (vii) the falling of any fixture, plaster or stucco; and (viii) broken glass.

 

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SECTION 19 - ASSIGNMENT AND SUBLETTING.

 

19.1         Landlord Consent. Tenant shall not transfer or assign this Lease or any interest in this Lease or sublet the Premises or any portion thereof without first obtaining the written consent of Landlord, which consent may be given or withheld in Landlord's sole discretion; and any attempted transfer, assignment or subletting, including any involuntary transfers or assignments by operation of law, without such consent shall be void and confer no rights upon any third person, and at the option of Landlord, shall cause a termination of this Lease, in which event such third person shall occupy the Premises as a tenant at sufferance. The acceptance of any rent payments by Landlord from any such alleged assignee shall not constitute approval of the assignment or subletting of this Lease by Landlord. No transfer, assignment or subletting shall relieve Tenant of its liability for the full performance of all of the provisions, agreements, covenants and conditions of this Lease. A consent by Landlord to one transfer, assignment or subletting shall not operate as a waiver of this Section as to any future transfer, assignment or subletting, and this Section 19 shall apply to any transferee, assignee or subtenant.

 

19.2         In Writing. Each transfer, assignment, and subletting to which there has been consent shall be by an instrument in writing in form satisfactory to Landlord, and shall be executed by the transferor, assignor or sublessor; and the transferee, assignee, or sublessee shall agree in writing for the benefit of Landlord to assume, to be bound by, and to perform the provisions, covenants and conditions of this Lease to be done, kept and performed by Tenant. One executed copy of such written instrument shall be delivered to Landlord. A consent to any transfer, assignment or subletting shall not constitute waiver or discharge of the provisions of this paragraph with respect to a subsequent transfer, assignment or subletting. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to the transfer, assignment or subletting of the Premises.

 

19.3         Transfer Limitation. If Tenant (including any entity later becoming Tenant) is a corporation, unincorporated association, limited liability company or a partnership, the transfer (other than pursuant to the laws of devise and descent upon the death of a shareholder, partner or owner), assignment or hypothecation of any stock or interest in such corporation, association, company or partnership in the aggregate in excess of twenty percent (20%) from the time such entity becomes a Tenant hereunder, shall be deemed an assignment within the meaning and provisions of this Section 19. The foregoing sentence shall not apply to a corporation of which the capital stock is publicly traded on a recognized national stock exchange.

 

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19.4         Deleted.

 

SECTION 20 - SUBJECT TO MASTER LEASE.

 

Tenant acknowledges that this Lease is subordinate to a Master Lease of the Project among CANYON PORTAL PROPERTIES, L.L.C. and ATHERTON VENTURES, L.L.C. as Landlord and CANYON PORTAL II, L.L.C. , an Arizona limited liability company as Tenant. A Memorandum of Lease is recorded in Coconino County as Instrument No. 98-21399 on July 2, 1998. An Amendment to Memorandum of Lease is recorded in Coconino County as Instrument No. 3288292 on October 14, 2004.

 

SECTION 21 - DEFAULTS BY TENANT.

 

21.1        Event of Default. Each of the following occurrences shall be an Event of Default hereunder:

 

A.           If Tenant fails to pay any Rent, Additional Charges or any sum due hereunder promptly when due and such failure continues for three (3) days after the date such payment was due.

 

B.           If Tenant defaults or breaches any of the other (non-monetary) covenants, agreements, conditions or undertakings herein to be kept, observed and performed by Tenant and such default continues for ten (10) days after notice thereof in writing to Tenant.

 

C.           TENANT ACKNOWLEDGES THAT ANY VIOLATION OF ANY OF THE PRESCRIBED CONDUCT AS SET FORTH IN PARAGRAPH 8.3 IS A MATERIAL BREACH OF THIS LEASE. IF IN ANY TWELVE (12) MONTH PERIOD THERE ARE MORE THAN TWO (2) NOTICES OF VIOLATION OF PARAGRAPH 8.3 SENT BY LANDLORD TO TENANT, THEN LANDLORD SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE WITHOUT NOTICE.

 

TENANT'S INITIALS:               

 

D.           If Tenant files any petition under any chapter or section of the Federal Bankruptcy Code or any similar law, state or federal, whether now or hereafter existing, or shall file an answer admitting insolvency or inability to pay its debts.

 

E.           If Tenant fails to obtain a stay of any involuntary proceedings under any chapter or section of the Federal Bankruptcy Code within sixty (60) days after the institution thereof.

 

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F.           If a trustee or receiver is appointed for Tenant or for a major portion of its property or for any portion of the Premises and such appointment is not vacated and dismissed within sixty (60) days thereafter and in any event prior to any action adverse to the interest of Tenant or Landlord having been taken by such trustee or receiver.

 

G.           If any court takes jurisdiction of a major portion of the property of Tenant or any part of the Premises in any involuntary proceeding for dissolution, liquidation or winding up of Tenant and such jurisdiction is not relinquished or vacated within sixty (60) days.

 

H.           If Tenant makes an assignment for the benefit of its creditors.

 

I.           If Tenant fails to occupy and operate the business in the Premises for three (3) consecutive days (except as otherwise allowed under Section 8.4).

 

21.2        Re-Enter of Premises. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, to reenter the Premises, or any part thereof, either with or without process of law, and to expel, remove and evict Tenant and all persons occupying or upon the same under Tenant, using such force as may be lawful and necessary in so doing, and to possess the Premises and enjoy the same as in their former estate and to take full possession of and control over the Premises and the buildings and improvements thereon and to have, hold and enjoy the same and to receive all rental income of and from the same. No reentry by Landlord shall be deemed an acceptance of a surrender of this Lease, nor shall it absolve or discharge Tenant from any liability under this Lease. Upon such reentry, all rights of Tenant to occupy or possess the Premises shall cease and terminate.

 

21.3        Lease Termination. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, with or without reentry as provided in Section 21.2, to give written notice to Tenant stating that this Lease shall terminate on the date specified by such notice, and upon the date specified in such notice this Lease and the Term hereby demised and all rights of Tenant hereunder shall terminate. Upon such termination, Tenant shall quit and peacefully surrender to Landlord the Premises and the buildings and improvements then situated thereon.

 

21.4       Reletting. At any time and from time to time after such reentry, Landlord may relet the Premises and the buildings and improvements thereon, or any part thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease), and on such conditions (which may include concessions or free rental) as Landlord, in its reasonable discretion, may determine and may collect and receive the rental therefore. However, in no event shall Landlord be under any obligation to relet the Premises and the buildings and improvements thereon, or any part thereof, and Landlord shall in no way be responsible or liable for any failure to relet or for any failure to collect any rental due upon any such reletting. Even though it may relet the Premises, Landlord shall have the right thereafter to terminate this Lease and all of the rights of Tenant in or to the Premises. Nothing contained in the foregoing shall be deemed a waiver or relinquishment by Tenant of any duty imposed by law on Landlord to mitigate its damages.

 

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21.5        Survival of Liability. Unless Landlord shall have notified Tenant in writing that it has elected to terminate this Lease, no such reentry or action in lawful detainer or otherwise to obtain possession of the Premises shall relieve Tenant of its liability and obligations under this Lease; and all such liability and obligations shall survive any such reentry. In the event of any such reentry, whether or not the Premises and the buildings and improvements thereon, or any part thereof, shall have been relet, Tenant shall pay to Landlord the entire rental and all other charges required to be paid by Tenant up to the time of such reentry of this Lease, and thereafter Tenant, until the end of what would have been the Term of this Lease in the absence of such reentry, shall be liable to Landlord, and shall pay to Landlord, as damages for Tenant's default:

 

A.           The amount of Minimum Annual Base Rental and additional charges which would be payable under this Lease by Tenant if this Lease were still in effect, less

 

B.           The net proceeds of any reletting, after deducting all of Landlord's expenses in connection with such reletting, including without limitation all repossession costs, brokerage commissions, legal expenses, attorneys' fees, alteration costs and expenses of preparation for such reletting.

 

Tenant shall be liable for and pay such damages to Landlord on a monthly basis on the first day of each month and Landlord shall be entitled to recover from Tenant monthly as the same shall arise. The excess, if any, in any month or months, of the net proceeds described in subparagraph (B) above actually received by Landlord over the Minimum Annual Base Rental and Additional Charges described in subparagraph (A) above shall belong to Landlord, provided that such excess shall be credited and applied against Tenant's future obligations arising under this Section 21.5 as the same become due and payable by Tenant hereunder, and that Tenant shall remain liable for future deficiencies, as applicable. Notwithstanding any such reentry without termination, Landlord may at any time thereafter, by written notice to Tenant, elect to terminate this Lease for Tenant's previous breach.

 

21.6       Cumulative Remedies. Each right and remedy of Landlord provided for in this Lease shall be cumulative and in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise; and the exercise or beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease now or hereafter existing at law or in equity or by statute or otherwise.

 

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21.7         Sublessee Defaults. Any violation of any covenant or provision of this Lease, whether by act or omission, by any sublessee or any other persons occupying any portion of the Premises under the rights of Tenant shall be deemed a violation of such provision by Tenant and a default under this Lease. Any such violation shall not be deemed to be a default hereunder if and so long as Tenant in good faith and at its own expense takes and diligently pursues any and all steps it is entitled to take and which steps if completed will cure said default.

 

21.8        Repetitive Rent Payment Defaults. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 21.1 HEREOF TO THE CONTRARY, IF IN ANY ONE (1) PERIOD OF TWELVE (12) CONSECUTIVE MONTHS, TENANT SHALL HAVE BEEN IN DEFAULT IN THE PAYMENT OF RENT HEREIN AT LEAST THREE (3) TIMES AND LANDLORD, BECAUSE OF SUCH DEFAULTS, SHALL HAVE SERVED UPON TENANT WITHIN SUCH TWELVE (12) MONTH PERIOD THREE (3) OR MORE NOTICES OF LATE PAYMENT, THEN THE FOURTH DEFAULT SHALL BE DEEMED TO BE A NONCURABLE DEFAULT AND LANDLORD SHALL BE ENTITLED TO IMMEDIATE POSSESSION OF THE PREMISES.

 

21.9        Cure Period. Notwithstanding any other provision of this Section, Landlord agrees that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be cured within the twenty (20) day period for curing as specified in the written notice relating thereto, then such default shall be deemed to be cured if Tenant within such period of twenty (20) days shall have commenced thereof and shall continue thereafter with all due diligence to effect such cure and does so complete the same with the use of such diligence as aforesaid.

 

21.10      Late Charges. A late charge in the amount of ten percent (10%) of the delinquent payment shall be assessed to any payment required to be made by Tenant to Landlord under the terms of this Lease not received by Landlord within three (3) days after its due date (regardless of whether Tenant has been given notice of such failure of payment). If Tenant tenders to Landlord a check that is returned marked "NSF" or its equivalent, Tenant shall pay Landlord a payment in the amount of twenty percent (20%) of the amount of such non-negotiable check. Tenant's failure to pay any such late charge within three (3) days after Landlord's written demand therefor shall constitute an Event of Default hereunder. In addition to the payments set forth in the preceding two sentences, Tenant shall pay Landlord interest at the rate of eighteen percent (18%) per annum from the date any payment is due until the date such payment is actually received by Landlord.

 

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SECTION 22 - CONDEMNATION.

 

If title to all or any portion of the Premises is taken by a public or quasi-public authority under any statute or by right of eminent domain of any governmental body, whether such loss or damage results from condemnation of part or all of the Premises, Tenant shall not be entitled to participate or receive any part of the damages or award except where the same shall provide for Tenant's moving or other reimbursable expenses, the portion thereof allocated to the taking of Tenant's trade fixtures, equipment and personal property or to a loss of business by Tenant. Should any power of eminent domain be exercised after Tenant is in possession, such exercise shall not void or impair this Lease unless the amount of the Premises so taken substantially and materially impairs the usefulness of the Premises for the purposes for which they are leased in which case, either party may cancel this Lease by notice to the other within sixty (60) days after such possession. Should only a portion of the Premises be taken and the Premises continue to be reasonably suitable for Tenant's use, the rent shall be reduced from the date of such possession in direct proportion to the reduction in the square footage of the Premises.

 

SECTION 23 - TENANT'S WAIVER OF STATUTORY RIGHTS.

 

In the event of any termination of the Term (or any repossession of the Premises), Tenant so far as permitted by law, waives (i) any notice of reentry or of the institution of legal proceedings to that end; and (ii) the benefits of any laws now or hereafter in force exempting property from liability for rent or for debt.

 

SECTION 24 - WAIVER OF PERFORMANCE.

 

No failure by Landlord or Tenant to insist upon the strict performance of any term or condition hereof or to exercise any right, power or remedy consequent upon a breach thereof and no submission by Tenant or acceptance by Landlord of full or partial rent during the continuance of any such breach shall constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Lease (which shall continue in full force and effect), or the respective rights of Landlord or Tenant with respect to any other then-existing or subsequent breach.

 

SECTION 25 - REMEDIES CUMULATIVE.

 

Each right, power and remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise; and the exercise or beginning of the exercise of any one or more of the rights, powers or remedies provided for in this Lease shall not preclude the simultaneous or later exercise of any or all such other rights, powers or remedies.

 

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SECTION 26 - CONVEYANCE BY LANDLORD.

 

In the event Landlord or any successor Landlord shall convey or otherwise dispose of the Premises, it shall thereupon be released from all liabilities and obligations imposed upon Landlord under this Lease (except those accruing prior to such conveyance or other disposition) and such liabilities and obligations shall be binding solely on the then owner of the Premises.

 

SECTION 27 - NO PERSONAL LIABILITY TO LANDLORD.

 

Tenant shall look solely to Landlord's interest in the Premises for the satisfaction of any judgment or decree requiring the payment of money by Landlord based upon any default under this Lease, and no other property or assets of Landlord, or any partner or member of, or shareholder in, Landlord, shall be subject to levy, execution or other enforcement procedures for satisfaction of any such judgment or decree.

 

SECTION 28 - ATTORNEYS' FEES.

 

In the event Landlord retains an attorney to enforce its rights under this Lease or to bring suit for possession of the Premises, for the recovery of any sum due hereunder, or for any other relief against Tenant, declaratory or otherwise, arising out of a breach of any term of this Lease, or in the event Tenant should bring any action for any relief against Landlord, declaratory or otherwise, arising out of this Lease, the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, which shall be deemed to have accrued due to the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

 

SECTION 29 - PROVISIONS SUBJECT TO APPLICABLE LAW.

 

All rights, powers and remedies provided herein shall be exercised only to the extent that the exercise thereof shall not violate any applicable law and are intended to be limited to the extent necessary so that they shall not render this Lease invalid or unenforceable under any applicable law. If any term of this Lease shall be held to be invalid, illegal or unenforceable, the validity of the other terms of this Lease shall in no way be affected thereby.

 

SECTION 30 - RIGHT TO CURE TENANT'S DEFAULTS.

 

In the event Tenant shall breach any term, covenant or provision of this Lease, Landlord may at any time, without notice, cure such breach for the account and at the expense of Tenant. If Landlord at any time, by reason of such breach, is compelled to pay or elects to pay any sum of money or to do any act that will require the payment of any sum of money, or is compelled to incur any expense, including reasonable attorneys' fees, incurred in instituting, prosecuting or defending any actions or proceedings to enforce Landlord's rights under this Lease or otherwise, the sum or sums so paid by Landlord, with all interest, costs and damages, shall be deemed to be Additional Charges and shall be paid by Tenant to Landlord on the first day of the month following the incurring of such expenses of the payment of such sums and shall include interest at the rate of eighteen percent (18%) per annum from the date Landlord makes a payment until Tenant pays such Additional Charges in full.

 

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SECTION 31 - NOTICES.

 

Any notice to be given by Landlord or Tenant shall be given in writing and delivered in person or by overnight mail service to Landlord or Tenant, forwarded by certified or registered mail, postage prepaid, or sent via facsimile transmission, to the address indicated in the Fundamental Lease Provisions, unless the party giving any such notice has been notified, in writing, of a change of address. Any such notice shall be deemed effective (a) upon receipt or refusal to accept delivery, if personally delivered; (b) on the next business day following delivery to the overnight courier; (c) in the case of certified mailing, on the date of actual delivery as shown by the addressee's receipt or upon the expiration of three (3) business days following the date of mailing, whichever occurs first; or (d) in the case of facsimile transmission, upon receipt (a written confirmation of successful transmission from the transmitting facsimile machine being prima fade evidence of such receipt).

 

SECTION 32 - SIGNS.

 

Tenant shall not place, alter, exhibit, inscribe, paint or affix any sign, awning, canopy, advertisement, notice or other lettering on any part of the outside of the Premises, or of the building of which the Premises is a part, or inside the Premises if visible from the outside, without first obtaining Landlord's written approval thereof, which shall not be unreasonably withheld, and if so approved, Tenant shall maintain the same in good condition and repair. All signs shall comply with applicable ordinances or other governmental restrictions and with all applicable rules and regulations then in force or as may be put in force and effect from time to time by any governmental authority or by Landlord.

 

SECTION 33 - LANDLORD'S INSPECTIONS.

 

33.1         Inspection. Landlord reserves the right to, at all reasonable times, by itself or by its duly authorized agents, employees and contractors, and without notice to go upon and inspect the Premises and every part thereof, to enforce or carry out the provisions of this Lease, to make, at its option, repairs, installations, alterations, improvements and additions to the Premises or the building of which the Premises are a part, to perform any defaulted obligation of Tenant or for any other proper purposes. Landlord also reserves the right to install or place upon or affix to the roof and exterior walls of the Premises: equipment, signs, displays, antennae and any other object or structure of any kind, provided the same shall not interfere with Tenant's occupancy or materially impair the structural integrity of the building of which the Premises are a part.

 

23
 

 

33.2         Presenting for Sale or Lease. Landlord hereby reserves the right during usual business hours to enter the Premises and to show the same for purposes of sale, lease or mortgage, and during the last six (6) months of the term of this Lease, or the extension thereof, to exhibit the same to any prospective tenant, and to display appropriate signage for such sale or lease. Prospective purchasers or tenants authorized by Landlord may inspect the Premises during reasonable hours at any time.

 

SECTION 34 - ESTOPPEL CERTIFICATE.

 

Tenant will execute, acknowledge and deliver to Landlord, within three (3) days following request therefor, a certificate certifying (a) that this Lease is unmodified and in full force (or, if there have been modifications, that the Lease is in full force and effect, as modified, and stating the modifications); (b) the dates, if any, to which rent, Additional Charges and other sums payable hereunder have been paid; (c) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; and (d) this Lease is and shall be subordinate to any existing or future deed of trust, mortgage or security agreement placed upon the Premises or the Project by the Landlord or owner of the Property. Any claim of Tenant in contradiction of any of the foregoing matters must be set forth with specificity in the certificate. Any such certificate may be relied upon by any prospective purchaser or encumbrancer of the Premises or any part thereof. Tenant's failure to deliver such certificate within the time permitted hereby shall be conclusive upon Tenant that this Lease is in full force and effect, except to the extent any modification has been represented by Landlord, and there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance. In addition, at Landlord's option, after notice to Tenant and expiration of applicable grace period under this Lease, such failure of Tenant to deliver such certificate shall constitute an Event of Default. Tenant acknowledges and agrees that the promise to issue such statements pursuant hereto are a material consideration inducing Landlord to enter into this Lease and that the breach of such promise shall be deemed a material breach of this Lease.

 

SECTION 35 - WAIVER OF TRIAL BY JURY.

 

TENANT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR TENANT AGAINST EACH OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES. TENANT AGREES THAT EXCLUSIVE JURISDICTION FOR ALL LEGAL ACTIONS SHALL BE COCONINO COUNTY SUPERIOR COURT.

 

24
 

 

SECTION 36 - RECORDING.

 

Neither this Lease nor a memorandum thereof, may be recorded, or otherwise made public, by any means, without the express written consent of Landlord. Any such recording or publication without such consent, shall, at Landlord's option, cause this Lease and all rights of Tenant hereunder, to be immediately forfeited and of no further force and effect, provided, however, that Landlord shall have the right to such action against Tenant, for damages resulting from such recording, as Landlord shall be entitled to by law.

 

SECTION 37 - SUBORDINATION.

 

This Lease is hereby declared to be subject and subordinate to the lien of any present or future encumbrance or encumbrances upon the Premises or the Project, irrespective of the time of execution or the time of recording of any such encumbrance or encumbrances. Landlord shall use its good faith efforts to obtain for Tenant an attornment and non-disturbance agreement from any lender which has a lien on the Premises. This subordination is subject to the right of Tenant upon a foreclosure or other action taken under any mortgage by the holders thereof to have this Lease and the rights of Tenant hereunder not be disturbed but to continue in full force and effect so long as Tenant shall not be in default hereunder. The word "encumbrance" as used herein includes mortgages, deeds of trust or other similar instruments, and modifications, extensions, renewals and replacements thereof, and any and all advances thereunder.

 

SECTION 38 - MISCELLANEOUS.

 

38.1         Definition of Tenant.   The Term "Tenant" shall include legal representatives, successors and permitted assigns. All covenants herein shall be made binding upon Tenant and construed to be equally applicable to and binding upon its agents, employees and others claiming the right to be in the Premises or in the building or in the building through, under or above Tenant.

 

38.2        Tenant. If more than one individual, firm, or corporation shall join as Tenant, singular context shall be construed to be plural wherever necessary and the covenants of Tenant shall be the joint and several obligations of each party signing as Tenant and when the parties signing as Tenant are partners, it shall be the obligation of the firm and of the individual members thereof.

 

38.3        Gender and Number. Whenever from the context it appears appropriate, each item stated in the singular shall include the plural and vice versa and the masculine, feminine, or neuter form shall included the masculine, feminine and neuter forms.

 

 

25
 

 

38.4         Modifications and Waivers. No change, modification, or waiver of any provision of this Lease shall be valid or binding unless it is in writing dated after the date hereof and signed by the parties intended to be bound. No waiver of any breach, term, or condition of this Lease by either party shall constitute a subsequent waiver of the same or any other breach, term, or condition.

 

38.5        Implied Warranties. OTHER THAN AS SET FORTH IN THIS LEASE, TENANT AND LANDLORD EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.

 

38.6        Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns. This provision shall not be deemed to grant Tenant any right to assign this Lease or sublet the Premises or any part thereof other than as provided in this Lease.

 

38.7        Severability. To the fullest extent possible each provision of this agreement shall be interpreted in such fashion as to be effective and valid under applicable law. If any provision of this Lease is declared void or unenforceable with respect to particular circumstances, such provision shall remain in full force and effect in all other circumstances. If any provision of this Lease is declared void or unenforceable, such provision shall be deemed severed from this Lease, which shall otherwise remain in full force and effect.

 

38.8        Governing Law and Jurisdiction. Except where preempted by the laws of the United States or the rules or regulations of any agency or instrumentality thereof, this Lease is to be interpreted, construed and governed by the laws of the State of Arizona. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the Superior Court of the State of Arizona for the County of Coconino in connection with any legal action or proceeding arising out of or relating to this Lease and the parties waive any objection relating to the basis for personal or in rem jurisdiction or to venue which it may now or hereafter have in any such suit, action or proceeding.

 

38.9        Entire Agreement. This instrument constitutes the sole and only agreement between Landlord and Tenant respecting the Premises, the leasing of the Premises to the Tenant, or the Lease term herein specified, and correctly sets forth the obligations of the Landlord and Tenant to each other as of its date. Any agreements or representations by the Landlord to the Tenant not expressly set forth in this instrument are void and unenforceable. All prior agreements and understanding of the parties with respect to such subject matter are hereby superseded. No representations, promises, agreements, or understandings contained in this Lease regarding the subject matter hereof shall be of any force or effect unless in writing, executed by the party to be bound, and dated on or subsequent to the date hereof. Captions and headings are for convenience only and shall not alter any provision or be used in the interpretation of this Lease.

 

26
 

 

38.10       Time is of the Essence. Time is of the essence of this Lease and each and every provision hereof. Any extension of time granted for the performance of any duty under this Lease shall not be considered an extension of time for the performance of any other duty under this Lease.

 

38.11       Brokers. Tenant represents and warrants that it has not entered into any agreement with, nor otherwise had any dealings with, any broker or agent in connection or execution of this Lease which could form the basis of any claim by any such broker or agent for a brokerage fee or commission, finder's fee, or any other compensation of any kind or nature in connection with this Leasehold.

 

LANDLORD:   TENANT:
     
CANYON PORTAL II, L.L.C.,   L’AUBERGE ORCHARDS, LLC,
an Arizona limited liability company   an Arizona corporation
     
By: /s/ Al Spector   By: /s/ Al Spector
  Al Spector     Al Spector
Its: Manager   Its: Manager

 

 

27
 

 

List of Exhibits

 

A.           Project Site Plan

 

 
 

 

 

 
 

 

 

Exhibit Gii

 

 

AMENDMENT TO LEASE

 

(Temporary Housing Units)

 

THIS AMENDMENT TO LEASE (“Amendment”) executed and effective as of May 14, 2013 by and between Canyon Portal II, L.L.C., an Arizona limited liability company (“Landlord”) and L’Auberge Orchards LLC, an Arizona limited liability company (“Tenant”).

 

WHEREAS, Landlord and Tenant entered into that certain Lease dated April 1, 2012 (“Original Lease”), whereby Landlord leased to Tenant and Tenant leased from Landlord Units 418, 419, 436, 437 and 438 in that certain 40 unit hotel property located in Sedona, Arizona described in the Original Lease;

 

WHEREAS, Landlord and Tenant desire to further amend the terms of the Lease pursuant to the provisions of this Amendment.

 

NOW, THEREFORE, in consideration of the above recitals, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

 

1. Permitted Use. The Permitted Use set forth in Section 1 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Housing Units for employees or overnight lodging units.”

 

2. Rent. The total gross monthly rent (inclusive of minimum base rent, common area charges and all other additional rent) payable in accordance with the Lease shall be $3,100 for the period commencing on the date hereof through the fifth (5th) anniversary of the date hereof. Thereafter, the total gross monthly rent payable under this Lease shall be adjusted in accordance with that portion of Section 5.1.B. of the Original Lease beginning with the second sentence of such Section 5.1.B.

 

3. Lease Term.

 

(a) The Lease Term is hereby extended to December 31, 2040.

 

(b) Landlord grants to Tenant the right to extend the Lease Term for three (3) additional periods of ten (10) years each. Each extension shall be upon the same terms and conditions as the Original Lease, as modified by this Amendment.

 

(c) Notwithstanding anything herein or in the Original Lease to the contrary, Tenant shall have the right to terminate this Lease at any time upon thirty (30) days prior written notice to Landlord.

 

4. Approval of Financial Statement. Section 3.2 of the Original Lease is hereby deleted in its entirety.

 

5. Name Change. Notwithstanding the provisions Section 3.4 of the Original Lease to the contrary, Landlord shall not have the right to change the name of the Premises.

 

1
 

 

6. Parking Policy. The two (2) parking spaces for Tenant’s exclusive use provided in Section 7.2 of the Original Lease are identified on Exhibit A attached hereto and Landlord shall, at Landlord’s expense, install signage in front of such exclusive parking spaces designating them for the exclusive use of the Premises.

 

7. Parking Charges. Section 7.3 of the Original Lease is hereby deleted in its entirety.

 

8. Prohibited Conduct. Section 8.2(A) of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Use or operate any machinery that, in Landlord’s opinion, is harmful to the Premises or the Project or disturbing to other tenants in the building of which the Premises is a part; use any loud speakers, televisions, stereos, radios or other devices in a manner so as to be heard from outside the Premises.”

 

9. Prescribed Conduct.

 

(a)          Section 8.3(B) of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Upon Tenant becoming aware of any accident, fire, pest infestation, or damage occurring on or to the Premises, Tenant shall give Landlord prompt written notice of any such accident, fire, pest infestation, or damage.”

 

(b)          Landlord’s exercise of discretion pursuant to Section 8.3(C) of the Original Lease shall be made in a commercially reasonable manner.

 

(c)          Section 8.3(D) of the Original Lease is hereby deleted in its entirety.

 

10. Written Approval of Tenant Alterations. Section 9.3 of the Original Lease is hereby amended to including the following: “Notwithstanding the foregoing to the contrary, Landlord’s approval of any request by Tenant to make any alterations, additions or improvements to the Premises shall not be unreasonably withheld, conditioned or delayed and Landlord shall not have the right to require Tenant, or its contractor, to secure a labor and materials payment bond for any alterations, additions or improvements to the Premises the value of which is Two Hundred Fifty Thousand Dollars ($250,000) or less in any single instance. Tenant agrees to not make any payment for such alterations, additions or improvements without obtaining lien waivers for labor or materials .”

 

11. Premises Utilities. Notwithstanding anything provided in Section 10.5 of the Original Lease to the contrary, Landlord shall, at Landlord’s expense, cause to be provided to the Premises all water (hot and cold), gas, sewer, and electricity service necessary for the operation of the Premises for the Permitted Use.

 

12. Tenant’s Maintenance Obligation. The terms “store front” and “plate glass” are hereby deleted from section 12.1 of the Original Lease.

 

2
 

 

13. Insurance.

 

(a)          Notwithstanding Section 15.1 of the Original Lease to the contrary, Landlord shall maintain the insurance coverages provided in Section 15.1 and such coverages for general liability, bodily injury and property damage shall be in an amount of not less than $3,000,000 and fire and extended coverage in an amount not less than the full replacement cost of the Premises.

 

(b)          Section 15.3(B) of the Original Lease is hereby deleted in its entirety.

 

14. Repair. Section 15.7 of the Lease is hereby deleted in its entirety.

 

15. Damage or Destruction. Article 16 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“If all or any portion of the Premises or the Project is damaged by fire or other casualty insurable under a standard fire insurance policy with a standard extended coverage endorsement, Minimum Monthly Rental and Additional Rent shall abate and Landlord shall promptly repair as is necessary to replace the Premises and when placed in such condition the Premises shall be deemed restored and rendered tenantable, such repair or rebuilding to be commenced within a reasonable time after the occurrence. If such damage occurs in the last two years of the Lease Term or during any Option Term, Tenant or Landlord shall have the option of terminating the Lease upon written notice to the other party. If Landlord’s Lender requires that the insurance proceeds be used to retire the debt, Landlord shall have no obligation to rebuild, and this Lease shall terminate upon notice to Tenant. Promptly following Landlord’s repair or rebuilding, Tenant, at Tenant’s sole expense, shall repair or replace its stock in trade, fixtures, furniture, furnishings, floor coverings and equipment, and if Tenant has closed, Tenant shall promptly reopen for business.”

 

16. Indemnification.

 

a. Section 18.1 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

By Tenant.Excepting any responsibility allocated to Landlord by reason of its gross negligence (excluding from this exception, however, any responsibility allocated to Landlord by reason of its failure to enforce the terms of this Lease), Tenant shall indemnify, defend and hold Landlord harmless for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses) imposed upon or asserted against Landlord by reason of the gross negligence or willful misconduct of Tenant, its agents, employees, contractors, suppliers, licensees, invitees and guests and/or the occurrence of any of thefollowing during the Term: (i) any use, non-use or condition of the Premises or any part thereof; (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Premises or any part thereof; (iii) any failure on the part of Tenant to perform or comply with any of the provisions of this Lease; (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Landlord and unrelated to a default of Tenant under this Lease); or (v) any failure on the part of Tenant to clean up and/or dispose of any Hazardous Materials, as described in Section 13.2 above, in accordance with the requirements of this Lease and applicable law. In the event Landlord should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Tenant shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Tenant but approved by Landlord. If any such action, suit or proceeding should result in a final judgment against Landlord, Tenant shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Tenant under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.”

 

3
 

 

b. Section 18.2 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

By Landlord.Landlord shall save, hold harmless and indemnify Tenant for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or asserted against Tenant by reason of the gross negligence or willful misconduct of Landlord or its agents, contractors, servants or employees and/or the occurrence of any of the following during the Term: (i) any use or condition of the Premises or any part thereof (which Landlord is required to maintain); (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Common Areas; (iii) any failure on the part of Landlord to perform or comply with any of the provisions of this Lease; and (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Tenant). In the event Tenant should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Landlord shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Landlord but approved by Tenant. If any such action, suit or proceeding should result in a final judgment against Tenant, Landlord shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Landlord under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.”

 

17. Waiver of Subrogation. Except with respect to Worker’s Compensation, to which no waiver of subrogation will apply, each party hereby waives any and every right or cause of action for the events which occur or accrue during the Lease Term for any and all loss of, or damage to, any of its property (whether or not such loss or damage is caused by the fault or negligence of the other party or anyone for whom said other party may be responsible), which loss or damage is covered by valid and collectible fire, extended coverage, “All Risk” or similar policies covering real property, personal property or business interruption insurance policies, to the extent that such loss or damage is recovered under said insurance policies. Said waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss or damage to property of the parties hereto. Written notice of the terms of such mutual waivers shall be given to each insurance carrier and the insurance policies shall be properly endorsed, if necessary, to prevent the invalidation of coverage by reason of said waivers.

 

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18. Assignment and Subletting. Article 19 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Tenant shall have the right to transfer or assign this Lease or sublet all or any portion of the Premises without Landlord’s consent, but with prior written notice to Landlord; provided, the assignee or subtenant expressly assumes all obligations of Tenant under the Lease. Notwithstanding the foregoing, Landlord shall not have the right to consent to any assignment or subletting of this Lease or any portion of the Premises to an entity which controls, is controlled by or is under common control with Tenant, and Landlord shall not withhold its consent to any proposed assignee or subtenant with financial wherewithal equal to or superior to that of Tenant and who is actively engaged in the hospitality industry.”

 

19. Event of Default. Section 21.1(I) of the Original Lease is hereby deleted in it entirety.

 

20. Estoppels. The period in which Tenant must respond to a request for an estoppel pursuant to Section 34 of the Lease is hereby modified from three (3) days to ten (10) business days. In the event Tenant fails to respond within such ten (10) business day period, Tenant shall be deemed in default under Section 21.1 of the Lease, but in no event will Tenant’s failure to respond be deemed an acknowledgement of any proported facts contained in any form estoppel .

 

21. Conflicting Terms. In the event of any conflict, inconsistency or ambiguity between the terms of this Amendment and the Lease, the terms of this Amendment shall control.

 

22. Defined Terms. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Lease.

 

23. Multiple Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument.

 

24. Ratification. Except as expressly modified by this Amendment, the Lease remains unmodified and in full force and effect.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year above first written.

 

“Landlord”

 

Canyon Portal II, LLC, an Arizona limited liability company

 

By: /s/ Al Spector  
     
Name: Al Spector  
     
Title: Manager  

 

“Tenant”)

 

L’Auberge Orchards LLC, an Arizona limited liability company

 

By: /s/ Al Spector  
     
Name: Al Spector  
     
Title: Manager  

 

6
 

 

 

 

Housing Units 418, 419, 436, 437 & 438

280 N. Highway 89A

 

LEASE

 

SEDONA, ARIZONA

 

Landlord: Canyon Portal II, L.L.C.

 

Tenant: L'Auberge Orchards LLC

 

Date: April 1, 2012

 

 
 

 

TABLE OF CONTENTS

 

SECTION 1 – FUNDAMENTAL LEASE PROVISIONS   1
     
SECTION 2 – PREMISES   2
     
SECTION 3 – GENERAL PROVISIONS   2
3.1 No Option   2
3.2 Approval of Financial Statement   2
3.3 No Co-Tenancy Requirement   2
3.4 Name Change   2
       
SECTION 4 – LEASE TERMS   3
4.1 Term   3
4.2 Delay in Commencement   3
4.3 Holding Over   3
4.4 Abandonment   3
4.5 Surrender of Premises   3
4.6 Extension of Term   3
       
SECTION 5 – RENT, SECURITY DEPOSIT   3
5.1 Rent   3
5.2 Security Deposit   4
5.3 (Deleted)   4
5.4 Additional Rent   5
       
SECTION 6 – NO COUNTERCLAIM OR ABATEMENT OF RENT   5
6.1 No Notice   5
6.2 No conditional Payment   5
       
SECTION 7 – COMMON AREAS   5
7.1 Use of Common Areas   5
7.2 Parking Policy   6
7.3 Parking Charges   6
       
SECTION 8 – USE OF PREMISES   6
8.1 Use   6
8.2 Prohibited Conduct   6
8.3 Prescribed Conduct   6
8.4 Operation of Premises – Intentionally Deleted   7
       
SECTION 9 – TENANT’S CONSTRUCTION FO IMPROVEMENTS   7
9.1 Tenant’s Obligation   7
9.2 Intentionally Deleted   7
9.3 Written Approval   7
9.4 Trade Fixtures   7

 

 
 

 

SECTION 10 – TENANT OBLIGATIONS   8
10.1 Payment by Tenant   8
10.2 Payment by Landlord   8
10.3 Proof of Payment   8
10.4 Personal Property Taxes   8
10.5 Premises Utilities   8
10.6 Merchants Association   8
       
SECTION 11 – COMMON AREA MAINTENANCE – Intentionally Deleted   9
       
SECTION 12 – MAINTENANCE AND REPAIRS BY TENANT   9
12.1 Tenant’s Obligation   9
12.2 Prohibited Acts   9
12.3 Rights of Landlord   9
       
SECTION 13 – REPAIR BY LANDLORD   9
13.1 Repair by Landlord   9
13.2 Hazardous Materials   10
       
SECTION 14 – LIENS   11
14.1 No Liens   11
14.2 Tenant’s Obligations   11
14.3 Removal of Liens   11
       
SECTION 15 – INSURANCE   11
15.1 Project Insurance   11
15.2 Tenant’s Property   12
15.3 Tenant’s Operations   12
15.4 Certificate of Insurance   12
15.5 Insurance Companies   12
15.6 Failure to Procure Insurance   13
15.7 Repair   13
       
SECTION 16 – DAMAGE OR DESTRUCTION   13
16.1 Tenant Obligations   13
16.2 Lease Termination   14
       
SECTION 17 – EASEMENTS   14
       
SECTION 18 – INDEMNIFICATION   14
18.1 By Tenant   14
18.2 By Landlord   15
18.3 Waiver of Claims   15

 

 
 

 

SECTION 19 – ASSIGNMENT AND SUBLETTING   15
19.1 Landlord Consent   15
19.2 In Writing   16
19.3 Transfer Limitation   16
19.4 Deleted   16
       
SECTION 20 – SUBJECT TO MASTER LEASE   16
       
SECTION 21 – DEFAULTS BY TENANT   16
21.1 Event of Default   16
21.2 Re-Enter of Premises   18
21.3 Lease Termination   18
21.4 Reletting   18
21.5 Survival of Liability   18
21.6 Cumulative Remedies   19
21.7 Sublessee Defaults   19
21.8 Repetitive Rent Payment Defaults   19
21.9 Cure Period   20
21.10 Late Charges   20
       
SECTION 22 – CONDEMNATION   20
       
SECTION 23 – TENANT’S WAIVER OF STATUTORY RIGHTS   20
       
SECTION 24 – WAIVER OF PERFORMANCE   21
       
SECTION 25 – REMEDIES CUMULATIVE   21
       
SECTION 26 – CONVEYANCE BY LANDLORD   21
       
SECTION 27 – NO PERSONAL LIABILITY TO LANDLORD   21
     
SECTION 28 – ATTORNEYS’ FEES   21
     
SECTION 29 – PROVISIONS SUBJECT TO APPLICABLE LAW   22
     
SECTION 30 – RIGHT TO CURE TENANT’S DEFAULTS   22
     
SECTION 31 – NOTICES   22
     
SECTION 32 – SIGNS   23
     
SECTION 33 – LANDLORD’S INSPECTIONS   23
33.1 Inspection   23
33.2 Presenting for Sale or Lease   23
       
SECTION 34 – ESTOPPEL CERTIFICATE   23

 

 
 

 

SECTION 35 – WAIVER OF TRIAL BY JURY   24
     
SECTION 36 – RECORDING   24
     
SECTION 37 – SUBORDINATION   24
     
SECTION 38 – MISCELLANEOUS   25
38.1 Definition of Tenant   25
38.2 Tenant   25
38.3 Gender and Number   25
38.4 Modifications and Waivers   25
38.5 Implied Warranties   25
38.6 Binding Effect   25
38.7 Severability   25
38.8 Governing Law and Jurisdiction   26
38.9 Entire Agreement   26
38.10 Time is of the Essence   26
38.11 Brokers   26

 

 
 

 

CANYON PORTAL II, L.L.C.

LEASE

 

SECTION 1 - FUNDAMENTAL LEASE PROVISIONS.

 

Landlord: Canyon Portal II, L.L.C., an Arizona limited liability company
   
Tenant: L'Auberge Orchards LLC, an Arizona limited liability company
   
Trade Name: N/A
     
Lease Term: Commencement Date: April 1, 2012
     
  Termination Date: March 31, 2017
     
  Rent Commencement Date: April 1, 2012
     
Premises: 5 hotel room units known as units 418, 419, 436, 437 and 438, and further reflected on Exhibit A.

 

Minimum Monthly Base Rental: Tenant shall pay to Landlord Ten Thousand Dollars ($10,000.00) on April 1, 2012. Beginning May 1, 2012 the Minimum Monthly Base Rental shall be Three Thousand Dollars ($3,000.00) for the period of May 1, 2012 through December 31, 2012. Thereafter, Rent shall be adjusted in accordance with Paragraph 5.1B.

 

Security Deposit: None Required

 

Address of Landlord: Canyon Portal II, L.L.C.
  6900 E. Camelback Road, #915
  Scottsdale, AZ 85251
  Telephone: (480) 941-0221
  Fax: (480) 990-9093

 

Address of Tenant: L'Auberge Orchards, LLC
  301 L'Auberge Lane
  Sedona, AZ 86336
  Telephone: (928) 204-4313
  Fax: (928) 282-1064

 

Only Permitted Uses: Housing Units for employees of L'Auberge and/or Orchards
   
Guarantors: None

 

 
 

 

The foregoing Fundamental Lease Provisions are an integral part of this Lease, and each reference in the body of the Lease to any Fundamental Lease Provision shall be construed to incorporate all of the terms set forth above with respect to such Provisions.

 

SECTION 2 - PREMISES.

 

Subject to the conditions set forth herein, Landlord hereby leases to Tenant the Premises. A site plan showing the boundaries of the Premises and its relative location within a larger commercial development comprised of four elements including the Trading Post Shops, Canyon Portal Shops, North Retail Building, and Orchards (the "Project") is attached hereto as Exhibit A. Tenant's acceptance of the Premises and Agreement to the terms of this Lease are not conditioned upon any representation by Landlord of the number of square feet in the Premises. TENANT ACKNOWLEDGES THAT IT HAS INSPECTED THE PREMISES, IS FAMILIAR WITH ITS CONDITION AND ACCEPTS THE PREMISES IN ITS PRESENT CONDITION "AS IS." EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD HAS MADE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PREMISES OR THE PROJECT.

 

SECTION 3 - GENERAL PROVISIONS.

 

3.1           No Option. The submission of this Lease by Landlord, its agent or representative for examination or execution by Tenant does not constitute an option or offer to lease the Premises upon the terms and conditions contained herein or a reservation of the Premises in favor of Tenant, it being intended hereby that this Lease shall become binding upon Landlord only upon Landlord's delivery to Tenant of a fully executed counterpart hereof.

 

3.2           Approval of Financial Statement. This Lease is subject to Landlord's and Landlord's Lender's approval of a current financial statement of Tenant. Tenant agrees to execute any and all documents Landlord's Lender may require and provide Landlord and Landlord's Lender with credit and financial information as requested.

 

3.3           No Co-Tenancy Requirement. Landlord reserves the right to effect such tenancies in the Project as Landlord, in the exercise of its sole business judgment, shall determine to best promote the interest of the Project. Tenant is not relying on the fact, nor does Landlord represent, that any specific tenant or kind of tenant or number of tenants shall, during the term of this lease, occupy any space in the Project.

 

3.4           Name Change. Landlord reserves the right to change the name of the Project from time to time during the term of this Lease.

 

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SECTION 4 - LEASE TERM

 

4.1          Term. The term of this Lease (herein called the "Lease Term" or the "Term") shall commence on the Commencement Date unless the Term is terminated sooner or extended as hereinafter provided.

 

4.2          Delay in Commencement. If Landlord, for any reason whatsoever, cannot deliver possession of the Premises to Tenant at the commencement of the Lease Term, this Lease shall not be void or voidable, nor shall Landlord be liable for any loss or damage resulting therefrom. In the event of a delay in possession; however, there shall be a proportionate reduction of rent covering the period between the commencement of the Lease Term and the time when Landlord can deliver possession of the Premises. Notwithstanding the foregoing, no delay caused by the action or inaction of Tenant or Tenant's agents shall result in a reduction of rent.

 

4.3          Holding Over. If Tenant, upon expiration or termination of this Lease, either by lapse of time or otherwise, remains in possession of the Premises with Landlord's written consent, but without a new lease reduced to writing and duly executed, Tenant shall be deemed to be occupying the Premises as a tenant from month to month, subject to all covenants, conditions and provisions of this Lease. If Tenant remains in possession without Landlord's written consent, Tenant shall be deemed to be in wrongful hold over and shall be subject to all the rights and remedies provided to Landlord under this Lease and by law, including but not limited to forcible entry and detainer actions or other eviction processes. During any hold over period, whether with consent or wrongful, the monthly rent shall be two hundred percent (200%) of Tenant's monthly rent payable during the last month of the Term of this Lease.

 

4.4          Abandonment. If Tenant, prior to the expiration of this Lease, relinquishes possession of the Premises without Landlord's written consent, such relinquishment shall be deemed to be an abandonment of the Premises and an Event of Default under this Lease.

 

4.5          Surrender of Premises. Upon any termination of this Lease for any reason, Tenant shall immediately surrender possession of the Premises to Landlord in good and tenantable repair, reasonable wear and tear excepted, and shall surrender all keys and all copies of such keys for the Premises to Landlord at the place then fixed for the payment of rent or other agreed upon location.

 

4.6          Extension of Term. None

 

SECTION 5 - RENT. SECURITY DEPOSIT.

 

5.1          Rent.

 

A.           Tenant shall pay to Landlord the Minimum Annual Base Rental set forth in Section 1 of this Lease in twelve (12) equal monthly installments during each Lease Year, in advance, on the first day of each calendar month. The Minimum Annual Base Rental and Additional Charges hereinafter provided for shall be paid in lawful money of the United States to Landlord at its address or at such other place as Landlord may from time to time designate in writing.

 

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B.           The rent provided for in this Section 5.1 shall be subject to adjustment as described herein commencing January 1, 2013. The base for computing the adjustment is the Consumers' Price Index for All Urban Consumers, United States Cities Average published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), which is in effect on the date of the commencement of the first day of the previous Lease year ("Beginning Index"). For example, the adjustment for year two would be based on the Index for the first day of Lease year one. The Index published most immediately preceding the Adjustment Date in question ("Extension Index") is to be used in determining the amount of the adjustment. If the Extension Index has increased over the Beginning Index, the base monthly rent for the following year shall be set by multiplying the base monthly rent for the previous year, e.g., for the 12th Lease month, by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. However, the adjustment to the rent shall be no less than three percent (3%) compounded per annum of the base monthly rent provided in this Lease. As an example, if year one monthly rent is $1,000.00 and the three percent (3%) is applicable each year, then monthly rent for years two through five would be: year two $1,030.00; year three - $1,060.90; year four - $1,092.73; and year five $1,125.52.

 

If the Index is changed so that the base year differs from that in effect when the Term commences, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the Term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.

 

C.           Monthly rent for the first month shall be paid on the date the Term commences. Monthly rent for any partial month shall be prorated at the rate of one-thirtieth (1/30) of the monthly rent per day.

 

D.           All rental amounts are "net" rent to Landlord. All Additional Charges (as described in this Lease) shall be deemed rent whether or not expressly designated as such, and shall be paid in addition to the Minimum Annual Base Rental at the times and in the manner provided for in this Lease.

 

5.2.         Security Deposit. None Required.

 

5.3          (Deleted).

 

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5.4           Additional Rent. In the event any additional usable square footage is acquired by the Tenant in its Premises due to alterations of or improvements made on the original Premises (by way of example, the addition of a loft), the Minimum Annual Base Rent payable by Tenant to Landlord under this Lease shall be increased, on a proportionate basis, to include the additional square footage utilized by the Tenant.

 

SECTION 6 - NO COUNTERCLAIM OR ABATEMENT OF RENT.

 

6.1           No Notice. Except as expressly provided herein, monthly rental and Additional Charges and all other sums payable by Tenant shall be paid without notice, demand, counterclaim, setoff, recoupment, deduction or defense of any kind or nature and without abatement, suspension, deferment, diminution or reduction. Except as expressly provided herein, Tenant waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease or the Premises or any part thereof and to any abatement, suspension, deferment, diminution or reduction of any sum payable by Tenant to Landlord.

 

6.2           No Conditional Payment. NO PAYMENT BY TENANT OR RECEIPT BY LANDLORD OF A LESSER AMOUNT THAN THE TOTAL OF ALL SUMS DUE HEREUNDER SHALL BE DEEMED TO BE OTHER THAN AN ACCOUNT OF THE EARLIEST STIPULATED RENT, NOR SHALL ANY ENDORSEMENT OR STATEMENT ON ANY CHECK, OTHER PAYMENTS OR ANY ACCOMPANYING LETTER BE DEEMED AS ACCORD AND/OR SATISFACTION AND LANDLORD MAY ACCEPT SUCH CASH AND/OR NEGOTIATE SUCH CHECK OR PAYMENT WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO RECOVER THE BALANCE OF SUCH RENT OR PURSUE ANY OTHER REMEDY PROVIDED IN THIS LEASE OR OTHERWISE, REGARDLESS OF WHETHER LANDLORD MAKES ANY NOTATION ON SUCH INSTRUMENT OF PAYMENT OR OTHERWISE NOTIFIES TENANT THAT SUCH ACCEPTANCE, CASHING OR NEGOTIATION OF SUCH PAYMENT IS WITHOUT PREJUDICE TO ANY OF LANDLORD'S RIGHTS. TENANT SPECIFICALLY WAIVES THE PROVISIONS OF A.R.S. 47-1207.

 

SECTION 7 - COMMON AREAS.

 

7.1           Use of Common Areas. All facilities furnished by Landlord in the Project and designated for the general common use of occupants of the Project, including Tenant hereunder, its officers, agents, employees and customers, shall at all times be subject to the exclusive control and management of Landlord. Landlord shall have the right, from time to time, to change the area, level, location and arrangement of parking areas and other Common Area facilities and to make all rules and regulations pertaining to and necessary for the proper operation and maintenance thereof. Landlord shall have the exclusive right at any and all times to close any portion of the Common Areas for the purpose of making repairs, changes or additions thereto; may change the size, area or arrangement of the Common Areas; and may enter into agreements as Landlord deems appropriate for parking and ingress or egress.

 

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7.2          Parking Policy. There will be reserved for Tenant two (2) parking spaces which are exclusively reserved on a 24 hour a day basis.

 

7.3          Parking Charges. Landlord will establish a reasonable schedule of fees for all parking spaces in the Project in order to provide parking for tenants, tourists and periodic visitors to the Project. Notwithstanding anything contained herein to the contrary, Landlord has the right to meter the parking lot of the Project and charge an hourly fee to anyone who parks a vehicle in the lot. Landlord reserves the right to regulate the parking at the Project to ensure that the parking lot is used on a long term basis by customers of the Project and not tenants, employees, or the general public.

 

SECTION 8 - USE OF PREMISES.

 

8.1          Use. Tenant shall use the Premises solely for the Permitted Uses set forth in the Fundamental Lease Provisions and not for any other purpose. Tenant shall not use or permit the Premises to be used in violation of the laws, ordinances, regulations and requirements of the United States, the State of Arizona, Coconino County, the City of Sedona or any subdivision or department thereof or any other authority or agency having jurisdiction over the Premises or the Project.

 

8.2          Prohibited Conduct. Except by prior written consent of Landlord, Tenant shall not:

 

A.           Use or operate any machinery that, in Landlord's opinion, is harmful to the Premises or the Project or disturbing to other tenants in the building of which the Premises is a part; use any loud speakers, televisions, stereos, radios or other devices in a manner so as to be heard or seen outside the Premises.

 

B.           Do or suffer to be done any act, matter or thing objectionable to the fire, casualty or liability insurance carriers whereby any insurance now in force or hereafter to be placed on the Premises or the Project, or any part thereof, shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the date when Tenant receives possession of the Premises. In case of a breach of this covenant, in addition to all other remedies of Landlord hereunder, Tenant agrees to pay to Landlord as additional rent any and all increase or increases of premiums on insurance carried by Landlord on the Premises or the Project.

 

C.           Do or cause to be done any act, matter or thing in violation of any federal, state, county or local law, statute, regulation, rule or ordinance.

 

8.3          Prescribed Conduct. At all times throughout the Lease Term, Tenant shall:

 

A.           Comply with any and all requirements of any of the constituted public authorities and with the terms of any state or federal statute or local ordinance or regulation applicable to Tenant or its use, safety, cleanliness or occupation of the Premises, and save Landlord harmless from penalties, fines, costs, expenses or damages resulting from Tenant's failure to do so.

 

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B.           Give Landlord prompt written notice of any accident, fire, pest infestation, or damage occurring on or to the Premises.

 

C.           Load and unload goods at such times in the areas and through such entrances as may be designated for "Delivery" by Landlord. Such trailers or trucks shall not be permitted to remain parked overnight in any area of the Project, whether loaded or unloaded. Designated fire lanes shall not be used for the loading or unloading of merchandise, parking or standing of running vehicles at any time. The unlawful use of such fire lanes may result in the towing of the offending vehicle and subject the owner or user thereof to all applicable fines established by the City of Sedona and/or Landlord.

 

D.           Comply with all reasonable rules and regulations of Landlord in effect at the time of the execution of this Lease or at any time or times, and from time to time, promulgated by Landlord which Landlord, in its sole discretion, shall deem necessary in connection with the Premises or the Project including but not limited to both the operation of Tenant's business during certain minimum days and hours.

 

8.4          Operation of Premises - Intentionally Deleted.

 

SECTION 9 - TENANT'S CONSTRUCTION OF IMPROVEMENTS.

 

9.1          Intentionally Deleted.

 

9.2          Intentionally Deleted.

 

9.3          Written Approval. Tenant shall not make or cause to be made any alterations, additions or improvements to the Premises, without first obtaining Landlord's written approval and consent. Tenant shall present to Landlord plans and specifications for such work at the time approval is sought. Landlord may condition its approval upon the requirement that Tenant, or its contractor, secure and bear the cost of a labor and materials payment bond. All alterations, improvements, additions and fixtures made or installed by Tenant shall remain upon the Premises at the expiration or earlier termination of this Lease and shall become the property of Landlord.

 

9.4          Trade Fixtures. Tenant shall not cut or drill into or secure any trade fixtures, apparatus or equipment of any kind to any part of the Premises without first obtaining the written consent of Landlord, which shall not be unreasonably withheld. All furnishings, equipment and machines installed by Tenant and that are not trade fixtures in the Premises shall remain the property of Tenant subject to any lien provided Landlord by law and shall be removed at the expiration or earlier termination of this Lease, or any renewal or extension thereof; provided, Tenant shall not at such time be in default under any covenant or agreement contained in this Lease and provided further that in the event of such removal, Tenant shall promptly restore the Premises to its original order and condition. Any such furnishings, trade fixtures, equipment and machines not removed at or prior to such termination of this Lease shall be and become the property of Landlord.

 

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SECTION 10 - TENANT OBLIGATIONS.

 

10.1         Payment by Tenant. Tenant shall pay and discharge punctually as and when the same shall become due and payable, each and every cost, expense and obligation of every kind and nature, foreseen or unforseen, arising out of the possession, operation, maintenance, alteration, repair, rebuilding, use or occupancy of the Premises. Tenant shall also pay and discharge punctually, as and when the same shall become due and payable without penalty, personal property, business, occupation and occupational license taxes, water, sewer, electricity and telephone charges and fees.

 

10.2         Payment by Landlord. Tenant shall not be required to pay or reimburse Landlord for (i) any local, state or federal capital levy, franchise tax, revenue tax, income tax, or profits tax of Landlord unless and to the extent such levy, tax or imposition is in lieu of or a substitute for any other levy, tax or imposition now or later in existence upon or with respect to the Premises which, if such other levy, tax or impostion were in effect, would be payable by Tenant under the provisions hereof; (ii) any estate, inheritance, devolution, succession or transfer tax which may be imposed upon or with respect to any transfer (other than taxes in connection with a conveyance by Landlord to Tenant) of Landlord's interest in the Premises; or (iii) any lien not of record as of the Commencement Date arising from the unilateral acts or omissions of Landlord and unrelated to a default of Tenant under this Lease.

 

10.3         Proof of Payment. Tenant, upon Landlord's request, shall furnish to Landlord within thirty (30) days thereafter proof of the payment of any obligation to be paid by Tenant.

 

10.4         Personal Property Taxes. Tenant shall be responsible for and shall pay before delinquency all taxes levied or assessed against any leasehold interest or personal property of any kind owned or placed in, upon or about the Premises by Tenant. Tenant hereby agrees to protect and hold harmless Landlord and the Premises from any liability for Tenant's share of any and all such taxes, assessments and charges together with any interest, penalties or other charges thereby imposed, and from any sale or other proceedings to enforce payment thereof, and to pay all such taxes, assessments and charges before delinquency and before same become a lien.

 

10.5         Premises Utilities. Landlord pays utilities for the property, which average approximately Three Hundred Dollars ($300.00) per month per unit. In no event shall Landlord be liable for any interruption or failure in the supply of any utilities to the Premises.

 

10.6         Merchants Association. Not Applicable

 

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SECTION 11 - COMMON AREA MAINTENANCE. - Intentionally Deleted

 

SECTION 12 - MAINTENANCE AND REPAIRS BY TENANT.

 

12.1         Tenant's Obligation. Tenant shall keep and maintain in good order, condition and repair (including any such replacement, periodic painting and restoration as is required for that purpose) the Premises and every part thereof and any and all appurtenances thereto wherever located, including but not limited to, the exterior and interior portion of all doors, door checks, door locks, windows, plate glass, store front, all plumbing and sewage facilities within the Premises, all alterations, improvements and installations made by Tenant and any repairs required to be made due to burglary or other illegal entry into the Premises. Tenant shall maintain and bear the expense of the light fixtures and bulbs, air-conditioning unit and filters, heating unit or furnace, janitorial services, interior pest control, and the like.

 

12.2         Prohibited Acts. Tenant shall not cause or permit accumulation of any debris or extraneous matter on the roof of the Premises and will be responsible for any damage caused thereto by any acts of Tenant, its agents, servants, employees or contractors. Tenant shall place any rubbish, broken down boxes, trash or other excess matter only in such containers as are authorized from time to time by Landlord; keep the Premises (including all exterior surfaces and both sides of all glass) clean, orderly, sanitary and free from objectionable odors and from insects, vermin, and other pests; and keep the outside areas and sidewalks immediately adjoining the Premises clean and free from empty boxes, trash of any kind, ice and any other obstructions or safety hazards.

 

12.3         Rights of Landlord. If Tenant refuses or fails to commence and complete repairs or maintenance required herein promptly and adequately, Landlord may, but shall not be required to, make and complete the repairs or perform the maintenance. The cost of such repairs or maintenance shall be paid immediately by Tenant to Landlord as additional rent upon demand.

 

SECTION 13 - REPAIR BY LANDLORD.

 

13.1         Repair by Landlord. Landlord shall keep and maintain the foundation, exterior walls, floors and roof of the building in which the Premises are located exclusive of doors, door frames, door checks, door locks, windows and window frames located in exterior building walls. Landlord shall not, however, be required to make any such repairs when such repairs are the result of misuse or neglect by Tenant, its agents, employees, invitees, licensees or contractors. Any repairs required to be made by reason of such Tenant misuse or neglect shall be the responsibility of Tenant, the above provisions to the contrary notwithstanding. Except as provided herein, Landlord shall have no obligation to alter or modify the Premises, or any part thereof, or to repair and maintain any plumbing, heating, electrical, air-conditioning or other mechanical installation in the Premises. Under no circumstances shall Landlord be obligated to repair, replace or maintain any plate glass or door or window glass no matter what the cause.

 

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13.2         Hazardous Materials. Exclusive of Hazardous Materials normally associated with Tenant's permitted use, if any, Tenant covenants and agrees not to use, generate, release, manage, treat, manufacture, store, or dispose of, on, under or about, or transport to or from (any of the foregoing hereinafter a "Use") the Premises any Hazardous Materials (other than "De Minimis" amounts (as defined below)). Tenant further covenants and agrees to pay all costs and expenses associated with enforcement, removal, remedial or other governmental or regulatory actions, agreements or order threatened, instituted or completed pursuant to any Hazardous Materials Laws, and all audits, tests, investigations, cleanup, reports and other such items incurred in connection with any efforts to complete, satisfy or resolve any matters, issues or concerns, whether governmental or otherwise, arising out of or in any way related to the Use of Hazardous Materials in any amount by Tenant, its employees, agents, invitees, subtenants, licensees, assignees or contractors. For purposes of this Lease (i) the term "Hazardous Materials" shall include but not be limited to asbestos, urea formaldehyde, polychlorinated biphenyls, automotive and petroleum products and byproducts (including, without limitation, gasoline, diesel and other fuels, new, used and recycled oil, grease, brake fluid, antifreeze, and other automotive fluids installed in or recovered from service vehicles or otherwise, and any other fuel additive, derivative, lubricant or byproduct generated, stored or used in Tenant's business operation or otherwise occurring), pesticides, radioactive materials, hazardous wastes, toxic substances and any other related or dangerous toxic or hazardous chemical, material or substance defined as hazardous or regulated or as a pollutant or contaminant in, or the use of or exposure to which is prohibited, limited, governed or regulated by, any Hazardous Materials Laws; (ii) the term "De Minimis" amounts shall mean, with respect to any given level of Hazardous Materials, that such level or quantity of Hazardous Materials in any form or combination of forms (a) does not constitute a violation of any Hazardous Materials Laws; and (b) is customarily employed in, or associated with, similar retail projects in Coconino County, Arizona; and (iii) the term "Hazardous Materials Laws" shall mean any federal, state, county, municipal, local or other statute, law, ordinance or regulation now or hereafter enacted which may relate or legislate the protection of human health or the environment, including but not limited to the Comprehensive Environment Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et leg.; the Toxic Substances Control Act of 1976, 15 U.S.C. Section 2601, et seq.; Ariz. Rev. Stat. Ann. Title 49 (The "Arizona Environmental Quality Act of 1986"); and any rules, regulations or guidelines adopted or promulgated pursuant to any of the foregoing as they may be adopted, amended or replaced from time to time.

 

 

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SECTION 14 - LIENS.

 

14.1         No Liens. Tenant shall have no authority to do any act or make any contract which may create or be the basis for any lien, mortgage or other encumbrance upon any interest of Landlord in the Premises or which would cause any document to be recorded against the Premises or the Project. Should Tenant cause any construction, alterations, rebuildings, restorations, replacements, changes, additions, improvements or repairs to be made on the Premises, or cause any labor to be performed or material to be furnished thereon, therein or thereto, neither Landlord nor the Premises shall under any circumstances be liable for the payment of any expense incurred or for the value of any work done or material furnished, and Tenant shall be solely and wholly responsible to contractors, laborers and materialmen for performing such labor and furnishing such material.

 

14.2         Tenant's Obligations. The initial and any subsequent alterations or improvements made by Tenant to the Premises must be paid for by Tenant when such alterations or improvements are made. Nothing in this Lease shall be construed to authorize Tenant, or any person dealing with or under Tenant, to charge the rents of the Premises, or the property and buildings of which the Premises form a part, or the interest of Landlord in the state of the Premises, with a mechanics' lien or encumbrance of any kind, and under no circumstances shall Tenant be construed to be the agent, employee or representative of the Landlord in the making of any such improvements or alterations to the Premises.

 

14.3         Removal of Liens. If, because of any act or omission (or alleged act or omission) of Tenant, any mechanic's, materialman's, or other lien, charge or order for the payment of money shall be filed or recorded against the Premises or against Landlord (whether or not such lien, charge or order is valid or enforceable as such), Tenant shall, at its own expense, either cause the same to be discharged of record pursuant to A.R.S. §33-1004, or otherwise cause such discharge, within ten (10) days after Tenant shall have received notice of the filing thereof, or Tenant may, within such period, furnish to Landlord a bond satisfactory to Landlord against such lien, charge or order, in which case Tenant shall have the right in good faith to contest the validity or amount thereof.

 

SECTION 15 - INSURANCE.

 

15.1         Project Insurance. Landlord bears the risk of and may insure as a Common Area Expense as practical or as required by Landlord's Lender, the operation of the Project as a whole or the common areas thereof. Such insurance may include, but is not limited to, general liability, umbrella excess liability, bodily injury, public liability, property damage liability, fire and extended coverage in amounts not less than eighty percent (80%) of the replacement cost of the Project, sign insurance and the like in coverage limits selected by Landlord. Tenant shall pay to Landlord its "Proportionate Share" of such insurance as provided in Section 11 above.

 

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15.2        Tenant's Property. Tenant agrees that all property owned by it in, on, or about the Premises shall be at the sole risk and hazard of the Tenant. Landlord shall not be liable or responsible for any loss or damage to Tenant, or anyone claiming under or through Tenant, or otherwise, whether caused by or resulting from a peril required to be insured hereunder, or from water, gas leakage, plumbing, electricity or electrical apparatus, pipe or apparatus of any kind, the elements or other similar or dissimilar causes, and whether or not originating in the Premises or elsewhere, irrespective of whether or not Landlord may be deemed to have been negligent with respect thereto, and provided such damage or loss is not the result of any intentional and wrongful act of Landlord. Tenant shall require all policies of risk insurance carried by it on its property in the Premises to contain or be endorsed with the provision in and by which the insurer designated therein shall waive its right of subrogation against Landlord.

 

15.3        Tenant's Operations. All operations conducted by Tenant shall be at Tenant's sole risk. In addition, Tenant shall procure insurance for its operations as follows:

 

A.           Tenant shall keep in force at its own expense public liability insurance and comprehensive general liability insurance, including contractual liability insurance sufficient to cover all phases and aspects of the operation and conduct of its business, with minimum limits of $2,000,000.00 on account of bodily injuries to or death of one person and $3,000,000.00 on account of bodily injuries to or death of more than one person as a result of any one accident or disaster, and $2,000,000.00 as a result of damage to property.

 

B.           Tenant shall keep and maintain in force during the Term hereof, plate glass insurance upon windows and doors in the Premises as required by Landlord unless Landlord maintains such insurance on behalf of all Tenants and treats it as a Common Area Expense.

 

15.4         Certificate of Insurance. Tenant shall provide annually to Landlord a Certificate of Insurance listing Landlord as an additional named insured under the Tenant's policy of insurance.

 

15.5.        Insurance Companies. The policies affording the insurance required by this Lease shall be with companies (rated A-[minus] VII or better, A. M. Best's Key Rating Guide) authorized to do business in the State of Arizona and shall be in a form reasonably satisfactory to Landlord, shall provide replacement cost coverage, shall name Landlord as an additional insured, and shall provide for payment of loss thereunder to Landlord and Tenant as their interests may appear. The policies or certificates evidencing such insurance shall be delivered to Landlord on or before the Commencement Date and renewals thereof shall be delivered to Landlord at least thirty (30) days prior to the expiration dates of the respective policies. Alternatively, the insurance required by this Section 15 may be provided under a blanket policy to the Tenant's existing insurance policy.

 

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15.6.          Failure to Procure Insurance. In the event Tenant shall fail to procure insurance required under this Lease or fail to maintain the same in force continuously during the Term, or any extension thereof, Landlord shall be entitled to procure such insurance and Tenant shall, upon demand, immediately reimburse Landlord for such premium expense or Landlord may declare Tenant in default under this Lease.

 

15.7         Repair. In the event of loss under any such policy or policies, Tenant shall promptly proceed with the repair and restoration of the damaged or destroyed improvements in accordance with Section 16 of this Lease. The insurance proceeds, if less than $20,000.00, shall be paid to Tenant for application to such repair, restoration or remediation, so long as (a) Tenant is not then in default under this Lease, and (b) Tenant expressly covenants in writing with Landlord to expend such funds for the repair, restoration or remediation of the Premises and the improvements therein, and to furnish Landlord with documentation evidencing such expenditure of funds for work and improvements incorporated in the Premises within thirty (30) days following completion of such repair, restoration or remediation. If the insurance proceeds exceed $20,000.00, the same shall be paid to and held in trust by the Landlord pursuant to Section 16 of this Lease. All insurance proceeds described in this Section 15.7 shall be paid upon architects' certificates and contractors', subcontractors' and materialmen's waivers of lien for the cost and expense of repair, restoration or remediation of the damage. If at any time such insurance proceeds shall be insufficient to pay fully the cost of completion of such repair, restoration or remediation, Tenant shall upon demand of Landlord pay a sufficient portion of such cost so that it shall appear to the reasonable satisfaction of Landlord that the amount of insurance money in the hands of Tenant or Landlord, as applicable, shall at all times be sufficient to pay for the completion of the repairs, restoration or remediation free and clear of all liens. Upon the completion of the repairs, restoration or remediation, free and clear of all liens, any surplus of insurance monies shall be paid to Tenant, provided that Tenant is not then in default hereunder. In the event that this Lease shall have been terminated for any default of Tenant under any of the terms and provisions contained in this Lease, all proceeds of insurance in the hands of Tenant or Landlord and all claims against insurers shall be and become the absolute property of Landlord.

 

SECTION 16 - DAMAGE OR DESTRUCTION.

 

16.1         Tenant Obligations. In the event of damage to or destruction of any of the improvements on the Premises by fire or other casualty, Tenant shall give Landlord immediate notice thereof and shall, at Tenant's own expense and whether or not the insurance proceeds are sufficient for the purpose, promptly commence and thereafter diligently pursue completion of the repair, restoration or rebuilding of the same so that upon completion of such repairs, restoration or rebuilding, the value and rental value of the improvements shall be substantially equal to the value and rental value thereof immediately prior to the occurrence of such fire or other casualty. Tenant hereby expressly waives any statutory right to terminate this Lease in the event of damage or destruction of the Premises or all or any portion of the buildings or improvements thereon.

 

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16.2         Lease Termination. Notwithstanding anything to the contrary contained herein, if the Premises should be rendered untenantable by fire or other casualty during the last two (2) years of the Term to the extent of fifty percent (50%) or more of the replacement cost of the Premises, Tenant shall have the option to terminate this Lease by notice to Landlord within sixty (60) days after the occurrence of such damage or destruction. Upon termination, this Lease and the Term hereof shall cease and come to an end as of the effective date of such notice (which shall be not less than thirty (30) nor more than ninety (90) days after the notice and shall be specified in the notice). Any unearned rent or other charges shall be apportioned as of the effective date and Tenant shall assign to Landlord all of its rights to the insurance proceeds arising out of damage or destruction to the improvements and shall pay Landlord (when the information is ascertained) the difference between the value of the property damaged or destroyed, prior to the damage or destruction, and the amount, if any, of the insurance proceeds.

 

SECTION 17 - EASEMENTS.

 

Landlord expressly reserves all rights in and with respect to the use of the Premises as provided herein, including (without in any way limiting the generality of the foregoing) the rights of Landlord to establish Common Areas and grant parking easements to others and to enter upon the Premises and give easements to others for the purpose of installing, using, maintaining, renewing and replacing such overhead or underground water, gas, sewer, and other pipe lines, and telephone, electric and power lines, cables and conduits as Landlord may deem desirable in connection with the development or use of the other property in the Project or any other property in the neighborhood thereof, whether owned by Landlord or not.

 

SECTION 18 - INDEMNIFICATION.

 

18.1.          By Tenant. Excepting any responsibility allocated to Landlord by reason of its negligence (excluding from this exception, however, any responsibility allocated to Landlord by reason of its failure to enforce the terms of this Lease), Tenant shall indemnify, defend and hold Landlord harmless for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Landlord by reason of the acts or omissions of Tenant, its agents, employees, contractors, suppliers, licensees, invitees and guests and/or the occurrence of any of the following during the Term: (i) any use, nonuse or condition of the Premises or any part thereof; (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Premises or any part thereof; (iii) any failure on the part of Tenant to perform or comply with any of the provisions of this Lease; (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Landlord and unrelated to a default of Tenant under this Lease); or (v) any failure on the part of Tenant to clean up and/or dispose of any Hazardous Materials, as described in Section 13.2 above, in accordance with the requirements of this Lease and applicable law. In the event Landlord should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Tenant shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Tenant but approved by Landlord. If any such action, suit or proceeding should result in a final judgment against Landlord, Tenant shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Tenant under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.

 

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18.2         By Landlord. Landlord shall save, hold harmless and indemnify Tenant for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Tenant by reason of the negligence of Landlord or its agents, contractors, servants or employees.

 

18.3         Waiver of Claims. Landlord and its agents, contractors, servants or employees and shall not be liable for, and Tenant hereby releases all claims for, damage to persons and property sustained by Tenant or any person claiming through Tenant resulting from any theft, fire, accident, occurrence or condition in, on or about the Premises or building of which they are a part, including, but not limited to, such claims for damage resulting from (i) any defect in or failure of plumbing, heating or air-conditioning equipment, electric wiring or installation thereof, water pipes, stairs, railings or walks; (ii) any equipment or appurtenances needing repair; (iii) the bursting, leaking or running of any tank, wash stand, water closet, waste pipe, drain or any other pipe or tank in or about the Premises; (iv) the backing up of any sewer pipe or down spout; (v) the escape of steam or hot water; (vi) water, snow or ice being upon or coming through the roof or any other place upon or near the Premises or otherwise; (vii) the falling of any fixture, plaster or stucco; and (viii) broken glass.

 

SECTION 19 - ASSIGNMENT AND SUBLETTING.

 

19.1         Landlord Consent. Tenant shall not transfer or assign this Lease or any interest in this Lease or sublet the Premises or any portion thereof without first obtaining the written consent of Landlord, which consent may be given or withheld in Landlord's sole discretion; and any attempted transfer, assignment or subletting, including any involuntary transfers or assignments by operation of law, without such consent shall be void and confer no rights upon any third person, and at the option of Landlord, shall cause a termination of this Lease, in which event such third person shall occupy the Premises as a tenant at sufferance. The acceptance of any rent payments by Landlord from any such alleged assignee shall not constitute approval of the assignment or subletting of this Lease by Landlord. No transfer, assignment or subletting shall relieve Tenant of its liability for the full performance of all of the provisions, agreements, covenants and conditions of this Lease. A consent by Landlord to one transfer, assignment or subletting shall not operate as a waiver of this Section as to any future transfer, assignment or subletting, and this Section 19 shall apply to any transferee, assignee or subtenant.

 

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19.2        In Writing. Each transfer, assignment, and subletting to which there has been consent shall be by an instrument in writing in form satisfactory to Landlord, and shall be executed by the transferor, assignor or sublessor; and the transferee, assignee, or sublessee shall agree in writing for the benefit of Landlord to assume, to be bound by, and to perform the provisions, covenants and conditions of this Lease to be done, kept and performed by Tenant. One executed copy of such written instrument shall be delivered to Landlord. A consent to any transfer, assignment or subletting shall not constitute waiver or discharge of the provisions of this paragraph with respect to a subsequent transfer, assignment or subletting. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to the transfer, assignment or subletting of the Premises.

 

19.3        Transfer Limitation. If Tenant (including any entity later becoming Tenant) is a corporation, unincorporated association, limited liability company or a partnership, the transfer (other than pursuant to the laws of devise and descent upon the death of a shareholder, partner or owner), assignment or hypothecation of any stock or interest in such corporation, association, company or partnership in the aggregate in excess of twenty percent (20%) from the time such entity becomes a Tenant hereunder, shall be deemed an assignment within the meaning and provisions of this Section 19. The foregoing sentence shall not apply to a corporation of which the capital stock is publicly traded on a recognized national stock exchange.

 

19.4        Deleted.

 

SECTION 20 - SUBJECT TO MASTER LEASE.

 

Tenant acknowledges that this Lease is subordinate to a Master Lease of the Project among CANYON PORTAL PROPERTIES, L.L.C. and ATHERTON VENTURES, L.L.C. as Landlord and CANYON PORTAL II, L.L.C., an Arizona limited liability company as Tenant. A Memorandum of Lease is recorded in Coconino County as Instrument No. 98-21399 on July 2, 1998. An Amendment to Memorandum of Lease is recorded in Coconino County as Instrument No. 3288292 on October 14, 2004.

 

SECTION 21 - DEFAULTS BY TENANT.

 

21.1        Event of Default. Each of the following occurrences shall be an Event of Default hereunder:

 

A.           If Tenant fails to pay any Rent, Additional Charges or any sum due hereunder promptly when due and such failure continues for three (3) days after the date such payment was due.

 

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B.           If Tenant defaults or breaches any of the other (non-monetary) covenants, agreements, conditions or undertakings herein to be kept, observed and performed by Tenant and such default continues for ten (10) days after notice thereof in writing to Tenant.

 

C.           TENANT ACKNOWLEDGES THAT ANY VIOLATION OF ANY OF THE PRESCRIBED CONDUCT AS SET FORTH IN PARAGRAPH 8.3 IS A MATERIAL BREACH OF THIS LEASE. IF IN ANY TWELVE (12) MONTH PERIOD THERE ARE MORE THAN TWO (2) NOTICES OF VIOLATION OF PARAGRAPH 8.3 SENT BY LANDLORD TO TENANT, THEN LANDLORD SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE WITHOUT NOTICE.

 

TENANT'S INITIALS: ______________

 

D.           If Tenant files any petition under any chapter or section of the Federal Bankruptcy Code or any similar law, state or federal, whether now or hereafter existing, or shall file an answer admitting insolvency or inability to pay its debts.

 

E.           If Tenant fails to obtain a stay of any involuntary proceedings under any chapter or section of the Federal Bankruptcy Code within sixty (60) days after the institution thereof.

 

F.           If a trustee or receiver is appointed for Tenant or for a major portion of its property or for any portion of the Premises and such appointment is not vacated and dismissed within sixty (60) days thereafter and in any event prior to any action adverse to the interest of Tenant or Landlord having been taken by such trustee or receiver.

 

G.           If any court takes jurisdiction of a major portion of the property of Tenant or any part of the Premises in any involuntary proceeding for dissolution, liquidation or winding up of Tenant and such jurisdiction is not relinquished or vacated within sixty (60) days.

 

H.           If Tenant makes an assignment for the benefit of its creditors.

 

I.           If Tenant fails to occupy and operate the business in the Premises for three (3) consecutive days (except as otherwise allowed under Section 8.4).

 

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21.2         Re-Enter of Premises. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, to reenter the Premises, or any part thereof, either with or without process of law, and to expel, remove and evict Tenant and all persons occupying or upon the same under Tenant, using such force as may be lawful and necessary in so doing, and to possess the Premises and enjoy the same as in their former estate and to take full possession of and control over the Premises and the buildings and improvements thereon and to have, hold and enjoy the same and to receive all rental income of and from the same. No reentry by Landlord shall be deemed an acceptance of a surrender of this Lease, nor shall it absolve or discharge Tenant from any liability under this Lease. Upon such reentry, all rights of Tenant to occupy or possess the Premises shall cease and terminate.

 

21.3         Lease Termination. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, with or without reentry as provided in Section 21.2, to give written notice to Tenant stating that this Lease shall terminate on the date specified by such notice, and upon the date specified in such notice this Lease and the Term hereby demised and all rights of Tenant hereunder shall terminate. Upon such termination, Tenant shall quit and peacefully surrender to Landlord the Premises and the buildings and improvements then situated thereon.

 

21.4         Relettinq. At any time and from time to time after such reentry, Landlord may relet the Premises and the buildings and improvements thereon, or any part thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease), and on such conditions (which may include concessions or free rental) as Landlord, in its reasonable discretion, may determine and may collect and receive the rental therefore. However, in no event shall Landlord be under any obligation to relet the Premises and the buildings and improvements thereon, or any part thereof, and Landlord shall in no way be responsible or liable for any failure to relet or for any failure to collect any rental due upon any such reletting. Even though it may relet the Premises, Landlord shall have the right thereafter to terminate this Lease and all of the rights of Tenant in or to the Premises. Nothing contained in the foregoing shall be deemed a waiver or relinquishment by Tenant of any duty imposed by law on Landlord to mitigate its damages.

 

21.5         Survival of Liability. Unless Landlord shall have notified Tenant in writing that it has elected to terminate this Lease, no such reentry or action in lawful detainer or otherwise to obtain possession of the Premises shall relieve Tenant of its liability and obligations under this Lease; and all such liability and obligations shall survive any such reentry. In the event of any such reentry, whether or not the Premises and the buildings and improvements thereon, or any part thereof, shall have been relet, Tenant shall pay to Landlord the entire rental and all other charges required to be paid by Tenant up to the time of such reentry of this Lease, and thereafter Tenant, until the end of what would have been the Term of this Lease in the absence of such reentry, shall be liable to Landlord, and shall pay to Landlord, as damages for Tenant's default:

 

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A.           The amount of Minimum Annual Base Rental and additional charges which would be payable under this Lease by Tenant if this Lease were still in effect, less

 

B.           The net proceeds of any reletting, after deducting all of Landlord's expenses in connection with such reletting, including without limitation all repossession costs, brokerage commissions, legal expenses, attorneys' fees, alteration costs and expenses of preparation for such reletting.

 

Tenant shall be liable for and pay such damages to Landlord on a monthly basis on the first day of each month and Landlord shall be entitled to recover from Tenant monthly as the same shall arise. The excess, if any, in any month or months, of the net proceeds described in subparagraph (B) above actually received by Landlord over the Minimum Annual Base Rental and Additional Charges described in subparagraph (A) above shall belong to Landlord, provided that such excess shall be credited and applied against Tenant's future obligations arising under this Section 21.5 as the same become due and payable by Tenant hereunder, and that Tenant shall remain liable for future deficiencies, as applicable. Notwithstanding any such reentry without termination, Landlord may at any time thereafter, by written notice to Tenant, elect to terminate this Lease for Tenant's previous breach.

 

21.6        Cumulative Remedies. Each right and remedy of Landlord provided for in this Lease shall be cumulative and in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise; and the exercise or beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease now or hereafter existing at law or in equity or by statute or otherwise.

 

21.7        Sublessee Defaults. Any violation of any covenant or provision of this Lease, whether by act or omission, by any sublessee or any other persons occupying any portion of the Premises under the rights of Tenant shall be deemed a violation of such provision by Tenant and a default under this Lease. Any such violation shall not be deemed to be a default hereunder if and so long as Tenant in good faith and at its own expense takes and diligently pursues any and all steps it is entitled to take and which steps if completed will cure said default.

 

21.8        Repetitive Rent Payment Defaults. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 21.1 HEREOF TO THE CONTRARY, IF IN ANY ONE (1) PERIOD OF TWELVE (12) CONSECUTIVE MONTHS, TENANT SHALL HAVE BEEN IN DEFAULT IN THE PAYMENT OF RENT HEREIN AT LEAST THREE (3) TIMES AND LANDLORD, BECAUSE OF SUCH DEFAULTS, SHALL HAVE SERVED UPON TENANT WITHIN SUCH TWELVE (12) MONTH PERIOD THREE (3) OR MORE NOTICES OF LATE PAYMENT, THEN THE FOURTH DEFAULT SHALL BE DEEMED TO BE A NONCURABLE DEFAULT AND LANDLORD SHALL BE ENTITLED TO IMMEDIATE POSSESSION OF THE PREMISES.

 

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21.9        Cure Period. Notwithstanding any other provision of this Section, Landlord agrees that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be cured within the twenty (20) day period for curing as specified in the written notice relating thereto, then such default shall be deemed to be cured if Tenant within such period of twenty (20) days shall have commenced thereof and shall continue thereafter with all due diligence to effect such cure and does so complete the same with the use of such diligence as aforesaid.

 

21.10        Late Charges. A late charge in the amount of ten percent (10%) of the delinquent payment shall be assessed to any payment required to be made by Tenant to Landlord under the terms of this Lease not received by Landlord within three (3) days after its due date (regardless of whether Tenant has been given notice of such failure of payment). If Tenant tenders to Landlord a check that is returned marked "NSF" or its equivalent, Tenant shall pay Landlord a payment in the amount of twenty percent (20%) of the amount of such non-negotiable check. Tenant's failure to pay any such late charge within three (3) days after Landlord's written demand therefor shall constitute an Event of Default hereunder. In addition to the payments set forth in the preceding two sentences, Tenant shall pay Landlord interest at the rate of eighteen percent (18%) per annum from the date any payment is due until the date such payment is actually received by Landlord.

 

SECTION 22 - CONDEMNATION.

 

If title to all or any portion of the Premises is taken by a public or quasi-public authority under any statute or by right of eminent domain of any governmental body, whether such loss or damage results from condemnation of part or all of the Premises, Tenant shall not be entitled to participate or receive any part of the damages or award except where the same shall provide for Tenant's moving or other reimbursable expenses, the portion thereof allocated to the taking of Tenant's trade fixtures, equipment and personal property or to a loss of business by Tenant. Should any power of eminent domain be exercised after Tenant is in possession, such exercise shall not void or impair this Lease unless the amount of the Premises so taken substantially and materially impairs the usefulness of the Premises for the purposes for which they are leased in which case, either party may cancel this Lease by notice to the other within sixty (60) days after such possession. Should only a portion of the Premises be taken and the Premises continue to be reasonably suitable for Tenant's use, the rent shall be reduced from the date of such possession in direct proportion to the reduction in the square footage of the Premises.

 

SECTION 23 - TENANT'S WAIVER OF STATUTORY RIGHTS.

 

In the event of any termination of the Term (or any repossession of the Premises), Tenant so far as permitted by law, waives (i) any notice of reentry or of the institution of legal proceedings to that end; and (ii) the benefits of any laws now or hereafter in force exempting property from liability for rent or for debt.

 

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SECTION 24 - WAIVER OF PERFORMANCE.

 

No failure by Landlord or Tenant to insist upon the strict performance of any term or condition hereof or to exercise any right, power or remedy consequent upon a breach thereof and no submission by Tenant or acceptance by Landlord of full or partial rent during the continuance of any such breach shall constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Lease (which shall continue in full force and effect), or the respective rights of Landlord or Tenant with respect to any other then-existing or subsequent breach.

 

SECTION 25 - REMEDIES CUMULATIVE.

 

Each right, power and remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise; and the exercise or beginning of the exercise of any one or more of the rights, powers or remedies provided for in this Lease shall not preclude the simultaneous or later exercise of any or all such other rights, powers or remedies.

 

SECTION 26 - CONVEYANCE BY LANDLORD.

 

In the event Landlord or any successor Landlord shall convey or otherwise dispose of the Premises, it shall thereupon be released from all liabilities and obligations imposed upon Landlord under this Lease (except those accruing prior to such conveyance or other disposition) and such liabilities and obligations shall be binding solely on the then owner of the Premises.

 

SECTION 27 - NO PERSONAL LIABILITY TO LANDLORD.

 

Tenant shall look solely to Landlord's interest in the Premises for the satisfaction of any judgment or decree requiring the payment of money by Landlord based upon any default under this Lease, and no other property or assets of Landlord, or any partner or member of, or shareholder in, Landlord, shall be subject to levy, execution or other enforcement procedures for satisfaction of any such judgment or decree.

 

SECTION 28 - ATTORNEYS' FEES.

 

In the event Landlord retains an attorney to enforce its rights under this Lease or to bring suit for possession of the Premises, for the recovery of any sum due hereunder, or for any other relief against Tenant, declaratory or otherwise, arising out of a breach of any term of this Lease, or in the event Tenant should bring any action for any relief against Landlord, declaratory or otherwise, arising out of this Lease, the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, which shall be deemed to have accrued due to the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

 

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SECTION 29 - PROVISIONS SUBJECT TO APPLICABLE LAW.

 

All rights, powers and remedies provided herein shall be exercised only to the extent that the exercise thereof shall not violate any applicable law and are intended to be limited to the extent necessary so that they shall not render this Lease invalid or unenforceable under any applicable law. If any term of this Lease shall be held to be invalid, illegal or unenforceable, the validity of the other terms of this Lease shall in no way be affected thereby.

 

SECTION 30 - RIGHT TO CURE TENANT'S DEFAULTS.

 

In the event Tenant shall breach any term, covenant or provision of this Lease, Landlord may at any time, without notice, cure such breach for the account and at the expense of Tenant. If Landlord at any time, by reason of such breach, is compelled to pay or elects to pay any sum of money or to do any act that will require the payment of any sum of money, or is compelled to incur any expense, including reasonable attorneys' fees, incurred in instituting, prosecuting or defending any actions or proceedings to enforce Landlord's rights under this Lease or otherwise, the sum or sums so paid by Landlord, with all interest, costs and damages, shall be deemed to be Additional Charges and shall be paid by Tenant to Landlord on the first day of the month following the incurring of such expenses of the payment of such sums and shall include interest at the rate of eighteen percent (18%) per annum from the date Landlord makes a payment until Tenant pays such Additional Charges in full.

 

SECTION 31 - NOTICES.

 

Any notice to be given by Landlord or Tenant shall be given in writing and delivered in person or by overnight mail service to Landlord or Tenant, forwarded by certified or registered mail, postage prepaid, or sent via facsimile transmission, to the address indicated in the Fundamental Lease Provisions, unless the party giving any such notice has been notified, in writing, of a change of address. Any such notice shall be deemed effective (a) upon receipt or refusal to accept delivery, if personally delivered; (b) on the next business day following delivery to the overnight courier; (c) in the case of certified mailing, on the date of actual delivery as shown by the addressee's receipt or upon the expiration of three (3) business days following the date of mailing, whichever occurs first; or (d) in the case of facsimile transmission, upon receipt (a written confirmation of successful transmission from the transmitting facsimile machine being prima facie evidence of such receipt).

 

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SECTION 32 - SIGNS.

 

Tenant shall not place, alter, exhibit, inscribe, paint or affix any sign, awning, canopy, advertisement, notice or other lettering on any part of the outside of the Premises, or of the building of which the Premises is a part, or inside the Premises if visible from the outside, without first obtaining Landlord's written approval thereof, which shall not be unreasonably withheld, and if so approved, Tenant shall maintain the same in good condition and repair. All signs shall comply with applicable ordinances or other governmental restrictions and with all applicable rules and regulations then in force or as may be put in force and effect from time to time by any governmental authority or by Landlord.

 

SECTION 33 - LANDLORD'S INSPECTIONS.

 

33.1         Inspection. Landlord reserves the right to, at all reasonable times, by itself or by its duly authorized agents, employees and contractors, and without notice to go upon and inspect the Premises and every part thereof, to enforce or carry out the provisions of this Lease, to make, at its option, repairs, installations, alterations, improvements and additions to the Premises or the building of which the Premises are a part, to perform any defaulted obligation of Tenant or for any other proper purposes. Landlord also reserves the right to install or place upon or affix to the roof and exterior walls of the Premises: equipment, signs, displays, antennae and any other object or structure of any kind, provided the same shall not interfere with Tenant's occupancy or materially impair the structural integrity of the building of which the Premises are a part.

 

33.2         Presenting for Sale or Lease. Landlord hereby reserves the right during usual business hours to enter the Premises and to show the same for purposes of sale, lease or mortgage, and during the last six (6) months of the term of this Lease, or the extension thereof, to exhibit the same to any prospective tenant, and to display appropriate signage for such sale or lease. Prospective purchasers or tenants authorized by Landlord may inspect the Premises during reasonable hours at any time.

 

SECTION 34 - ESTOPPEL CERTIFICATE.

 

Tenant will execute, acknowledge and deliver to Landlord, within three (3) days following request therefor, a certificate certifying (a) that this Lease is unmodified and in full force (or, if there have been modifications, that the Lease is in full force and effect, as modified, and stating the modifications); (b) the dates, if any, to which rent, Additional Charges and other sums payable hereunder have been paid; (c) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; and (d) this Lease is and shall be subordinate to any existing or future deed of trust, mortgage or security agreement placed upon the Premises or the Project by the Landlord or owner of the Property. Any claim of Tenant in contradiction of any of the foregoing matters must be set forth with specificity in the certificate. Any such certificate may be relied upon by any prospective purchaser or encumbrancer of the Premises or any part thereof. Tenant's failure to deliver such certificate within the time permitted hereby shall be conclusive upon Tenant that this Lease is in full force and effect, except to the extent any modification has been represented by Landlord, and there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance. In addition, at Landlord's option, after notice to Tenant and expiration of applicable grace period under this Lease, such failure of Tenant to deliver such certificate shall constitute an Event of Default. Tenant acknowledges and agrees that the promise to issue such statements pursuant hereto are a material consideration inducing Landlord to enter into this Lease and that the breach of such promise shall be deemed a material breach of this Lease.

 

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SECTION 35 - WAIVER OF TRIAL BY JURY.

 

TENANT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR TENANT AGAINST EACH OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES. TENANT AGREES THAT EXCLUSIVE JURISDICTION FOR ALL LEGAL ACTIONS SHALL BE COCONINO COUNTY SUPERIOR COURT.

 

SECTION 36 - RECORDING.

 

Neither this Lease nor a memorandum thereof, may be recorded, or otherwise made public, by any means, without the express written consent of Landlord. Any such recording or publication without such consent, shall, at Landlord's option, cause this Lease and all rights of Tenant hereunder, to be immediately forfeited and of no further force and effect, provided, however, that Landlord shall have the right to such action against Tenant, for damages resulting from such recording, as Landlord shall be entitled to by law.

 

SECTION 37 - SUBORDINATION.

 

This Lease is hereby declared to be subject and subordinate to the lien of any present or future encumbrance or encumbrances upon the Premises or the Project, irrespective of the time of execution or the time of recording of any such encumbrance or encumbrances. Landlord shall use its good faith efforts to obtain for Tenant an attornment and non-disturbance agreement from any lender which has a lien on the Premises. This subordination is subject to the right of Tenant upon a foreclosure or other action taken under any mortgage by the holders thereof to have this Lease and the rights of Tenant hereunder not be disturbed but to continue in full force and effect so long as Tenant shall not be in default hereunder. The word "encumbrance" as used herein includes mortgages, deeds of trust or other similar instruments, and modifications, extensions, renewals and replacements thereof, and any and all advances thereunder.

 

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SECTION 38 - MISCELLANEOUS.

 

38.1         Definition of Tenant. The Term "Tenant" shall include legal representatives, successors and permitted assigns. All covenants herein shall be made binding upon Tenant and construed to be equally applicable to and binding upon its agents, employees and others claiming the right to be in the Premises or in the building or in the building through, under or above Tenant.

 

38.2         Tenant. If more than one individual, firm, or corporation shall join as Tenant, singular context shall be construed to be plural wherever necessary and the covenants of Tenant shall be the joint and several obligations of each party signing as Tenant and when the parties signing as Tenant are partners, it shall be the obligation of the firm and of the individual members thereof.

 

38.3         Gender and Number. Whenever from the context it appears appropriate, each item stated in the singular shall include the plural and vice versa and the masculine, feminine, or neuter form shall included the masculine, feminine and neuter forms.

 

38.4         Modifications and Waivers. No change, modification, or waiver of any provision of this Lease shall be valid or binding unless it is in writing dated after the date hereof and signed by the parties intended to be bound. No waiver of any breach, term, or condition of this Lease by either party shall constitute a subsequent waiver of the same or any other breach, term, or condition.

 

38.5         Implied Warranties. OTHER THAN AS SET FORTH IN THIS LEASE, TENANT AND LANDLORD EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.

 

38.6         Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns. This provision shall not be deemed to grant Tenant any right to assign this Lease or sublet the Premises or any part thereof other than as provided in this Lease.

 

38.7         Severability. To the fullest extent possible each provision of this agreement shall be interpreted in such fashion as to be effective and valid under applicable law. If any provision of this Lease is declared void or unenforceable with respect to particular circumstances, such provision shall remain in full force and effect in all other circumstances. If any provision of this Lease is declared void or unenforceable, such provision shall be deemed severed from this Lease, which shall otherwise remain in full force and effect.

 

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38.8         Governing Law and Jurisdiction. Except where preempted by the laws of the United States or the rules or regulations of any agency or instrumentality thereof, this Lease is to be interpreted, construed and governed by the laws of the State of Arizona. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the Superior Court of the State of Arizona for the County of Coconino in connection with any legal action or proceeding arising out of or relating to this Lease and the parties waive any objection relating to the basis for personal or in rem jurisdiction or to venue which it may now or hereafter have in any such suit, action or proceeding.

 

38.9         Entire Agreement. This instrument constitutes the sole and only agreement between Landlord and Tenant respecting the Premises, the leasing of the Premises to the Tenant, or the Lease term herein specified, and correctly sets forth the obligations of the Landlord and Tenant to each other as of its date. Any agreements or representations by the Landlord to the Tenant not expressly set forth in this instrument are void and unenforceable. All prior agreements and understanding of the parties with respect to such subject matter are hereby superseded. No representations, promises, agreements, or understandings contained in this Lease regarding the subject matter hereof shall be of any force or effect unless in writing, executed by the party to be bound, and dated on or subsequent to the date hereof. Captions and headings are for convenience only and shall not alter any provision or be used in the interpretation of this Lease.

 

38.10          Time is of the Essence. Time is of the essence of this Lease and each and every provision hereof. Any extension of time granted for the performance of any duty under this Lease shall not be considered an extension of time for the performance of any other duty under this Lease.

 

38.11         Brokers. Tenant represents and warrants that it has not entered into any agreement with, nor otherwise had any dealings with, any broker or agent in connection or execution of this Lease which could form the basis of any claim by any such broker or agent for a brokerage fee or commission, finder's fee, or any other compensation of any kind or nature in connection with this Leasehold.

  

LANDLORD:   TENANT:
     
CANYON PORTAL II, L.L.C.,   L’AUBERGE ORCHARDS, LLC,
an Arizona limited liability company   an Arizona corporation
     
By: /s/ Al Spector   By: /s/ Al Spector
  Al Spector     Al Spector
Its: Manager   Its: Manager

 

 

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List of Exhibits

 

A.           Project Site Plan

 

 
 

 

 

State Route 89A

 

 
 

 

Exhibit Giii

  

SECOND AMENDMENT TO LEASE

 

(Sinagua Plaza II Storage Lease)

 

THIS SECOND AMENDMENT TO LEASE (“Amendment”) executed and effective as of May 14, 2013 by and between Sinagua Plaza II, L.L.C., an Arizona limited liability company (“Landlord”) and L’Auberge Orchards, LLC, an Arizona limited liability company (“Tenant”).

 

WHEREAS, Landlord and Tenant entered into that certain Lease dated January 1, 2012 (“Original Lease”), as amended by that certain Amendment to Lease dated May 1, 2012 (“First Amendment”)(the Original Lease and First Amendment are hereby collectively referred to as the “Lease”), whereby Landlord leased to Tenant and Tenant leased from Landlord 17 parking spaces located on the property commonly known as 320 N. Highway 89A, Sedona, Arizona, as described in the Original Lease and legally described on Exhibit A attached hereto;

 

WHEREAS, Landlord and Tenant desire to further amend the terms of the Lease pursuant to the provisions of this Amendment.

 

NOW, THEREFORE, in consideration of the above recitals, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

 

1. Lease Term.

 

(a) The Lease Term is hereby extended to the date which is the tenth (10th) anniversary of the date hereof.

 

(b) Section 5 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Landlord grants to Tenant the right to extend the Lease Term for one (1) additional period of ten (10) years. Such extension shall be upon the same terms and conditions as the Original Lease, as modified by this Amendment.

 

(c) Notwithstanding anything herein or in the Original Lease to the contrary, Tenant shall have the right to terminate this Lease at any time upon thirty (30) days prior written notice to Landlord.

 

2. Rent. The total monthly Minimum Rent payable in accordance with the Lease shall be $2,000 for the period commencing on the date hereof through the first (1st) anniversary of the date hereof. Thereafter, the total monthly Minimum Rent payable under this Lease shall be increased on an annual basis an amount equal to three percent (3%) of the Minimum Rent payable in the immediately preceding year.

 

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3. Common Area Expenses. Following the first (1st) year of the term of this Lease, Tenant’s proportionate share of common area expenses shall be adjusted for each year thereafter as follows: The base for computing the adjustment is the Consumers’ Price Index for All Urban Consumers, United States Cities Average published by the United States Department of Labor, Bureau of Labor Statistics (the “Index”), which is in effect on the date of the commencement of the first day of the previous Lease year (“Beginning Index”). For example, the adjustment for year two would be based on the Index for the first day of Lease year one. The Index published most immediately preceding the Adjustment Date in question (“Extension Index”) is to be used in determining the amount of the adjustment. If the Extension Index has increased over the Beginning Index, the common area expenses for the following year shall be set by multiplying the base monthly rent for the previous year, e.g., for the 12th Lease month, by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. However, the adjustment to common area expenses shall be no greater than three percent (3%) compounded per annum of the prior year’s common area expenses.

 

4. Certificate of Insurance. Section 8 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Tenant shall provide annually to Landlord a Certificate of Insurance listing Landlord as an additional insured.”

 

5. Premises Utilities. Landlord shall, at Landlord’s expense, cause to the Premises to be properly lighted at all times in which the Project is open to the public for business.

 

6. Repair. Section 11 of the Lease is hereby deleted in its entirety.

 

7.Damage or Destruction.Article 12 of the Lease is hereby deleted in its entirety and replaced with the following:

 

“If all or any portion of the Premises or the Project is damaged by fire or other casualty insurable under a standard fire insurance policy with a standard extended coverage endorsement, Minimum Monthly Rental and Additional Rent shall abate and Landlord shall promptly repair as is necessary to replace the Premises and when placed in such condition the Premises shall be deemed restored and rendered tenantable, such repair or rebuilding to be commenced within a reasonable time after the occurrence. If such damage occurs in the last two years of the Lease Term or during any Option Term, Tenant or Landlord shall have the option of terminating the Lease upon written notice to the other party. If Landlord’s Lender requires that the insurance proceeds be used to retire the debt, Landlord shall have no obligation to rebuild, and this Lease shall terminate upon notice to Tenant. Promptly following Landlord’s repair or rebuilding, Tenant, at Tenant’s sole expense, shall repair or replace its stock in trade, fixtures, furniture, furnishings, floor coverings and equipment, and if Tenant has closed, Tenant shall promptly reopen for business.”

 

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15. Waiver of Subrogation. Except with respect to Worker’s Compensation, to which no waiver of subrogation will apply, each party hereby waives any and every right or cause of action for the events which occur or accrue during the Lease Term for any and all loss of, or damage to, any of its property (whether or not such loss or damage is caused by the fault or negligence of the other party or anyone for whom said other party may be responsible), which loss or damage is covered by valid and collectible fire, extended coverage, “All Risk” or similar policies covering real property, personal property or business interruption insurance policies, to the extent that such loss or damage is recovered under said insurance policies. Said waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss or damage to property of the parties hereto. Written notice of the terms of such mutual waivers shall be given to each insurance carrier and the insurance policies shall be properly endorsed, if necessary, to prevent the invalidation of coverage by reason of said waivers.

 

16. . Indemnification.

 

a.   Section 14.1 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

By Tenant. Excepting any responsibility allocated to Landlord by reason of its gross negligence (excluding from this exception, however, any responsibility allocated to Landlord by reason of its failure to enforce the terms of this Lease), Tenant shall indemnify, defend and hold Landlord harmless for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses) imposed upon or asserted against Landlord by reason of the gross negligence or willful misconduct of Tenant, its agents, employees, contractors, suppliers, licensees, invitees and guests and/or the occurrence of any of thefollowing during the Term: (i) any use, non-use or condition of the Premises or any part thereof; (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Premises or any part thereof; (iii) any failure on the part of Tenant to perform or comply with any of the provisions of this Lease; (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Landlord and unrelated to a default of Tenant under this Lease); or (v) any failure on the part of Tenant to clean up and/or dispose of any Hazardous Materials, as described in Section 13.2 above, in accordance with the requirements of this Lease and applicable law. In the event Landlord should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Tenant shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Tenant but approved by Landlord. If any such action, suit or proceeding should result in a final judgment against Landlord, Tenant shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Tenant under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.”

 

b. Section 14.2 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

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By Landlord.Landlord shall save, hold harmless and indemnify Tenant for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or asserted against Tenant by reason of the gross negligence or willful misconduct of Landlord or its agents, contractors, servants or employees and/or the occurrence of any of the following during the Term: (i) any use or condition of the Premises or any part thereof (which Landlord is required to maintain); (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Common Areas; (iii) any failure on the part of Landlord to perform or comply with any of the provisions of this Lease; and (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Tenant). In the event Tenant should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Landlord shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Landlord but approved by Tenant. If any such action, suit or proceeding should result in a final judgment against Tenant, Landlord shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Landlord under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.”

 

17. Assignment and Subletting. Article 15 of the Original Lease is hereby deleted in its entirety and replaced with the following:

 

“Tenant shall have the right to transfer or assign this Lease or sublet all or any portion of the Premises without Landlord’s consent, but with prior written notice to Landlord; provided, the assignee or subtenant expressly assumes all obligations of Tenant under the Lease. Notwithstanding the foregoing, Landlord shall not have the right to consent to any assignment or subletting of this Lease or any portion of the Premises to an entity which controls, is controlled by or is under common control with Tenant, and Landlord shall not withhold its consent to any proposed assignee or subtenant with financial wherewithal equal to or superior to that of Tenant and who is actively engaged in the hospitality industry.”

 

19. Estoppels. The period in which Tenant must respond to a request for an estoppel pursuant to Section 29 of the Lease is hereby modified from seven (7) days to ten (10) business days. In the event Tenant fails to respond within such ten (10) business day period, Tenant shall be deemed in default under Section 16.1 of the Lease, but in no event will Tenant’s failure to respond be deemed an acknowledgement of any proported facts contained in any form estoppel .

 

20. Conflicting Terms. In the event of any conflict, inconsistency or ambiguity between the terms of this Amendment and the Lease, the terms of this Amendment shall control.

 

21. Defined Terms. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Lease.

 

22. Multiple Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument.

 

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23. Ratification. Except as expressly modified by this Amendment, the Lease remains unmodified and in full force and effect.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year above first written.

 

“Landlord”

 

Sinagua Plaza II, L.L.C., an Arizona limited liability company

 

By: /s/ Al Spector  
     
Name: Al Spector  
     
Title: Manager  

 

“Tenant”

 

L’Auberge Orchards, LLC, an Arizona limited liability company

 

By: /s/ Al Spector  
     
Name: Al Spector  
     
Title: Manager  

 

 

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AMENDMENT TO LEASE

 

This Amendment to Lease (Amendment) is made this 1st day of May, 2012 by and between Sinagua Plaza II, LLC as Landlord ("Landlord") and L'Auberge Orchards LLC as Tenant ("Tenant") and amends the Lease for Storage Space between Landlord and Tenant dated January 1, 2012.

 

RECITALS

 

1.          Landlord and Tenant entered into a Lease for Storage Space in the basement of the Landlord's shopping center at 320 N. Highway 89A, Sedona, AZ 86336.

 

2.          Tenant did not have sufficient cash flow during the months of January, February, March and April 2012 to pay Landlord the Rent that was due.

 

3.          Tenant has requested and Landlord has agreed to allow Tenant to defer payment of Rent during these months until the months of May, June, July and August 2012 under the terms and conditions set forth in this Amendment.

 

It is agreed as follows:

 

1.           Paragraph 4A, Minimum Rent is amended as follows:

 

A.           Tenant shall pay to Landlord the Minimum Rent in advance, on the first day of each calendar month, except that in 2012 for the months of January, February, March and April, Rent shall be paid as follows: (I) January Rent will be paid in May, February Rent will be paid in June, March Rent will be paid in July and April Rent will be paid in August This accommodation of deferred Rent is extended to Tenant by Landlord provided that the revised Rent schedule stated in this Paragraph is adhered to in 2012. Should Tenant not make Rent payments pursuant to this deferred Rent schedule, Tenant will be in default under this Lease.

 

2.           Full Force and Effect. Except as modified by this Amendment, the Lease and each of its terms and conditions remains in full force and effect. 

 

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LANDLORD:   TENANT:
     
SINAGUA PLAZA II, LLC,   L’AUBERGE ORCHARDS, LLC,
an Arizona limited liability company   an Arizona limited liability company
     
By: JOHNAL CORPORATION, an Arizona corporation      
         
Its: Manager   By: /s/ Al Spector
        Al Spector
  By: /s/ John Carleton   Its: Manager
    John Carleton      
  Its: President      
           
  By: /s/ Al Spector      
    Al Spector      
  Its: Vice President      

 

 
 

 

LEASE FOR STORAGE SPACE

 

This LEASE FOR STORAGE SPACE ("Lease"), is made this 1st day of January, 2012, by and between Sinagua Plaza II, LLC, an Arizona limited liability company, having offices at 6900 E. Camelback Road, Suite 915, Scottsdale, AZ 85251 ("Landlord"), and L'Auberge Orchards LLC, an Arizona limited liability company, having offices at 301 L'Auberge Lane, Sedona, AZ 86336 ("Tenant").

 

RECITALS

 

  1. Landlord owns the Sinagua Plaza shopping center located at 320 N. Highway 89A in Sedona, Arizona. Sinagua Plaza is a retail shopping center with a very large basement storage area.

 

  2. Tenant has stored furniture, fixtures and equipment including but not limited to a walk-in refrigerator and freezer in the basement storage area of Sinagua Plaza, free of charge, since January, 2009.

 

  3. Tenant desires to continue to use the space for storage. Landlord agrees to permit Tenant to use the space for storage under the terms and conditions set forth below.

 

It is agreed as follows:

 

  1. Premises. Landlord and Tenant agree that Tenant has used up to 3,000 square feet of space in the basement area. Tenant desires to continue to have this space available to it for current and future storage needs.

 

  2. Commencement Date, The Commencement Date of this Lease is January 1, 2012.

 

  3. Termination Date. The Termination Date of this Lease is December 31, 2017.

 

  4. Minimum Rent, Commencing January 1, 2012, Minimum Rent shall be Two Thousand Dollars ($2,000.00) per month. Rent is due and payable in advance on or before the first day of each month and subject to adjustment as set forth below.

 

A.           Tenant shall pay to Landlord the Minimum Rent in advance, on the first day of each calendar month. The Minimum Rent hereinafter provided for shall be paid in lawful money of the United States to Landlord at its address or at such other place as Landlord may from time to time designate in writing. 

 

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B.           The Minimum Rent shall be subject to adjustment as described herein commencing in the second year of the Lease Term and for each year thereafter as follows except for the first year of any Option Term, when rent shall be adjusted to Market Rent.

 

The base for computing the adjustment is the Consumers' Price Index for All Urban Consumers, United States Cities Average published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), which is in effect on the date of the commencement of the first day of the previous Lease year ("Beginning Index"). For example, the adjustment for year two would be based on the Index for the first day of Lease year one. The Index published most immediately preceding the Adjustment Date in question ("Extension Index") is to be used in determining the amount of the adjustment. If the Extension Index has increased over the Beginning Index, the base monthly rent for the following year shall be set by multiplying the base monthly rent for the previous year, e.g., for the 12th Lease month, by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. However, the adjustment to the rent shall be no less than three percent (3%) compounded per annum of the base monthly rent provided in this Lease. As an example, if year one monthly rent is $1,000.00 and the three percent (3%) is applicable each year, then monthly rent for years two through five would be: year two - $1,030.00; year three - $1,060.90; year four - $1,092.73; and year five $1,125.51.

 

If the Index is changed so that the base year differs from that in effect when the Term commences, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the Term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.

 

C.           Monthly rent for the first month shall be paid on the date the Term commences. Monthly rent for any partial month shall be prorated at the rate of one-thirtieth (1/30) of the monthly rent per day.

 

D.           All rental amounts are "net" rent to Landlord.

 

5.          Options to Renew. Provided that (i) this Lease is in full force and effect; (ii) Tenant is in possession of the Premises; and (iii) Tenant has not been and is not in default under this Lease, Tenant shall have the right and option to further extend the Term of this Lease for two (2) additional successive renewal periods of five (5) years each. The tenancy resulting from the exercise of this option shall be upon the same terms and conditions as set forth in this Lease. The Minimum Rent for the first year of each renewal period shall be adjusted upward or downward by Landlord in the first year of each renewal period based upon the prevailing rates (Market Rent) for rents in Sinagua Plaza. Thereafter, for years 2, 3, 4 and 5 of each renewal period Rent shall increase by three percent (3%) per year over the previous years Rent. The option for the renewal periods may be exercised only upon written notice thereof to Landlord at least six (6) months prior to the Termination Date of this Lease. Within sixty (60) days after exercise of any option for a renewal period, Landlord shall, in writing, notify Tenant of the Rent during the first year of the renewal period. If Tenant fails to exercise any option during the period when the option is available, or if this Lease is in default or is no longer in full force and effect for any reason, the applicable option shall be void.

 

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The first renewal period shall commence on the date following the originally fixed Termination Date. The second renewal period shall commence on the date following the termination date of the first renewal period.

 

6.          Size and Configuration. Landlord and Tenant agree that the size and characteristics of the Premises will be at the sole discretion of Landlord.

 

7.          Tenant's Property. Tenant agrees that all property owned by it in, on, or about the Premises shall be at the sole risk and hazard of the Tenant. Landlord shall not be liable or responsible for any loss or damage to Tenant, or anyone claiming under or through Tenant, or otherwise, whether caused by or resulting from a peril required to be insured hereunder, or from water, gas leakage, plumbing, electricity or electrical apparatus, pipe or apparatus of any kind, the elements or other similar or dissimilar causes, and whether or not originating in the Premises or elsewhere, irrespective of whether or not Landlord may be deemed to have been negligent with respect thereto, and provided such damage or loss is not the result of any intentional and wrongful act of Landlord. Tenant shall require all policies of risk insurance carried by it on its property in the Premises to contain or be endorsed with the provision in and by which the insurer designated therein shall waive its right of subrogation against Landlord.

 

8.          Certificate of Insurance. Tenant shall provide annually to Landlord a Certificate of Insurance listing Landlord as an additional named insured and Barrett Realty LLC as an additional named insured under the Tenant's policy of insurance.

 

9.          Insurance Companies. The policies affording the insurance required by this Lease shall be with companies (rated A-[minus] VII or better, A. M. Best's Key Rating Guide) authorized to do business in the State of Arizona and shall be in a form reasonably satisfactory to Landlord, shall provide replacement cost coverage, shall name Landlord as an additional insured, and shall provide for payment of loss thereunder to Landlord and Tenant as their interests may appear. The policies or certificates evidencing such insurance shall be delivered to Landlord on or before the Commencement Date and renewals thereof shall be delivered to Landlord at least thirty (30) days prior to the expiration dates of the respective policies. Alternatively, the insurance required by this Section 15 may be provided under a blanket policy to the Tenant's existing insurance policy. 

 

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10.         Failure to Procure Insurance. In the event Tenant shall fail to procure insurance required under this Lease or fail to maintain the same in force continuously during the Term, or any extension thereof, Landlord shall be entitled to procure such insurance and Tenant shall, upon demand, immediately reimburse Landlord for such premium expense or Landlord may declare Tenant in default under this Lease.

 

11.         Repair. In the event of loss under any such policy or policies, Tenant shall promptly proceed with the repair and restoration of the damaged or destroyed improvements. The insurance proceeds, if less than $20,000.00, shall be paid to Tenant for application to such repair, restoration or remediation, so long as (a) Tenant is not then in default under this Lease, and (b) Tenant expressly covenants in writing with Landlord to expend such funds for the repair, restoration or remediation of the Premises and the improvements therein, and to furnish Landlord with documentation evidencing such expenditure of funds for work and improvements incorporated in the Premises within thirty (30) days following completion of such repair, restoration or remediation. If the insurance proceeds exceed $20,000.00, the same shall be paid to and held in trust by the Landlord. All insurance proceeds described in this Paragraph 11 shall be paid upon architects' certificates and contractors', subcontractors' and materialmen's waivers of lien for the cost and expense of repair, restoration or remediation of the damage. If at any time such insurance proceeds shall be insufficient to pay fully the cost of completion of such repair, restoration or remediation, Tenant shall upon demand of Landlord pay a sufficient portion of such cost so that it shall appear to the reasonable satisfaction of Landlord that the amount of insurance money in the hands of Tenant or Landlord, as applicable, shall at all times be sufficient to pay for the completion of the repairs, restoration or remediation free and clear of all liens. Upon the completion of the repairs, restoration or remediation, free and clear of all liens, any surplus of insurance monies shall be paid to Tenant, provided that Tenant is not then in default hereunder. In the event that this Lease shall have been terminated for any default of Tenant under any of the terms and provisions contained in this Lease, all proceeds of insurance in the hands of Tenant or Landlord and all claims against insurers shall be and become the absolute property of Landlord.

 

12.         Damage or Destruction.

 

12.1 Tenant Obligations. In the event of damage to or destruction of any of the improvements on the Premises by fire or other casualty, Tenant shall give Landlord immediate notice thereof and shall, at Tenant's own expense and whether or not the insurance proceeds are sufficient for the purpose, promptly commence and thereafter diligently pursue completion of the repair, restoration or rebuilding of the same so that upon completion of such repairs, restoration or rebuilding, the value and rental value of the improvements shall be substantially equal to the value and rental value thereof immediately prior to the occurrence of such fire or other casualty. Tenant hereby expressly waives any statutory right to terminate this Lease in the event of damage or destruction of the Premises or all or any portion of the buildings or improvements thereon.

 

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12.2 Lease Termination. Notwithstanding anything to the contrary contained herein, if the Premises should be rendered untenantable by fire or other casualty during the last two (2) years of the Term to the extent of fifty percent (50%) or more of the replacement cost of the Premises, Tenant shall have the option to terminate this Lease by notice to Landlord within sixty (60) days after the occurrence of such damage or destruction. Upon termination, this Lease and the Term hereof shall cease and come to an end as of the effective date of such notice (which shall be not less than thirty (30) nor more than ninety (90) days after the notice and shall be specified in the notice). Any unearned rent or other charges shall be apportioned as of the effective date and Tenant shall assign to Landlord all of its rights to the insurance proceeds arising out of damage or destruction to the improvements and shall pay Landlord (when the information is ascertained) the difference between the value of the property damaged or destroyed, prior to the damage or destruction, and the amount, if any, of the insurance proceeds.

 

13.         Easements. Landlord expressly reserves all rights in and with respect to the
use of the Premises as provided herein, including (without in any way limiting the generality of the foregoing) the rights of Landlord to establish Common Areas and grant parking easements to others and to enter upon the Premises and give easements to others for the purpose of installing, using, maintaining, renewing and replacing such overhead or underground water, gas, sewer, and other pipe lines, and telephone, electric and power lines, cables and conduits as Landlord may deem desirable in connection with the development or use of the other property in the Project or any other property in the neighborhood thereof, whether owned by Landlord or not.

 

14.         Indemnification.

 

14.1. By Tenant. Excepting any responsibility allocated to Landlord by reason of its negligence (excluding from this exception, however, any responsibility allocated to Landlord by reason of its failure to enforce the terms of this Lease), Tenant shall indemnify, defend and hold Landlord harmless for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Landlord by reason of the acts or omissions of Tenant, its agents, employees, contractors, suppliers, licensees, invitees and guests and/or the occurrence of any of the following during the Term: (i) any use, non-use or condition of the Premises or any part thereof; (ii) any accident, injury to or death of persons (including workmen) or loss of or damage to property occurring on or about the Premises or any part thereof; (iii) any failure on the part of Tenant to perform or comply with any of the provisions of this Lease; (iv) performance of any labor or services or the furnishings of any materials or other property in respect of the Premises or any part thereof (excluding any such matters performed or furnished by or at the request of Landlord and unrelated to a default of Tenant under this Lease); or (v) any failure on the part of Tenant to clean up and/or dispose of any Hazardous Materials, as described in Section 13.2 above, in accordance with the requirements of this Lease and applicable law. In the event Landlord should be made a defendant in any action, suit or proceeding brought by reason of any such occurrence, Tenant shall, at its own expense, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by legal counsel designated by Tenant but approved by Landlord. If any such action, suit or proceeding should result in a final judgment against Landlord, Tenant shall promptly satisfy and discharge such judgment or shall cause such judgment to be promptly satisfied and discharged. The obligations of Tenant under this Section 18 arising by reason of any such occurrence taking place while this Lease is in effect shall survive the termination of this Lease.

 

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14.2        By Landlord. Landlord shall save, hold harmless and indemnify Tenant for, from and against all liabilities, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or asserted against Tenant by reason of the negligence of Landlord or its agents, contractors, servants or employees.

 

15.         Assignment and Subletting. Tenant shall not transfer or assign this Lease or any interest in this Lease or sublet the Premises or any portion thereof without first obtaining the written consent of Landlord, which consent may be given or withheld in Landlord's sole discretion; and any attempted transfer, assignment or subletting, including any involuntary transfers or assignments by operation of law, without such consent shall be void and confer no rights upon any third person, and at the option of Landlord, shall cause a termination of this Lease, in which event such third person shall occupy the Premises as a tenant at sufferance. The acceptance of any rent payments by Landlord from any such alleged assignee shall not constitute approval of the assignment or subletting of this Lease by Landlord. No transfer, assignment or subletting shall relieve Tenant of its liability for the full performance of all of the provisions, agreements, covenants and conditions of this Lease. A consent by Landlord to one transfer, assignment or subletting shall not operate as a waiver of this Section as to any future transfer, assignment or subletting, and this Section 15 shall apply to any transferee, assignee or subtenant.

 

16.         Defaults by Tenant.

 

16.1        Event of Default. Each of the following occurrences shall be an Event of Default hereunder:

 

A.           If Tenant fails to pay any Rent, Additional Charges or any sum due hereunder promptly when due and such failure continues for three (3) days after the date such payment was due.

  

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B.           If Tenant defaults or breaches any of the other (non-monetary) covenants, agreements, conditions or undertakings herein to be kept, observed and performed by Tenant and such default continues for ten (10) days after notice thereof in writing to Tenant.

 

C.           If Tenant files any petition under any chapter or section of the Federal Bankruptcy Code or any similar law, state or federal, whether now or hereafter existing, or shall file an answer admitting insolvency or inability to pay its debts.

 

D.           If Tenant fails to obtain a stay of any involuntary proceedings under any chapter or section of the Federal Bankruptcy Code within sixty (60) days after the institution thereof.

 

E.           If a trustee or receiver is appointed for Tenant or for a major portion of its property or for any portion of the Premises and such appointment is not vacated and dismissed within sixty (60) days thereafter and in any event prior to any action adverse to the interest of Tenant or Landlord having been taken by such trustee or receiver.

 

F.           If any court takes jurisdiction of a major portion of the property of Tenant or any part of the Premises in any involuntary proceeding for dissolution, liquidation or winding up of Tenant and such jurisdiction is not relinquished or vacated within sixty (60) days.

 

G.           If Tenant makes an assignment for the benefit of its creditors.

 

16.2        Re-Enter of Premises. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, to reenter the Premises, or any part thereof, either with or without process of law, and to expel, remove and evict Tenant and all persons occupying or upon the same under Tenant, using such force as may be lawful and necessary in so doing, and to possess the Premises and enjoy the same as in their former estate and to take full possession of and control over the Premises and the buildings and improvements thereon and to have, hold and enjoy the same and to receive all rental income of and from the same. No reentry by Landlord shall be deemed an acceptance of a surrender of this Lease, nor shall it absolve or discharge Tenant from any liability under this Lease. Upon such reentry, all rights of Tenant to occupy or possess the Premises shall cease and terminate.

 

16.3        Lease Termination. Upon the occurrence of any such Event(s) of Default and at any time thereafter, Landlord shall have the right, at its election, with or without reentry as provided in Section 16.2, to give written notice to Tenant stating that this Lease shall terminate on the date specified by such notice, and upon the date specified in such notice this Lease and the Term hereby demised and all rights of Tenant hereunder shall terminate. Upon such termination, Tenant shall quit and peacefully surrender to Landlord the Premises and the buildings and improvements then situated thereon.

 

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16.4        Relettinq. At any time and from time to time after such reentry, Landlord may re-let the Premises and the buildings and improvements thereon, or any part thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease), and on such conditions (which may include concessions or free rental) as Landlord, in its reasonable discretion, may determine and may collect and receive the rental therefore. However, in no event shall Landlord be under any obligation to re-let the Premises and the buildings and improvements thereon, or any part thereof, and Landlord shall in no way be responsible or liable for any failure to re-let or for any failure to collect any rental due upon any such re-letting. Even though it may re-let the Premises, Landlord shall have the right thereafter to terminate this Lease and all of the rights of Tenant in or to the Premises. Nothing contained in the foregoing shall be deemed a waiver or relinquishment by Tenant of any duty imposed by law on Landlord to mitigate its damages.

 

16.5        Survival of Liability. Unless Landlord shall have notified Tenant in writing that it has elected to terminate this Lease, no such reentry or action in lawful detainer or otherwise to obtain possession of the Premises shall relieve Tenant of its liability and obligations under this Lease; and all such liability and obligations shall survive any such reentry. In the event of any such reentry, whether or not the Premises and the buildings and improvements thereon, or any part thereof, shall have been re-let, Tenant shall pay to Landlord the entire rental and all other charges required to be paid by Tenant up to the time of such reentry of this Lease, and thereafter Tenant, until the end of what would have been the Term of this Lease in the absence of such reentry, shall be liable to Landlord, and shall pay to Landlord, as damages for Tenant's default:

 

A.           The amount of Minimum Base Rent which would be payable under this Lease by Tenant if this Lease were still in effect, less

 

B.           The net proceeds of any re-letting, after deducting all of Landlord's expenses in connection with such re-letting, including without limitation all repossession costs, brokerage commissions, legal expenses, attorneys' fees, alteration costs and expenses of preparation for such re-letting.

 

Tenant shall be liable for and pay such damages to Landlord on a monthly basis on the first day of each month and Landlord shall be entitled to recover from Tenant monthly as the same shall arise. The excess, if any, in any month or months, of the net proceeds described in subparagraph (B) above actually received by Landlord over the Minimum Base Rent described in subparagraph (A) above shall belong to Landlord, provided that such excess shall be credited and applied against Tenant's future obligations arising under this Section 16.5 as the same become due and payable by Tenant hereunder, and that Tenant shall remain liable for future deficiencies, as applicable. Notwithstanding any such reentry without termination, Landlord may at any time thereafter, by written notice to Tenant, elect to terminate this Lease for Tenant's previous breach.

 

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16.6         Cumulative Remedies. Each right and remedy of Landlord provided for in this Lease shall be cumulative and in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise; and the exercise or beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease now or hereafter existing at law or in equity or by statute or otherwise.

 

16.7         Sublessee Defaults. Any violation of any covenant or provision of this Lease, whether by act or omission, by any sublessee or any other persons occupying any portion of the Premises under the rights of Tenant shall be deemed a violation of such provision by Tenant and a default under this Lease. Any such violation shall not be deemed to be a default hereunder if and so long as Tenant in good faith and at its own expense takes and diligently pursues any and all steps it is entitled to take and which steps if completed will cure said default.

 

16.8         Repetitive Rent Payment Defaults.  NOTWITHSTANDING THE PROVISIONS OF THIS LEASE TO THE CONTRARY, IF IN ANY ONE (1) PERIOD OF TWELVE (12) CONSECUTIVE MONTHS, TENANT SHALL HAVE BEEN IN DEFAULT IN THE PAYMENT OF RENT HEREIN AT LEAST THREE (3) TIMES AND LANDLORD, BECAUSE OF SUCH DEFAULTS, SHALL HAVE SERVED UPON TENANT WITHIN SUCH TWELVE (12) MONTH PERIOD THREE (3) OR MORE NOTICES OF LATE PAYMENT, THEN THE FOURTH DEFAULT SHALL BE DEEMED TO BE A NON-CURABLE DEFAULT AND LANDLORD SHALL BE ENTITLED TO IMMEDIATE POSSESSION OF THE PREMISES.

 

16.9         Cure Period. Notwithstanding any other provision of this Section, Landlord and Tenant agree that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be cured within the twenty (20) day period for curing as specified in the written notice relating thereto, then such default shall be deemed to be cured by the other party within such period of twenty (20) days if the other party shall have commenced thereof and shall continue thereafter with all due diligence to effect such cure and does so complete the same with the use of such diligence as aforesaid.

 

16.10        Late Charges. A late charge in the amount of ten percent (10%) of the delinquent payment shall be assessed to any payment required to be made by Tenant to Landlord under the terms of this Lease not received by Landlord within three (3) days after its due date (regardless of whether Tenant has been given notice of such failure of payment). If Tenant tenders to Landlord a check that is returned marked "NSF" or its equivalent, Tenant shall pay Landlord a payment in the amount of twenty percent (20%) of the amount of such non-negotiable check. Tenant's failure to pay any such late charge within three (3) days after Landlord's written demand therefor shall constitute an Event of Default hereunder. In addition to the payments set forth in the preceding two sentences, Tenant shall pay Landlord interest at the rate of eighteen percent (18%) per annum from the date any payment is due until the date such payment is actually received by Landlord.

 

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17.         Condemnation. If title to all or any portion of the Premises is taken by a public or quasi-public authority under any statute or by right of eminent domain of any governmental body, whether such loss or damage results from condemnation of part or all of the Premises, Tenant shall not be entitled to participate or receive any part of the damages or award except where the same shall provide for Tenant's moving or other reimbursable expenses, the portion thereof allocated to the taking of Tenant's trade fixtures, equipment and personal property or to a loss of business by Tenant. Should any power of eminent domain be exercised after Tenant is in possession, such exercise shall not void or impair this Lease unless the amount of the Premises so taken substantially and materially impairs the usefulness of the Premises for the purposes for which they are leased in which case, either party may cancel this Lease by notice to the other within sixty (60) days after such possession. Should only a portion of the Premises be taken and the Premises continue to be reasonably suitable for Tenant's use, the rent shall be reduced from the date of such possession in direct proportion to the reduction in the square footage of the Premises. Notwithstanding the language of this Paragraph, Tenant shall be allowed to separately litigate its damages for loss of its business as a result of any condemnation.

 

18.         Tenant's Waiver of Statutory Rights. In the event of any termination of the Term (or any repossession of the Premises), Tenant so far as permitted by law, waives (i) any notice of reentry or of the institution of legal proceedings to that end; and (ii) the benefits of any laws now or hereafter in force exempting property from liability for rent or for debt.

 

19.         Waiver of Performance. No failure by Landlord or Tenant to insist upon the strict performance of any term or condition hereof or to exercise any right, power or remedy consequent upon a breach thereof and no submission by Tenant or acceptance by Landlord of full or partial rent during the continuance of any such breach shall constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Lease (which shall continue in full force and effect), or the respective rights of Landlord or Tenant with respect to any other then-existing or subsequent breach.

 

20.         Remedies Cumulative. Each right, power and remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Lease now or hereafter existing at law, in equity or otherwise; and the exercise or beginning of the exercise of any one or more of the rights, powers or remedies provided for in this Lease shall not preclude the simultaneous or later exercise of any or all such other rights, powers or remedies.

 

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21.         Conveyance by Landlord. In the event Landlord or any successor Landlord shall convey or otherwise dispose of the Premises, it shall thereupon be released from all liabilities and obligations imposed upon Landlord under this Lease (except those accruing prior to such conveyance or other disposition) and such liabilities and obligations shall be binding solely on the then owner of the Premises.

 

22.         No Personal Liability to Landlord. Tenant shall look solely to Landlord's interest in the Premises for the satisfaction of any judgment or decree requiring the payment of money by Landlord based upon any default under this Lease, and no other property or assets of Landlord, or any partner or member of, or shareholder in, Landlord, shall be subject to levy, execution or other enforcement procedures for satisfaction of any such judgment or decree.

 

23.         Attorneys' Fees. In the event Landlord retains an attorney to enforce its rights under this Lease or to bring suit for possession of the Premises, for the recovery of any sum due hereunder, or for any other relief against Tenant, declaratory or otherwise, arising out of a breach of any term of this Lease, or in the event Tenant should bring any action for any relief against Landlord, declaratory or otherwise, arising out of this Lease, the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, which shall be deemed to have accrued due to the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

 

24.         Provisions Subject to Applicable Law. All rights, powers and remedies provided herein shall be exercised only to the extent that the exercise thereof shall not violate any applicable law and are intended to be limited to the extent necessary so that they shall not render this Lease invalid or unenforceable under any applicable law. If any term of this Lease shall be held to be invalid, illegal or unenforceable, the validity of the other terms of this Lease shall in no way be affected thereby.

 

25.         Right to Cure Tenant's Defaults. In the event Tenant shall breach any term, covenant or provision of this Lease, Landlord may at any time, without notice, cure such breach for the account and at the expense of Tenant. If Landlord at any time, by reason of such breach, is compelled to pay or elects to pay any sum of money or to do any act that will require the payment of any sum of money, or is compelled to incur any expense, including reasonable attorneys' fees, incurred in instituting, prosecuting or defending any actions or proceedings to enforce Landlord's rights under this Lease or otherwise, the sum or sums so paid by Landlord, with all interest, costs and damages, shall be deemed to be Additional Charges and shall be paid by Tenant to Landlord on the first day of the month following the incurring of such expenses of the payment of such sums and shall include interest at the rate of eighteen percent (18%) per annum from the date Landlord makes a payment until Tenant pays such Additional Charges in full.

 

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26.         Notices. Any notice to be given by Landlord or Tenant shall be given exclusively in writing and delivered in person or by overnight mail service to Landlord or Tenant, forwarded by certified or registered mail, postage prepaid, or sent via facsimile transmission, to the address indicated in the Fundamental Lease Provisions, unless the party giving any such notice has been notified, in writing, of a change of address. Any such notice shall be deemed effective (a) upon receipt or refusal to accept delivery, if personally delivered; (b) on the next business day following delivery to the overnight courier; (c) in the case of certified mailing, on the date of actual delivery as shown by the addressee's receipt or upon the expiration of three (3) business days following the date of mailing, whichever occurs first; or (d) in the case of facsimile transmission, upon receipt (a written confirmation of successful transmission from the transmitting facsimile machine being prima facie evidence of such receipt).

 

27.         Signs. Tenant shall not place, alter, exhibit, inscribe, paint or affix any sign, awning, canopy, advertisement, notice or other lettering on any part of the outside of the Premises, or of the building of which the Premises is a part, or inside the Premises if visible from the outside, without first obtaining Landlord's written approval thereof, which shall not be unreasonably withheld, and if so approved, Tenant shall maintain the same in good condition and repair. All signs shall comply with applicable ordinances or other governmental restrictions and with all applicable rules and regulations then in force or as may be put in force and effect from time to time by any governmental authority or by Landlord.

 

28.         Landlord's Inspections.

 

28.1        Inspection. Landlord reserves the right to, at all reasonable times, by itself or by its duly authorized agents, employees and contractors, and without notice to go upon and inspect the Premises and every part thereof, to enforce or carry out the provisions of this Lease, to make, at its option, repairs, installations, alterations, improvements and additions to the Premises or the building of which the Premises are a part, to perform any defaulted obligation of Tenant or for any other proper purposes. Landlord also reserves the right to install or place upon or affix to the roof and exterior walls of the Premises: equipment, signs, displays, antennae and any other object or structure of any kind, provided the same shall not interfere with Tenant's occupancy or materially impair the structural integrity of the building of which the Premises are a part.

 

28.2        Presenting for Sale or Lease. Landlord hereby reserves the right during usual business hours to enter the Premises and to show the same for purposes of sale, lease or mortgage, and during the last six (6) months of the term of this Lease, or the extension thereof, to exhibit the same to any prospective tenant, and to display appropriate signage for such sale or lease. Prospective purchasers or tenants authorized by Landlord may inspect the Premises during reasonable hours at any time.

 

 

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29.         Estoppel Certificate. Tenant will execute, acknowledge and deliver to Landlord, within seven (7) days following a written request therefor, a certificate certifying (a) that this Lease is unmodified and in full force (or, if there have been modifications, that the Lease is in full force and effect, as modified, and stating the modifications); (b) the dates, if any, to which rent, Additional Charges and other sums payable hereunder have been paid; (c) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; and (d) this Lease is and shall be subordinate to any existing or future deed of trust, mortgage or security agreement placed upon the Premises or the Project by the Landlord or owner of the Property. Any claim of Tenant in contradiction of any of the foregoing matters must be set forth with specificity in the certificate. Any such certificate may be relied upon by any prospective purchaser or encumbrancer of the Premises or any part thereof. Tenant's failure to deliver such certificate within the time permitted hereby shall be conclusive upon Tenant that this Lease is in full force and effect, except to the extent any modification has been represented by Landlord, and there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance. In addition, at Landlord's option, after notice to Tenant and expiration of applicable grace period under this Lease, such failure of Tenant to deliver such certificate shall constitute an Event of Default. Tenant acknowledges and agrees that the promise to issue such statements pursuant hereto are a material consideration inducing Landlord to enter into this Lease and that the breach of such promise shall be deemed a material breach of this Lease.

 

30.         Waiver of Trial By Jury. TENANT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR TENANT AGAINST EACH OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES. TENANT AGREES THAT EXCLUSIVE JURISDICTION FOR ALL LEGAL ACTIONS SHALL BE COCONINO COUNTY SUPERIOR COURT.

 

31.         Recording. Neither this Lease nor a memorandum thereof, may be recorded, or otherwise made public, by any means, without the express written consent of Landlord. Any such recording or publication without such consent, shall, at Landlord's option, cause this Lease and all rights of Tenant hereunder, to be immediately forfeited and of no further force and effect, provided, however, that Landlord shall have the right to such action against Tenant, for damages resulting from such recording, as Landlord shall be entitled to by law.

 

32.         Subordination. This Lease is hereby declared to be subject and subordinate to the lien of any present or future encumbrance or encumbrances upon the Premises or the Project, irrespective of the time of execution or the time of recording of any such encumbrance or encumbrances. Landlord shall use its good faith effo