GUARANTY
This guaranty by Los Abrigados Partners Limited Partnership, an Arizona
limited partnership, with offices located at 2111 East Highland, Suite 210,
Phoenix, AZ 85016 ("Guarantor") for the benefit of Resort Funding, Inc; a
Delaware corporation, with offices located at Two Clinton Square, Syracuse, New
York 13202 ("RFI") is made as of the fifteenth (15th) day of June, 1997
("Guaranty").
WHEREAS RFI is entering into a Settlement Agreement ("Agreement") and a
promissory note ("Note") with Los Abrigados Partners Limited Partnership, an
Arizona limited partnership, ILE Sedona Incorporated, an Arizona corporation,
and ILX Incorporated, an Arizona corporation (collectively "Developers") bearing
even date herewith; and
WHEREAS, RFI is willing to enter into the Agreement and the Note with
Developers only if Guarantor agrees to guaranty the full, timely, faithful
performance of, payment under and compliance with the Agreement, the Note and
all other documents and agreements called for thereunder (collectively the
"Documents").
NOW, THEREFORE, in order to induce RFI to enter into the Agreement and
the Note with the Developers and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Guarantor hereby
unconditionally covenants and agrees with RFI as follows:
1. The guarantor hereby unconditionally guaranties to RFI:
(a) The full, complete and punctual performance by Developers of all
the terms, covenants, obligations and conditions contained in the
documents ("Obligations") and
(b) The payment of all sums at any time owed by Developers under the
Documents as and when the same shall become due and payable, whether at
maturity by acceleration or otherwise, according to the terms of the
Documents and all losses, cost, expenses and reasonable attorneys fees
incurred by reason of the occurrence of an event of default under the
Documents (collectively, the "Indebtedness"). In the case of any
failure by Developers to pay the Indebtedness when due, the Guarantor
hereby unconditionally agrees to immediately make such payment as and
when the same shall become due and payable, whether at maturity, by
acceleration or otherwise.
2. Guarantor hereby agrees that its Obligations hereunder shall be
unconditional, irrespective of:
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(a) The absence of any attempt to collect from Developers or any other
Guarantor;
(b) Whether any other action has been instituted or taken to enforce
the same;
(c) The waiver or consent by RFI with respect to any provisions of the
Documents;
(d) The validity or enforceability of the guaranty against one or more
of any other Guarantors;
(e) The validity or enforceability of the Agreement or the Documents;
or
(f) Any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
3. Guarantor hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of receivership or bankruptcy of
Developers, protest or notice with respect to the Indebtedness and all demands
whatsoever and covenants that its guarantee will not be discharged except by
complete performance of the Obligations of Developers contained in the
Documents.
4. Upon the occurrence of an Event of Default by Developers, RFI may, at its
option, proceed directly and at once, without notice, against the Guarantor to
collect and recover the full amount of its liability hereunder, or any portion
thereof, without proceeding against Developers or any other person, or
foreclosing upon, selling, or otherwise disposing of or collecting or applying
any property, real or personal, RFI may then hold as security for such
Indebtedness.
5. Guarantor authorizes RFI without notice or demand and without affecting
the liability of the Guarantor hereunder, from time to time to:
(a) Renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Indebtedness or any part
thereof;
(b) Accept partial payment on the Indebtedness;
(c) Take and hold security for the payment under this Guarantee or of
the Indebtedness and exchange, enforce, waive and release any such
security;
(d) Apply such security and direct the order or manner of
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sale thereof as RFI in its discretion may determine;
(e) Settle, release, compromise, collect or otherwise liquidate any
indebtedness and/or any security therefore in any manner, without
affecting or impairing the Obligations of Guarantor hereunder; and
(f) RFI may, without notice, assign this Guarantee in whole or in
part.
6. Guarantor shall have no right of subrogation and Guarantor waives any right
to enforce any remedy which RFI now has or may hereafter have against Developers
and any benefit of, and any right to participate in, any security at any time
held by RFI. Guarantor waives set-off, counterclaim, presentment, demand for
performance, notice of non-performance, protest, notice of protest, notice of
dishonor and notice of acceptance of the Guaranty and of the existence, creation
or incurring of new or additional Indebtedness.
7. Guarantor will not take any action which will either:
(a) Force the sale of Developers' property in order to satisfy the
indebtedness; or
(b) Affect in any manner any and all of RFI's liens, Security
Interests, claims or rights of any kind that RFI may now have or
hereafter acquire against Developers of Developers property.
8. Guarantor will refrain from taking any action which is in any way
inconsistent with or in derogation of the rights of RFI hereunder.
9. This Guarantee constitutes the entire understanding of the parties with
respect to the subject matter hereof and this Guaranty or any provision hereof
may be amended, terminated, changed, waived or discharged only by an instrument
in writing signed by RFI and the Guarantor hereunder.
10. No failure or delay by RFI or the holder or assignee of any agreement
in exercising any right, power or privilege hereunder or thereunder shall
operate as a waiver thereof; nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege.
11. In the event that one or more of the provisions of this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Guaranty, but this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
12. This Guaranty and the rights of the parties hereunder shall be
interpreted, construed and enforced in accordance with the laws and public
policies of the State of New York, without regard to the principles of conflict
of laws.
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13. In any action to enforce the provisions of this Guaranty, personal
jurisdiction and venue shall be, at the option of RFI, in the Supreme Court of
the State of New York, County of Onondaga or the United States District Court
for the Northern District of New York.
IN WITNESS WHEREOF, this guaranty has been executed by the
undersigned on the date above first written.
GUARANTOR
LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP
By: ILE Sedona Incorporated
Its: General Partner
By: /s/ Joseph P. Martori
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Joseph P. Martori, Chairman