Unofficial Document ‘When recorded, please return to; Janet Jackim Gust Rosenfeld, PLC 201 E. Washington, #800 Phoenix, AZ 85004 (602-257-7662 AGREEMENT TO TERMINATE. CONDOMINIUM AND CONDOMINIUM DECLARATION AND AGREEMENT TO ADOPT AMENDMENT TO DECLARATION OF RESTRICTIONS REGARDING WHISPERING WINDS CASITAS UNIT 1 CONDOMINIUMS, THIS AGREEMENT TO TERMINATE CONDOMINIUM AND CONDOMINIUM DECLARATION AND AGREEMENT TO ADOPT AMENDMENT TO DECLARATION OF RESTRICTIONS REGARDING WHISPERING WINDS CASITAS UNIT 1 CONDOMINIUMS (collectively, “Agreement”) is entered into as of the [4 day of February, 2006, by and among GLH I Whispering Winds, LLC (“Declarant”), an Arizona limited liability company, Whispering Winds Casitas Unit 1 Condominium Homeowners Association (the “Association”), an Arizona non-profit corporation, and John R. Osborne (“Osborne”), a ‘married man, in his capacity as President of the sole Director of the Board of Directors of the Association, RECITALS WHEREAS, Declarant is the owner of fee title to that certain real property described on Exhibit “A” attached hereto and incorporated herein (“Declarant’s Property”). WHEREAS, the Association is the owner of fee title to that certain real property described on Exhibit “B” attached hereto and incorporated herein (“Common Elements") Pursuant to that cert: Quitclaim Deed between Declarant, as tor, and the ‘Association, as grantee, dated February 4 , 2006, and recorded on 2/1 Iss inthe Official Records of Maricopa County, Arizona, as instrument # 2006 0275 WHEREAS, Declarant’s Property and the Common Elements consist of all of the real property (collectively, the “Property”) described in Exhibit “C” attached hereto and incorporated herein, which is located in Maricopa County, Arizona, and further described in and subject to that certain Amendment and Restatement of Declaration of Horizontal Property Regime (“Condominium”) and of Covenants, Conditions and Restrictions Establishing and Governing Whispering Winds Casitas Unit 1 Condominiums (“Original Restrictions”), dated June 13, 2005, and recorded on June 24, 2005, in the Official Records of Maricopa County, Arizona, as instrument #20050870246.20060393350 WHEREAS, the Association was organized by Declarant on June 14, 2005, to administer and enforce the Original Restrictions with respect to the Property and to exercise the rights, powers and duties set forth therein. WHEREAS, Osborne is the sole director on the Board of Directors and officer of the Association and was appointed by the Declarant pursuant to the Articles of Incorporation of the Association, dated June 14, 2005. WHEREAS, A.R.S. § 33-1228 allows the termination of the Condominium by agreement of unit owners of units to which at least eighty percent of the votes in the Association are allocated. WHEREAS, as of the date of this Agreement, Declarant and the Association are the sole owners of the Property (collectively, “Owners”). On the date of this Agreement, Declarant and Association met and did approve, in satisfaction of the requirements of, and pursuant to, Section 11.0 of the Original Restrictions and A.R.S, § 33-1228, and thereafter did unanimously and validly agree to terminate the Condominium, as more particularly described in the Consent Resolution, attached hereto and incorporated herein as Exhibit “E” (Consent Resolution”). The Owners desire to terminate the Condominium and make other provisions for the Property as described herein. WHEREAS, as of the date of this Agreement, the Owners met and did approve, in satisfaction of the requirements of, azdauzexnt to ARS. § 33-1801 ef seq., and thereafter did unanimously and validly agree to adopt, Amendment #1 to Amendment and Restatement of Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions Establishing and Governing Whispering Winds Casitas Unit 1 Condominiums (“Amendment #1”) as it relates to the Property, attached hereto as Exhibit “E” and incorporated herein, as such adoption is more particularly described in the Consent Resolution . The Owners desire to adopt Amendment #1 and make other provisions for the Property as described herein. AGREEMI NOW, THEREFORE, the Owners hereby agree to the following: Defi Defined terms appear in this Agreement with the first letter of each word in the term capitalized. Unless otherwise defined herein, defined terms appearing in this Agreement shall have the meanings attributed to them in the Original Restrictions as modified by Amendment #1 2. Effective Date. As among the Owners with respect to effectuating the terms of this Agreement, this Agreement shall be effective as of the date of this Agreement. As to all other Persons, this Agreement shall be effective on the later to occur of (a) its execution by all parties hereto; and (b) its Recordation and this, Agreement shall relate back to the date of this Agreement (“Effective Date”).20060393350 inium Terminated; Plat. As of the Effective Date, the Condominium is y terminated except as required to effectuate the terms of this Agreement relative to the Property. To the extent the Plat for Whispering Winds Casitas Unit 1 Condominiums, as defined in the Original Restrictions, could be construed or deemed to be revoked or cancelled by this Agreement, the parties hereto hereby ratify and reinstate the Plat with respect to the Property until such time as a new plat or replat is filed and/or recorded. Adoption of Amendment #1 for the Community of Whispering Winds Casitas Unit 1. As of the Effective Date and immediately subsequent to the termination of the Condominium but concurrently with the Recordation of Amendment #1, each of the Owners hereby submits its respective Property to Amendment #1 and each hereby declares that its respective Property shall be held and conveyed subject to the terms, covenants, conditions and restrictions set forth in the Original Restrictions as modified by Amendment #1. Each Person who acquires any right, title or interest in the Property, or any part thereof, agrees to abide by all of the provisions of the Original Restrictions as modified by Amendment #1. The Original Restrictions as modified by Amendment #1 shall be enforceable by the Association, as more particularly described in Subsection 5. below. . The Owners desire to modify the Articles of Incorporation and Bylaws of the Association as required to effectuate the terms of this Agreement relative to the Property and Osborne consents thereto and to reasonable, and necessary actions to be taken on behalf of n, including but not limited to the following: Renaming the Association to “Whispering Winds Casitas Unit 1 ‘Owners Association” (“Association”), or other similar name. b. Declarant shall take steps to amend the Articles and Bylaws of the Association and adopt Amendment #1 as of the Effective Date, ot as soon as reasonably practical thereafter, to delete all references to “condominium”, and provisions applicable thereto, contained therein. On approval of the modified Articles by the Arizona Corporation Commission, Declarant shall revise the Bylaws consistent with the modified and approved Articles c. As described in greater detail in Amendment #1, the Association shall ‘manage, maintain, repair and replace all Common Elements, except for the Limited Common Elements, if any, pursuant to the Original Restrictions as modified by Amendment #1. d. The Owners, and their successors and assigns, shall be obligatory members of the Association and shall be liable for assessments in accordance with the Original Restrictions as modified by Amendment “120060393350 Miscellaneous. 61 6.2 64 65 6.6 67 Appointment of Declarant. The Owners hereby appoint Declarant, and Declarant hereby accepts such appointment, to take all such actions as appropriate or desirable to effectuate the terms of this Agreement relative to the Property and the Asso Consent of Lienholders, If required in Declarant’s discretion, Declarant agrees to obtain the consent of all lenders and/or lienholders holding interests in and to the Property to the terms and provisions of this Agreement prior to the Effective Date. Disclosure. Declarant agrees to prepare and have recorded in the Official Records of the Maricopa County, Arizona Assessor that certain form of disclosure required by A.R.S. § 33-1807 relative to the Association, Amendment of Public Report. After the Effective Date, Declarant agrees to prepare an amendment consistent with this Agreement to the public report of the Whispering Winds Casitas Unit 1 Condominiums, registration 4DM05-050045, and obtain the approval thereof by the Arizona Department of Real Estate. In the event of any discrepancies, inconsistencies or conflicts between the pasta of this Agreement and the Articles, Bylaws, or the Original Restrictions as modified by Amendment #1, this Agreement shall prevail until such time as Amendment #1 shall be recorded as described in Section 7. below and at that time the Original Restrictions as modified by Amendment #1 shall control. es. In the event any party hereto employs an attorney or attomeys to enforce this Agreement, the prevailing party in any such action shall be entitled to recover from the other party its reasonable attorneys’ fees and costs and expenses incurred in the action. N All notices, demands, statements or other communications required to be given to or served on any party to this Agreement shall be in writing and shall be deemed to have been duly given and served if delivered personally or sent by United States mail, postage prepaid, return receipt requested, addressed to the party, at the address indicated below. ‘A notice given by mail, whether regular, certified, or registered, shall be deemed to have been received by the person to whom the notice was addressed on the earlier of the date the notice is actually received or three days afier the notice is mailed.68 69 6.10 611 6.12 6.13 6.14 7. Recordation of this Agreement, This Agreement shall be recorded in the Offi 20060393350 Topical Headings. The marginal or topical headings of the sections contained in this Agreement are for convenience only and do not define, limit or construe the contents of the sections or of this Agreement. Severability. Invalidation of any one of the terms or provisions contained in this Agreement by judgment or court order shall in no way affect any other terms or provisions, which shall remain in full force and effect. Final Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This ‘Agreement may be modified only by a further writing that is duly executed by all parties hereto. Cooperation _and Additional Documents. Each party hereto agrees to reasonably cooperate with the other parties to effectuate this Agreement and further agrees to execute such other documents and instruments and take such further actions as Declarant may reasonably request. Counterparts. This Agreement may be executed in one or more counterparts, each of which may be executed by one or more of the signatory parties hereto. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one legally effective document. Incorporation _by Reference. Any document incorporated herein by reference shall be made a part hereof for all purposes, and references in this Agreement to such document shall be deemed to include such reference and incorporation. Governing Law and Venue. This Agreement will be executed and delivered in and shall be governed by and construed in accordance with the substantive laws and judicial decisions of the State of Arizona (regardless of Arizona conflict of laws principles or the residence, location, domicile or place of business of any party hereto) and applicable federal laws, rules and regulations. ‘The parties hereto agree that venue shall reside and for all purposes be proper in Maricopa County Superior Court, in the State of Arizona, and each party further waives any objection thereto based on improper venue or the alleged inconvenience of such a court as a forum in which to litigate or arbitrate the action. I Records of Maricopa County, Arizona, Assessor on or before April 1, 2006, after which date this Agreement shall be null and void ab initio.20060393350 Sale of Common Elements, All right, title and interest in and to the Common Elements, as more particularly described in the Original Restrictions, of Declarant were conveyed to the Association on February )4{ , 2006. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.20060393350 IN WITNESS WHEREOF, the parties whose signatures appear below hereby center into this Agreement, “Declarant” GLH I Whispering Winds, LLC, an Arizona limited liability company By: Fidelity Management Alliance I, a Nevada corporation, Manager John R. Osborne, Manager “Association” Whispering Winds Casitas Unit 1 Condominium Association, an Arizona non- profit corporation By: GLH 1 Whispering Winds, LLC, an Arizona limited liability company, Director Fidelity Management Alliance I, a Nevada corporation, Manager brn John R. Osborne, President “Osborne” John R. Osborne, a married man Ob. R. Osborne, in his capacity as President of the sole Director of the Board of ctors of the Whispering Winds Casitas Unit | Condominium Homeowners ‘sociation, an Arizona non-profit corporation20060393350 STATE OF Nevada Cal Fora 5 ) County of Clark Sens Chee) on ee 2, 2006, before me, the undersigned Notary Public, personally appeared John R. Osborne, personally known to me (or proved-to-me-on-the basis-of satisfactory-evidence) to be the person(#) whose name(s) isfare subscribed to the within instrument and acknowledged to me that he/shedthey executed the same in his/hes4heir authorized capacity(ies), and that by his/hewheir signature(e) on the instrument the person(s) or the entity upon behalf of which the person(s)-acted, executed this instrument Kevuld €. Ertl My Commission Expires: o¢hy tes 21,2007 Notary Public WITNESS my hand and official seal.20060393350 Exhibit "A" DECLARANT'S PROPERTY PARCEL NO. I: Units 1A through 1G, inclusive; Units 2A through 2G, inclusive; Units 3A through 3G, inclusive; Units 4A through 4G, inclusive; Units SA through SG, inclusive; Units 6A through 6G, inclusive, WHISPERING WINDS CASITAS UNIT I, according to Declaration of Horizontal Property Regime recorded in Docket 10638, page 368, and in Book 172 of Maps, page 28, and Affidavit of Correction recorded in Docket 10693, page 16; and Amended in Docket 11370, page 654; PARCEL NO. 2: ‘A parcel of land situated in the Southwest quarter of Section Twenty-two (22), Township one (1) North, Range seven (7) East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more fully described as follows. ‘Commencing from a tie at the Southwest comer of said Section 22; thence North 00 degrees 09 minutes 07 seconds along the West line of said Section, 1319.95 feet to the Southwest comer of the Northwest quarter of the Southwest quarter of said Section; thence South 89 degrees 59 minutes 53 seconds East along the South line Of the Northwest quarter of the Southwest quarter of said Section 661.74 feet; thence North 00 degrees 08 minutes 26 seconds East along the East line of the East half of the West half of the Northwest quarter of the Southwest quarter of said Section a distance of 307.00 feet to the Northeast comer of WHISPERING WINDS CASITAS UNIT I, the Point of Beginning, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, in Book 172 of Maps, page 28; thence North 89 degrees 59 minutes 53 seconds West along the North line of WHISPERING WINDS CASITAS UNIT I, 214.56 feet, thence North 00 degrees 08 minutes 36 seconds West 86.50 feet; thence South 89 degrees 59 minutes 53 seconds 214.99 feet; thence South 00 degrees 08 minutes 26 seconds West 86.50 feet to the Point of Beginning, 639519120060393350 Exhibit "B" COMMON ELEMENTS PARCEL NO. 1 Units 1A through 1G, inclusive; Units 2A through 2G, inclusive; Units 3A through 3G, inclusive; Units 4A through 4G, inclusive; Units SA through 5G, inclusive; Units 6A through 6G, inclusive, WHISPERING WINDS CASITAS UNIT I, according to Declaration of Horizontal Property Regime recorded in Docket 10638, page 368, and in Book 172 of Maps, page 28, and Affidavit of Correction recorded in Docket 10693, page 16; and Amended in Docket 11370, page 654; PARCEL NO. 2 A parcel of land situated in the Southwest quarter of Section Twenty-two (22), Township one (1) ‘North, Range seven (7) East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more fully described as follows. Commencing from a tie at the Southwest comer of said Section 22; thence North 00 degrees 09 minutes 07 seconds along the West line of said Section, 1319.95 feet to the Southwest comer of the Northwest quarter of the Southwest quarter of said Section; thence South 89 degrees 59 minutes 53 seconds East along the South line’of tiie Northwest quarter of the Southwest quarter of said Section 661.74 feet; thence North 00 degrees 08 minutes 26 seconds East along the East line of the East half of the West half of the Northwest quarter of the Southwest quarter of said Section a distance of 307.00 feet to the Northeast comer of WHISPERING WINDS CASITAS UNIT |, the Point of Beginning, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, in Book 172 of Maps, page 28; thence North 89 degrees 59 minutes 53 seconds West along the North line of WHISPERING WINDS CASITAS UNIT I, 214.56 feet, thence North 00 degrees 08 minutes 36 seconds West 86.50 feet; thence South 89 degrees 59 minutes 53 seconds 214.99 feet; thence South 00 degrees 08 minutes 26 seconds West 86.50 feet to the Point of Beginning. Excepting from Parcel Nos. | and 2 above, the fee title, including all improvements, the ground, subsurface and air space lying within the confines of the land depicted as Units 1A through 1G, inclusive; Units 2A through 2G, inclusive; Units 3A through 3G, inclusive; Units 4A through 4G, inclusive; Units 5A through 5G, inclusive; Units 6A through 6G, inclusive, WHISPERING WINDS CASITAS UNIT 1, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, recorded in Book 172 of Maps, page 28. 639522. 1020060393350 Exhibit "C" THE PROPERTY DECLARANT'S PROPERTY: PARCEL NO. 1: Units 1A through 1G, inclusive; Units 2A through 2G, inclusive; Units 3 through 3G, inclusive; Units 4A through 4G, inclusive; Units SA through SG, inclusive; Units 6A through 6G, inclusive, WHISPERING WINDS CASITAS UNIT I, according to Declaration of Horizontal Property Regime recorded in Docket 10638, page 368, and in Book 172 of Maps, page 28, and Affidavit of Correction recorded in Docket 10693, page 16; and Amended in Docket 11370, page 654; PARCEL NO. 2: A parcel of land situated in the Southwest quarter of Section Twenty-two (22), Township one (1) North, Range seven (7) East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more fully described as follows. Commencing from a tie at the Southwest corner of said Section 22; thence North 00 degrees 09 ‘minutes 07 seconds along the West line of said Section, 1319.95 feet to the Southwest comer of the Northwest quarter of the Southwest quarter of said Section; thence South 89 degrees 59 minutes 53 seconds East along the South line'Ot the Northwest quarter of the Southwest quarter of said Section 661.74 feet; thence North 00 degrees 08 minutes 26 seconds East along the East line of the East half of the West half of the Northwest quarter of the Southwest quarter of said Section a distance of 307.00 feet to the Northeast corner of WHISPERING WINDS CASITAS UNIT I, the Point of Beginning, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, in Book 172 of Maps, page 28; thence North 89 degrees 59 minutes 53 seconds West along the North line of WHISPERING WINDS CASITAS UNIT |, 214.56 feet, thence North 00 degrees 08 minutes 36 seconds West 86.50 feet; thence South 89 degrees 59 minutes 53 seconds 214,99 feet; thence South 00 degrees 08 minutes 26 seconds West 86.50 feet to the Point of Beginning, COMMON EI : PARCEL NO. 1 Units 1 through 1G, inclusive; Units 2A through 2G, inclusive; Units 3A through 3G, inclusive; Units 4A through 4G, inclusive; Units 5A through 5G, inclusive; Units 6 through 6G, inclusive, WHISPERING WINDS CASITAS UNIT I, according to Declaration of Horizontal Property Regime recorded in Docket 10638, page 368, and in Book 172 of Maps, page 28, and Affidavit of Correction recorded in Docket 10693, page 16; and Amended in Docket 11370, page 654; 63952511 MW20060393350 PARCEL NO. 2: A parcel of land situated in the Southwest quarter of Section Twenty-two (22), Township one (1) North, Range seven (7) East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more fully described as follows. Commencing from a tie at the Southwest comer of said Section 22; thence North 00 degrees 09 minutes 07 seconds along the West line of said Section, 1319.95 feet to the Southwest comer of the Northwest quarter of the Southwest quarter of said Section; thence South 89 degrees 59 minutes 53 seconds East along the South line of the Northwest quarter of the Southwest quarter of said Section 661.74 feet; thence North 00 degrees 08 minutes 26 seconds East along the East line of the East half of the West half of the Northwest quarter of the Southwest quarter of said Section a distance of 307.00 feet to the Northeast comer of WHISPERING WINDS CASITAS UNIT I, the Point of Beginning, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, in Book 172 of Maps, page 28; thence North 89 degrees 59 minutes 53 seconds West along the North line of WHISPERING WINDS CASITAS UNIT I, 214.56 feet, thence North 00 degrees 08 minutes 36 seconds West 86.50 feet; thence South 89 degrees 59 minutes 53 seconds 214.99 feet; thence South 00 degrees 08 minutes 26 seconds West 86,50 feet to the Point of Beginning. Excepting from Parcel Nos. 1 and 2 above, the fee tite, including all improvements, the ground, subsurface and air space lying within the confines of the land depicted as Units 1A through 1G, inclusive; Units 2A through 2G, inclusive; Units 3A through 3G, inclusive; Units 4A through 4G, inclusive; Units 5A through 5G, inclusivg:,Jnits,6A through 6G, inclusive, WHISPERING WINDS CASITAS UNIT 1, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, recorded in Book 172 of Maps, page 28 63952520060393350 EXHIBIT "I CONSENT RESOLUTION OF THE MEMBERS OF WHISPERING WINDS CASITAS UNIT 1 CONDOMINIUM HOMEONWERS ASSOCIATION An Arizona non-profit corporation, WHEREAS, the undersigned, consisting of all of the Members (collectively, “Members”) of the Whispering Winds Casitas Unit 1 Condominium Homeowners Association, an Arizona non-profit corporation (the “Corporation”), do hereby consent to and adopt the following resolutions: WHEREAS, the Corporation is an Arizona corporation active and in good standing with the State of Arizona. The Corporation is an association of owners of units of real property located in Maricopa County, Arizona (collectively, the “Property”) generally known as Whispering Winds condominiums pursuant to that certain Amendment and Restatement of Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions Establishing and Governing Whispering Winds Casitas Unit 1 Condominiums, dated June 13, 2005, and recorded in the Official Records.af.Mevicopa County, Arizona, as Instrument # 20050870246, on June 24, 2005 (the “Original Restrictions”); AND WHEREAS, pursuant to a meeting (the “Meeting”) of all of the Members, after Notice duly made and delivered as required by the Original Restrictions, the Members did meet and did approve the termination of the Condominium pursuant to that certain Agreement to Terminate Condominium and Condominium Declaration and Agreement to Adopt Amendment to Declaration of Restrictions Regarding Whispering Winds Casitas Unit 1 Condominiums (the “Agreement to Terminate”), attached hereto as Exhibit “A” and incorporated herein; AND WHEREAS, at the Meeting all of the Members further agreed to enter into and adopt that certain Amendment #1 to Amended and Restated Declaration of Covenants, Conditions and Restrictions for the Community of Whispering Winds Casitas Unit 1 (“Amendment #1) as to the Property, attached hereto as Exhibit “B” and incorporated herein; AND WHEREAS, the Corporation desires to appoint a person or persons and authorize same to carry out the Agreement to Terminate and Amendment #1 NOW, THEREORE, be it resolved that John R. Osborne, as President of the sole Director of the Board of Directors of the Corporation, is hereby appointed to execute and deliver any agreements, certificates, letters and other documents or instruments, and perform any other acts, deemed necessary or advisable to effectuate the terms and provisions of the Agreement to Terminate and the Amendment #1, and to consummate any transaction contemplated thereby, and this appointment of John R. Osbome is hereby authorized, ratified and approved; and John 1320060393350 R. Osbome is hereby authorized to take any other action he deems necessary or desirable in connection with effectuating the terms and provisions of the Agreement to Terminate and ‘Amendment #1, including the execution and delivery of such other documents as he deems appropriate; and further RESOLVED, that, pursuant to the Agreement to Terminate, the Corporation is hereby authorized to register and change its name to “Whispering Winds Casitas Unit 1 Owners Association” and John R. Osborne is hereby appointed to execute and deliver any agreements, certificates, letters and other documents or instruments, and perform any other acts deemed necessary or advisable to adopt and register said name in the State of Arizona and elsewhere, and to consummate any transaction contemplated thereby; and further RESOLVED that John R. Osbome is individually authorized, on behalf of the Corporation, to execute and deliver each document required or contemplated by him for effectuating the terms and provisions of the Agreement to Terminate and Amendment #1, including the registration with the State of Arizona of the Corporation's name as he may approve, his execution thereof to be conclusive evidence of his approval and the Corporation's approval of such documents; and further REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. 1420060393350 The Members of the Corporation have caused this Consent Resolution to be executed as of February __, 2006. MEMBERS OF: WHISPERING WINDS CASITAS UNIT 1 CONDOMINIUM HOMEOWNERS. ASSOCIATION, an Arizona non-profit corporation GLH I WHISPERING WINDS, LLC, an Arizona limited liability company, Sole Member By: Fidelity Management Alliance I, a Nevada corporation, Manager By: John R. Osborne, President ACCEPTED AND ACKNOWLEDGED: GLH 1 Whispering Winds, L Sole Director an Arizona limited liability company, Sole Member and By: Fidelity Management Alliance I, a Nevada corporation, Manager By: John R. Osbome, President20060393350 EXHIBIT "E" AMENDMENT #1 1620060393350 ‘When recorded, return to: Janet Jackim Gust Rosenfeld, PLC 201 E, Washington, #800 Phoenix, AZ 85004 AMENDMENT #1 TO AMENDMENT AND RESTATEMENT OF DECLARATION OF HORIZONTAL PROPERTY REGIME AND OF COVENANTS, CONDITIONS AND RESTRICTIONS GOVERNING WHISPERING WINDS CASITAS UNIT I MARICOPA COUNTY, ARIZONA20060393350 THIS AMENDMENT #1 TO AMENDMENT AND RESTATEMENT OF DECLARATION OF HORIZONTAL PROPERTY REGIME AND OF COVENANTS, CONDITIONS AND — RESTRICTIONS GOVERNING WHISPERING WINDS CASITAS UNIT 1 (“Amendment #1”) is entered into as of February __, 2006, by and among GLH I WHISPERING WINDS, L.L.C. (‘Declarant’), an Arizona limited liability company, and WHISPERING WINDS CASITAS UNIT 1 CONDOMINIUM HOMEOWNERS ASSOCIATION (the Association”), an Arizona non-profit corporation. RECITALS WHEREAS, Declarant is the owner of fee title to all of that certain real property described on Exhibit “A” attached hereto and incorporated herein (“Declarant’s Property”), WHEREAS, that certain real property referred to herein as the Common Elements, hereinafter defined, described on Exhibit “B” attached hereto and incorporated herein, is owned in fee by the Association pursuant to that certain Quitclaim Deed, dated February __, 2006, and recorded on February __, 2006, as instrument # in the Official Records of the Maricopa County, Arizona Recorder (the “Common Elements”). WHEREAS, Declarant’s Property» Sommon Elements consist of all of the real property (collectively, the “Property”) described in Exhibit “C” attached hereto and incorporated herein, which is located in Maricopa County, Arizona, and further described in and subject to the Amendment and Restatement of Declaration of Horizontal Property Regime (“Condominium”) and of Covenants, Conditions and Restrictions Establishing and Governing Whispering Winds Casitas Unit 1 Condominiums (“Original Restrictions”), dated June 13, 2005, and recorded on June 24, 2005, in the Official Records of Maricopa County, Arizona Recorder as instrument #20050870246, attached hereto as Exhibit “D” and incorporated herein WHEREAS, the Association was organized by Declarant on June 14, 2005, to administer and enforce the Original Restrictions with respect to the Property and to exercise the rights, powers and duties set forth therein. WHEREAS, A.R.S. § 33-1228 allows the termination of the Condominium by agreement of unit owners of units (collectively, “Unit Owners”) to which at least eighty percent of the votes in the Association are allocated. Declarant represents all of the Unit Owners. WHEREAS, on February __, 2006, the Unit Owners met and did approve, in satisfaction of the requirements of, and pursuant to, Section 12.4 of the Original Restrictions and A.R.S. § 33-1228, and thereafter did unanimously and validly agree to terminate the Condominium20060393350 WHEREAS, on February __, 2006, the Unit Owners met and did approve, in satisfaction of the requirements of, and pursuant to ARS. § 33-1801 ef seq., and thereafter did unanimously and validly agree to adopt this Amendment #1 as it relates to the Property. WHEREAS, the Unit Owners and the Association desire to adopt this Amendment #1, carry out the terms of that certain Agreement to Terminate Condominium and Condominium Declaration, dated February ___, 2006, and entered into by and between Declarant and the Association (the “Termination Agreement”), and. make other provisions for the Property as described herein, AGREEMENTS NOW, THEREFORE, the Unit Owners and the Association hereby agree to the following: 1, Effective Date of Amendment #1, This Amendment #1 shall be effective on the later to occur of (a) its execution by all parties hereto; (b) the recordation of the Termination Agreement in the Official Records of Maricopa County, Arizona Recorder; and (c) its recordation in the Official Records of Maricopa County, Arizona Recorder (the “Effective Date of the Amendment #1). 2. Amended Restrictions. As of the Eiivsiiro ate of the Amendment #1, the Original Restrictions are hereby modified as more particularly described in this Amendment #1 3. Condominium Terminated. Pursuant to the Termination Agreement, the Condominium was terminated on the Effective Date described therein except as required to effectuate the terms of the Termination Agreement. To the extent the Plat for Whispering Winds, as defined in the Original Restrictions, could be construed or deemed to be revoked or cancelled by the Termination Agreement and/or this Amendment #1, the parties hereto hereby ratify and reinstate the Plat as the plat of the Property until such time as a new plat or replat is filed and/or recorded. 4, Adoption of Amendment #1. As of the Effective Date of the Amendment #1 and immediately subsequent to the termination of the Condominium, each of the Uni Owners and the Association hereby submits its respective Property to this Amendment #1 and each hereby declares that its respective Property shall be held and conveyed subject to the terms, covenants, conditions and restrictions set forth in the Original Restrictions as modified by this Amendment #1. a, Each person who acquires any right, title or interest in the Property, or any part thereof, agrees to abide by all of the provisions of the Original Restrictions as modified by this Amendment #120060393350 b. The Original Restrictions as modified by this Amendment #1 shall be enforceable by the Association, as more particularly described herein. c. As of the Effective Date of this Amendment #1 and immediately subsequent to the termination of the Condominium, the Original Restrictions and this Amendment #1 shall apply to the (i) Common Elements as more particularly described in Exhibit “B, and (ji) each of the Units as more particularly described in Exhibit “C-1” attached hereto and incorporated herein (collectively, the “Units”). 5. Modifications to the Original Restrictions: a. Modifications Applicable Throughout the Original Restrictions: iii, iv. vi All references in the Original Restrictions to “Whispering Winds Casitas Unit | Condominiums” shall be deleted and substituted by “Whispering Winds Casitas Unit 1”. All references in the Original Restrictions to “Arizona Condominium Act, §33-1201 et seq.”, and any specific statutes within 33-1201 et seq., and to “Arizona Condominium Act” or “Condominium Act”, are hereby deleted and substituted by a reference to A.RnSio£S.73-1801 et seq., or, if a specific statute within A.R.S. §§ 33-1201 et seq. is cited, then to its corollary in ARS. §§ 33-1801, if any, and ARS. §§ 33-1801 shall be referred to as the “Arizona Planned Community Act”. If there is no corollary in ARS. §§ 33-1801, the Arizona Condominium Act reference shall be deleted. All references in the Original Restrictions to “A.R.S. §§ 33- 1248” are hereby deleted and substituted by “A.R.S. §§ 33- 1804”. Alll references in the Original Restrictions to “A.R.S. §§ 33- 1248” are hereby deleted and substituted by “ARS. §§ 33- 1804”. All references in the Original Restrictions to “A.R.S. §§ 33- 1243” are hereby deleted and substituted by “A.R.S. §§ 33- 1810”, All references in the Original Restrictions to “A.R.S. §§ 33- 1260 of the Condominium Act” are hereby deleted and substituted by “A.R.S. §§ 33-1806 et seq.”20060393350 vii. All references in the Original Restrictions to “A.R.S. §§ 33- 1256(J)” are hereby deleted and substituted by “A.R.S. §§ 33- 18070)”. All references in the Original Restrictions to “A.R.S. §33- 1245(A)(2)” are hereby deleted and substituted by “the Declaration”. ix. All references in the Original Restrictions to “Amendment and Restatement of Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions for Whispering Winds Casitas Unit 1 Condominiums, Recorded on June 24, 2005, as Instrument No. 20050870246 in the Official Records of the Maricopa County, Arizona Recorder”, “Declaration”, and similar references are hereby deleted and substituted by the phrase “Amendment #1”, which phrase is intended to mean the Original Restrictions as modified by this Amendment #1, and the word “Declaration” shall be the abbreviation for the Original Restrictions as modified by this Amendment #1. x. All references in the Original Restrictions to “Condominium Documents” are hereby deleted and substituted by “Association Documents”. b. The title of the Original Restrictions is hereby deleted and substituted by “Amendment and Restatement of Declaration of Covenants, Conditions and Restrictions Governing Whispering Winds Casitas Unit 1”. c. The reference in Section 1.37 to “Exhibit “A”” is hereby deleted and substituted by “Exhibit “C-1"", and all words after the word “Dwelling” shall be deleted. 4. The reference in Section 1.1(LL) in the Original Restrictions to “Unit” (which, by the terms of this Amendment #1 has been modified to “Building”) is hereby deleted and substituted by “Residential Dwelling”. €. Delete Section 2.3 of the Original Restrictions in its entirety, £, Delete the first sentence of Section 2.4 in its entirety. t. Anew Section 6.9 shall be added as follows: “6.9 Records. Except as provided otherwise in this Declaration, the Association Documents and all financial and other records of the Association shall be made reasonably available for examination by any Unit Owner or any Person designated by the Unit Owner in writing to the20060393350 Association as the Unit Owner's representative, Declarant, and Eligible Lienholders during normal business hours when requested in writing.” u, Anew Section 6.10 shall be added as follows: “Section 6.10 Audit. The Board of Directors shall provide for an annual financial audit, review or compilation of the Association, which shall be completed no later than one hundred eighty (180) days after the end of the Association’s fiscal year and shall be made available upon request to the Unit Owners wit thirty (30) days after its completion. Books and records kept by or on behalf of the Association and the Board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: Privileged communication between an attomey for the Association and the Association; b. Pending or contemplated litigation; ©. Meeting minutes or other records of a session of a Board meeting that is not required to be open to all Unit Owners; 4. Personal, health and financial records of an individual Unit Owner of the Association, an individual employee of the Association or an individual employee of a contractor for the Association; ¢. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the Association or an individual employee of a contractor of the Association who works under the direction of the Association; or f. When disclosure would violate any state or federal law.” ‘A new Section 4.4 shall be added to the Original Restrictions as follows: “Section 4.4 Pending Sale of Unit. A Unit Owner shall mail or deliver to a purchaser of the Unit within ten (10) days afier receipt of a written notice of a pending sale of the Unit all of the following: a. Accopy of the Bylaws and the Rules, if any, of the Association; b. A copy of the Declaration;c. 20060393350 ‘A dated statement containing: ii, iii The telephone number and address of a principal contact for the Association, the Managing Agent, an Association management company, an Officer of the Association or any other person designated by the Board of Directors; The amount of the Common Expense Assessment and any unpaid Common Expense Assessment, Special Assessment or other Assessment, fee or charge currently due and payable from the selling Unit Owner; Whether all or a portion of the Unit is covered by insurance maintained by the Association; ‘The total amount of money held by the Association as reserves; Whether the Unit Owner has any knowledge of any Improvements to the Unit that violate the Declaration; Case names and case numbers for pending litigation with respect to the Unit filed by the Association against the Unit Owner or filed by the Unit Owner against the ‘Association. The Unit Owner shall not be required to disclose information concerning such pending litigation which would violate any applicable rule of attorney- client privilege under Arizona law; A statement that provides "I hereby acknowledge that the Declaration, Bylaws and Rules of the Association constitute a contract between the Association and me (the purchaser). By signing this statement, I acknowledge that I have read and understand the Association's contract with me (the purchaser). I also understand that as a matter of Arizona law, if I fail to pay my Association Assessments, the Association may foreclose on my property." The statement shall also include a signature line for the purchaser and shall be retumed to the Association within fourteen (14) calendar day’v. w. 20060393350 4. A copy of the current operating budget of the Association; ¢. A copy of the most recent annual financial report of the Association. If the report is more than ten (10) pages, the Association may provide a summary of the report in lieu of the entire report. f. A copy of the most recent reserve study of the Association, if any. ‘he Association may charge the Unit Owner a reasonable fee to compensate the Association for the costs incurred in the preparation of the information furnished by the Association pursuant to this Section 4.4. The Association shall make available to any interested party the amount of any fee established from time to time by the Association, Nothing in this Section 4.4 relieves the selling Unit Owner from the obligation to disclose Improvements to the Unit that violate the Declaration, nor precludes the Association from taking action against the purchaser of a Unit for violations that are apparent at the time of purchase and that are not reflected in the Association's records. For purposes of this Section 4.4, unless the context otherwise requires, "Unit Owner" means the seller of the Unit title and excludes any Arizona licensed real estate salesperson or real estate broker who is acting as a salesperson or broker and also excludes a trustee of a deed of trust who is selling the Unit in a trustee's sale.” The following shall be added to Section 5.3(c) of the Original Restrictions: “The failure of any Unit Owner to receive actual notice of a meeting does not affect the validity of any action taken at that meeting. Unless otherwise provided in the Association Documents, for meetings of the Board of Directors that are held after the termination of Declarant Control of the Association, notice to Unit Owners of meetings of the Board of Directors shall be given at least forty-eight (48) hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the Board of Directors. An affidavit of notice by an officer of the Association is prima facie evidence that notice was given as prescribed by this Section 5.3. Notice to Unit Owners of meetings of the Board of Directors is not required if emergency circumstances require action by the Board before notice can be given.” A new Section 5.3(d) to the Original Restrictions shall be added as follows:20060393350 5.3(d) Proxies. Notwithstanding any provision in the Association Documents, afier termination of the Period of Declarant Control, votes allocated to a Unit may not be cast pursuant to a proxy. The Association shall provide for votes to be cast in person and by absentee ballot and may provide for voting by some other form of delivery. Notwithstanding ARS. § 10-3708 or the provisions of the Association Documents, any action taken at an annual, regular or special meeting of the Unit Owners shall comply with all of the following if absentee ballots are use: (A) The absentee ballot shall set forth each proposed action; (B) The absentee ballot shall provide an opportunity to vote for or against each proposed actior (©) The absentee ballot is valid for only one specified election or meeting of the Unit Owners and expires automatically after the completion of the election or meeti (D) The absentee ballot specifies the time and date by which the ballot must be delivered to the Board of Directors in order to be counted, which shall be at leasiwasisese’7) days after the date that the Board delivers the unvoted absentee ballot to the Unit Owner; (E) The absentee ballot does not authorize another person to east votes on behalf of the Unit Owner. Votes cast by absentee ballot or other form of delivery are valid for the purpose of establishing a quorum. For the purposes of this Section 5.3(4), "Period of Declarant Control" means the time during which the Declarant or Persons designated by the Declarant may elect or appoint the members of the Board of Directors pursuant to the Association Documents or by virtue of superior voting power.” x. Add after the words “proxy” or “proxies” wherever appearing in the Original Restrictions the following: “if during the Period of Declarant Control” y. Anew Section 5.7 to the Original Restrictions shall be added as follows: “5.7 Open Meetings. All meetings of the Association and the Board of Directors are open to all Members of the Association or any Person designated by a Member in writing to the Association as the Member's20060393350 representative. All Members or designated representatives thereof so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings, provided, however, that the Board may place reasonable time restrictions on those Persons speaking during the meeting but shall permit a Member or Member's designated representative to speak before the Board takes formal action on an item under discussion in addition to any other opportunities to speak. The Board shall provide for a reasonable number of Persons to speak on each side of an issue. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following: (A) Legal advice from an attorney for the Board or the Association, On final resolution of any matter for which the Board received legal advice or that, concerned pending or contemplated litigation, the Board may disclose information about that matter in an open meeting except for matters that, are required to remain confidential by the terms of a settlement agreement or judgment. (B) Pending or contemplated litigation. (©) Personal, health and financial information about an individual member of the Association, an individual employee of the Association or an individual employee of a cess ¥ee, for the Association. (D)Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the Association or an individual employee of a contractor of the Association who works under the direction of the Association.” A new Section 7.10 to the Original Restrictions shall be added as follows: “Section 7.10 Right to Lien. Notwithstanding anything contained in the Original Restrictions to the contrary, the Association has a lien on a Unit for any Assessment levied against that Unit from the time the Assessment becomes due. Charges for the late payment of Assessments are limited to the greater of fifteen dollars ($15.00) or ten percent (10%) of the amount of the unpaid Assessment. ‘The Association's lien for Assessments, for charges for late payment of those Assessments, for reasonable collection fees and for reasonable attomeys’ fees and costs incurred with respect to those Assessments may be foreclosed in the same manner as a mortgage on real estate. Fees, charges, late charges, monetary penalties and interest charged pursuant to A.R.S §33-1803, other than charges for late payment of Assessments, are not enforceable as Assessments under this Section 7.10. If an Assessment is payable in installments, the full amount of the Assessment is 1020060393350 a lien from the time the first installment of the Assessment becomes due. The Association has a lien for fees, charges, late charges, other than charges for late payment of Assessments, monetary penalties or interest charged pursuant to ARS. § 33-1803 after the entry of a judgment in a civil suit for those fees, charges, late charges, monetary penalties or interest from a court of competent jurisdiction and the Recording of that judgment in the Official Records. The Association's lien for monies other than for Assessments, for charges for late payment of those Assessments, for reasonable collection fees and for reasonable attomeys’ fees and costs incurred with respect to those Assessments may not be foreclosed and is effective only on conveyance of any interest in the Unit aa, Section 7.6 of the Original Restrictions shall be deleted in its entirety and substituted by the following: “A lien for Assessments, for charges for late payment of hose Assessments, for reasonable collection fees and for reasonable attorneys” fees and costs incurred with respect to those Assessments under this Section 7 is prior to all other liens, interests and encumbrances on a Unit except: i. Liens and encumbrances recorded before the recordation of the Declaration; sso ii, A recorded first mortgage on the Unit, a seller's interest in a first contract for sale on the Unit recorded prior to the Association's lien or a recorded first deed of trust on the Unit; and iii, Liens for real estate taxes and other governmental Assessments or charges against the Unit. Recording of the Declaration constitutes record notice and perfection of the lien for Assessments, for charges for late payment of Assessments, for reasonable collection fees and for reasonable attorneys" fees and costs incurred with respect to those Assessments. A lien for an unpaid Assessment is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the Assessment becomes due. On written request, the Association shall furnish to a lienholder, escrow agent, Unit Owner or Person designated by a Unit Owner a statement setting forth the amount of any unpaid Assessment against the Unit. The Association shall furnish the statement within fifteen (15) days u20060393350 after receipt of the request, and the statement is binding on the Association, the Board of Directors and every Unit Owner if the statement is requested by an escrow agency licensed by Arizona law. Failure to provide the statement to the escrow agent within the time provided for in this Section 7 shall extinguish any lien for any unpaid Assessment then due. The Association shall Record in the office of Maricopa County Recorder a notice stating the name of the Association or designated agent or Managing Agent for the Association, the address for the Association and the telephone number of the Association or its designated agent or management company. The notice shall include the name of the Association, the date of the recording and the recorded instrument number or book and page for the main document that constitutes the Declaration If an Association's address, designated agent or management company changes, the Association shall amend its notice or record a new notice within ninety (90) days after the change. ‘Notwithstanding any provision in the Association Documents or in any contract between the Association and the Managing Agent, a charge for a late payment of a penalty shall not exceed the greater of fifteen dollars ($15.00) or ten pernsish2"4) of the amount of the unpaid penalty and, unless the Member directs otherwise, all payments received on a Member's account shall be applied first to any unpaid Assessments, for unpaid charges for late payment of those Assessments, for reasonable collection fees and for unpaid attorneys” fees and costs incurred with respect to those Assessments, in that order, with any remaining amounts applied next to other unpaid fees, charges and monetary penalties or interest and late charges on any of those amounts.” bb. The title of “ARTICLE X COMMUNITY DEVELOPMENT, EXPANSION AND REDUCTION OF THE COMMUNITY AND COMMON AREAS” shall be deleted in its entirety and substituted by “ARTICLE XVIII COMMUNITY DEVELOPMENT, EXPANSION AND REDUCTION OF THE COMMUNITY AND COMMON AREAS”. cc. The title of “ARTICLE XI RIGHTS RESERVED TO DECLARANT” shall be deleted in its entirety and substituted by “ARTICLE IX RIGHTS RESERVED TO DECLARANT”, dd. The tithe of “ARTICLE XII PROPERTY RIGHTS WITHIN THE COMMUNITY AND EASEMENTS” shall be deleted in its entirety and substituted by “ARTICLE X PROPERTY RIGHTS WITHIN THE COMMUNITY AND EASEMENTS”. 1220060393350 ee. The title of “ARTICLE XIII AMENDMENT OF DECLARATION” shall be deleted in its entirety and substituted by “ARTICLE XI AMENDMENT OF DECLARATION”. REMAINDER OF PAGE INTENTIONALLY LEFT __ BLANK. 13,20060393350 IN WITNESS WHEREOF, the parties whose signatures appear below hereby enter into this Amendment #1. “Declarant” GLH I WHISPERING WINDS, LLC, an Arizona limited liability company By: Fidelity Management Alliance I, a Nevada corporation, Manager By: John R. Osborne, President “Association” WHISPERING WINDS CASITAS UNIT | OWNERS ASSOCIATION, an Arizona non- profit corporation By: GLH I WHISPERING WINDS, LLC, an Arizona limited liability company, Director By: Fidelity Management Alliance I, Nevada corporation, Manager John R. Osborne, President snsvosewn 1420060393350 STATE OF NEVADA ) a County of Clark ) On February __, 2006, before me, the undersigned Notary Public, personally appeared John R. Osborne, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed this instrument WITNESS my hand and official seal. My Commission Expires: Notary Public 1520060393350 EXHIBIT “A” DECLARANT’S PROPERTY 1620060393350 EXHIBIT “B” THE COMMON ELEMENTS 720060393350 EXHIBIT “C” THE PROPERTY 1820060393350 EXHIBIT “C-1” THE UNITS 1920060393350 EXHIBIT “D” ORIGINAL RESTRICTIONS 20