Ex 4(a)(10) Judgment and Dismissal Order





EXHIBIT 4(a)

 

10W. Jeffrey Fulton [#089527]

Law Offices of W. Jeffery Fulton

1545 Hotel Circle South, Suite 140

San Diego, California 9108

(619) 688-0018



Attorney for Plaintiff Lyon Financial Services, Inc.

A Minnesota corporation

 

 

SUPERIOR COURT OF CALIFORNIA



COUNTY OF SAN DIEGO, CENTER DISTRICT



LYON FINANCIAL SERVICES, INC.,
a                                            )            
Case Number: GIC 795728

Minnesota corporation formerly known
as                                           )

STELLER FINANCIAL COMPANY now                                           )

dba U.S. BANCORP
PORTFOLIO                                                      )            
STIPULATION FOR ENTRY OF

SERVICES,                                                                                           
)            
JUDGMENT AND DISMISSAL,

                                                                                                                
)             ORDER
THEREON

                                           
Plaintiff,                                                      
)

                                                                                                                
)

vs.                                                                                                           
)

                                                                                                                
)

THUNDERBIRD GREELY INC., a                                                    
)

Colorado corporation; INTERNATIONAL                                         
)

THUNDERBIRD CORPORATION, a                                                
)

Canadian corporation; and DOES 1 through                                        
)

25, inclusive,                                                                                           
)

                                                                                                                 
)

                                           
Defendants.                                                 
)

                                                                                                                  
)





            It is hereby
stipulated by and between Plaintiff Lyon Financial Services, Inc. a Minnesota
corporation, by and through its Collection Manager Lori Scheeval and Defendants
Thunderbird Greely, Inc., a Colorado corporation, by and through its Chief
Operating Officer Albert Atallah and International Thunderbird Corporation, a
Canadian corporation, also by and through its Chief Operating Officer Albert
Atallah, that Plaintiff have and recover against said Defendants, jointly and
severally, the sum of $730,000.00, interest at 13% per annum from and after
October 1, 2002, attorney fees pursuant to the court's default schedule on the
outstanding principal balance, and Court costs of $249.00.

            The
parties herein acknowledge that Plaintiff will file this Stipulation by judgment
will not be entered forthwith. A Dismissal without prejudice will be filed,
reserving the court's power to set aside the dismissal and order entry of
judgment upon a showing of default in payments by the defendant. The court also
reserves jurisdiction to enter a dismissal with prejudice following the entry of
dismissal without prejudice upon request.

            Pursuant
to this Stipulation, Plaintiff will not take any action to enter or enforce the
judgment Stipulated to herein provided Defendants shall pay $730,000.00 as
follows: $10,000.00 upon execution of this Stipulation [not later than October
4, 2002] and $10,000.00 per month commencing November 1, 202 and continuing on
the 1st day of each month thereafter for an additional 71 months.

            All
payments as set forth above must be by check made payable to U.S. Bancorp
Portfolio Services and must be received at 1310 Madrid St., Marshall, Minnesota
56258 on the dates set forth above. If any date falls on a legal holiday or on
Saturday or Sunday, the following business day will be the date payment is due.

            If payment
is not made as set forth above on or before its due date, Plaintiff may send
written notice of default by facsimile to Defendants' attorney's office. Said
notice is deemed made at the time the facsimile is sent. Twenty days after
notice of default Plaintiff may seek entry of judgment as stipulated to herein
without further notice to Defendants or their attorney. Any payments received
pursuant to the stipulation will be credited first to accrued interest and
second to principal on the date received. If any payment is not received at the
above address within five calendar days of its due date, the late payment shall
be subject to daily interest of $3.61 from its due date until the date actually
received at the above address.

            Upon
completion of the payments set forth above, Plaintiff will apply to the court to
have dismissal with prejudice entered and provide Defendants' attorney with a
conformed copy thereof.

            This
stipulation represents settlement of the above entitled matter. Only the terms
and conditions herein survive execution by the parties and dismissal without
prejudice save and except for the terms and conditions of the parties' Security
Agreement and Assignment of Lease, each dated May 14, 1997. It is intended that
this exception preserve any and all rights of Plaintiff to certain gaming
machines and certain equipment lease between Defendant International Thunderbird
Corporation and Twenty-nine Palms Band of Mission Indians dba Spotlight 29
Enterprises dated November 3, 1995 as collateral for enforcement of the payments
terms set forth herein.

            It is
further stipulated that Defendants shall not contest any entry of judgment
pursuant to this stipulation, except for fraud or error in calculation of the
amount of costs, fees, and amounts due. Defendant waives any rights they may
have to contest or delay entry of judgment, including but not limited to any of
the following:

            a.)    
trial and/or appeal;

            b.)    
motion of reconsideration and/or stay of judgment and/or stay of execution;

            c.)    
dismissal for delay in prosecution pursuant to California Code of civil
Procedure Section 583 et seq; and

            d.)    
the time for any trial or pretrial proceedings to be had as extended to the full
extent permitted by law and to facilitate the settlement.

            It is
further stipulated that all parties at all times material hereto have had the
opportunity to consult with legal counsel of their own choosing concerning their
rights with respect to the form and content of this stipulation and the
advisability of executing the same.

            It is
further stipulated that no changes or additions to, or modifications of this
stipulation shall be valid unless set forth in writing and executed by all
parties hereto.

            It is
further stipulated that all parties agree that any commissioner of the Court
wherein the action is filed may hear any proceeding arising out of the
stipulation, including entry of judgment pursuant to the stipulation.

            It is
further stipulated that this stipulation may be signed in counterpart which
counterparts shall constitute one agreement between the parties.

            It is
further stipulated that this stipulation shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, heirs,
and personal representatives.

            It is
further stipulated that in the event that any of the provisions of this
stipulation (or portions thereof) is held by a Court of competent jurisdiction
to be invalid for any reason, the validity and enforceability of the remaining
of any such provisions or portions thereof and the remaining provisions of this
stipulation shall not be effected.

            It is
further stipulated that each individual signing this stipulation and any other
documents executed in connection with this stipulation, whether signed
individually or on behalf of a person or entity, warrants and represents that he
or she has full authority to so execute the stipulation on behalf of the parties
on whose behalf he or she so signs. Each separately acknowledges and represents
at this representation and warranty is an essential and material provision of
this stipulation and shall survive execution hereof. The parties hereto each
respectively represent that any attorney signing this stipulation and that
documents executed with this stipulation on their behalf respectively, have been
duly authorized and empowered to do so.

            It is
further stipulated that copies of the stipulation may be used in lieu of the
original for all purposes.

 



Date: October 28, 2002                                                                    
___/s/_Lori Scheeval________________

                                                                                                           
Lyon Financial Services, Inc. dba U.S.

                                                                                                           
Bancorp Portfolio Services, by Lori

                                                                                                           
Scheeval, its Collection Manager

 

Date: October 28, 2002                                                                    
___/s/_Albert Atallah________________

                                                                                                           
Thunderbird Greely Inc., by Albert

                                                                                                           
Atallah, its Chief Operating Officer





Date: October 28, 2002                                                                    
__/s/__Albert Atallah________________

                                                                                                           
International Thunderbird Corporation,

                                                                                                           
by Albert Atallah, its Chief Operating Officer