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RECEIPT, RELEASE AND SETTLEMENT AGREEMENT
This RECEIPT, RELEASE AND SETTLEMENT AGREEMENT (the "Agreement") is
made and entered into to be effective as of this 13th day of August, 1999, by
and among COMMERCIAL ASSETS, INC., Maryland corporation ("CAX") and CASA ENCANTA
COMMERCIAL, L.L.C., an Arizona limited liability company, FIESTA/ENCANTA,
L.L.C., an Arizona limited liability company, FIESTA MHP INVESTORS, L.L.C., an
Arizona limited liability company, FIESTA SPE, L.L.C., an Arizona limited
liability company, SOUTHERN PALMS MHP, L.L.C., an Arizona limited liability
company, XXXXXX XXXXXX an individual, THE XXXXXX XXXXXX IRREVOCABLE TRUST
(created under agreement dated 7/20/97, and herein referred to as "Xxxxxx")
(collectively, "Borrower").
RECITALS
WHEREAS, CAX is the holder in due course of certain promissory notes
and the beneficiary of certain security instruments all of which relate to loans
made to and guaranteed by Borrower, which were made for the purpose of acquiring
and improving the mobile home and related property generally located on the real
property described on Exhibit "A", attached hereto (such notes, security
instruments, and other agreements, certifications and documents herein, the
"Loan Documents");
AND WHEREAS, Borrower has failed to perform and observe its covenants
under the Loan Documents, including without limitation, the agreement to pay
certain installments of interest and principal and to complete certain
improvements as required by the Loan Documents;
AND WHEREAS, the parties entered into that Letter Agreement dated July
1, 1999 (the "Forbearance Agreement"), pursuant to which CAX and Borrower agreed
that notwithstanding the present and existing and continuing defaults by
Borrower under the various Loan Documents, Borrower would be given an
opportunity to satisfy in full the obligations due CAX under the Loan Documents,
including the participating interest provided to CAX as set forth therein;
AND WHEREAS Borrower has failed to make the Xxxxxxx Money Deposit as
required in the Forbearance Agreement;
AND WHEREAS pursuant to its rights under the Forbearance Agreement, CAX
has duly elected to exercise its "Call" right (as defined therein) for the sum
of $1.00 in cash, in exchange for the release by Borrower from all liabilities
set forth in the applicable Loan Documents;
THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. The parties incorporate into this Agreement the foregoing recitals and
hereby confirm the accuracy thereof;
2. On or about the execution of this Agreement, CAX shall tender, and by
execution hereof, Borrower acknowledges receipt of, the sum of $1.00 in cash.
3. Borrower agrees that all rights, titles and interests it or any
affiliates, assignees or assigns holds in the property described on Exhibit A
hereto, or in the limited liability companies listed and identified as
"Borrower" in the first paragraph of this Agreement, shall be relinquished and
transferred in favor of CAX. Borrower expressly acknowledges and agrees the
Assignment and Assumption of Membership Interests previously executed and
delivered by Xxxxxx on or about July 14, 1999 and delivered to CAX, for the
property described on Exhibit "A" hereto, remains valid as a conveyance and the
representations, warranties and certifications set forth therein, remain true
and correct.
4. CAX hereby releases Borrower from any further liability set forth in the
Loan Documents which evidence, govern or secure the loan made by CAX which
covers the property attached hereto as Exhibit "A". CAX shall execute such
further acknowledgements of said release as may be reasonably requested by
Borrower from time to time. In addition, CAX shall release the encumbrances of
record which encumber property which is adjacent to, but not a part of the
property described on Exhibit "A" hereto, otherwise known by the parties as the
"Commercial Parcels", and not utilized in the operation of the mobile home park
known as SOUTHERN PALMS, FIESTA MHP or CASA ENCANTA MHP or any ancillary
facilities (including entranceways) utilized or to be utilized in the operation
thereof.
5. In consideration of the foregoing, Borrower does hereby jointly and
severally release, acquit and forever irrevocably discharge CAX and its
affiliates, successors, assigns, officers, representatives and agents
(including, without limitation, Community Acquisition and Development
Corporation) of and from any and all claims, actions, causes of action, damages,
costs, losses, expenses, and attorney's fees, in law or in equity, which are or
could be asserted in regard to the loan transaction contemplated by the Loan
Documents, or any matter relating thereto.
6. In consideration of the foregoing, CAX does hereby jointly and severally
release, acquit and forever irrevocably discharge Borrower and its affiliates,
successors, assigns, officers, representatives and agents of and from any and
all claims, actions, causes of action, damages, costs, losses, expenses, and
attorney's fees, in law or in equity, which are or could be asserted in regard
to the loan transaction contemplated by the Loan Documents, or any matter
related thereto.
7. Each party agrees to cooperate fully, to execute any and all necessary
supplementary documents and to undertake any reasonable additional actions which
may be necessary, desirable or appropriate to effectuate the terms, conditions
and intent of this Agreement, which are not inconsistent with the terms hereof.
8. Each party acknowledges that they have read and understood the terms of
this Agreement, and that each such party intends to be legally bound hereby.
This Agreement may be executed in counterpart, each of which will be effective
upon the signature of a corresponding counterpart by all parties.
9. In any action hereafter to enforce, based upon, arising out of this
Agreement, the prevailing party shall be entitled to its costs and expenses,
including reasonable attorney's fees, as allowed by law.
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10. This Agreement shall be construed according to the laws of the State of
Arizona.
11. Each party by signing below represents and warrants that it has
sufficient capacity to sign on behalf of and bind the entity for which its
signature stands.
Dated to be effective as of the date first written above.
The Xxxxxx Xxxxxx Irrevocable Trust,
u/a/d July 20, 1997
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Sole Trustee
And
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, a single man
FIESTA SPE, L.L.C., an Arizona limited
liability company
By: Fiesta Manager SPE, L.L.C.,
an Arizona limited liability
company, Managing Member
By: Community Acquisition
and Development
Corporation, a Delaware
corporation, Managing
Member
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx,
President
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
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SOUTHERN PALMS MHP, L.L.C., an Arizona
limited liability company
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Its Manager
By: Community Acquisition and
Development Corporation,
a Delaware corporation,
as its Manager
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
CASA ENCANTA COMMERCIAL, L.L.C., an
Arizona limited liability company
By: Community Acquisition and
Development Corporation, its
Manager
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Manager
Fiesta/Encanta MHP, L.L.C., an Arizona
limited liability company
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Manager
Fiesta MHP Investors, L.L.C., an
Arizona limited liability company
By: Community Acquisition and
Development Corporation
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
767773/10169-0001
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