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Home My WebLink About00094C - DESERT FASHION PLAZA SOUTH PLAZA SECURITY PACIFIC 2ND INSTALLMENT SALE AGR 2701F JHHW:CFA:dfd 7/31/84 8/10/84 8/21/84 9/15/84 9/20/84 9/21/84 Desert Fash Plaza, Security Pacific & CRA Trust Agr re purch/sale of land & prkg facil AGREEMENT #94, 9-1-84 Res #238, 8-15-84 TRUST AGREEMENT Dated as of September 1, 1984 by and among DESERT FASHION PLAZA, INC. , SECURITY PACIFIC NATIONAL BANK, as trustee and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS TABLE OF CONTENTS qv Pat? ARTICLE I DEFINITIONS Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.02 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARTICLE II THE CERTIFICATES OF PARTICIPATION Section 2.01 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section2.02 Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 2.03 Maturity; Interest Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 2.04 Form of Certificates; Interest. . . . . . . . . . . . . . . . . . . . . . . 8 Section2.05 Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.06 Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.07 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.08 Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.09 Certificates Mutilated, Lost, Destroyed or Stolen. . . . 10 Section 2.10 Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 2. 11 Execution of Documents and Proof of Ownership. . . . . . . . 10 Section 2. 12 Certificate Register. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 2. 13 Temporary Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE III CONSTRUCTION FUND Section 3.01 Construction Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 3.02 Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 3.03 Transfers of Unexpended Proceeds. . . . . . . . . . . . . . . . . . . . . 14 ARTICLE IV REDEMPTION OF CERTIFICATES Section 4.01 Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 4.02 Selection of Certificates for Redemption. . . . . . . . . . . . . 15 Section 4.03 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 4.04 Partial Redemption of Certificate. . . . . . . . . . . . . . . . . . . . 16 Section 4.05 Effect of Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . 16 (i) Page iARTICLE V INSTALLMENT PAYMENTS; INSTALLMENT PAYMENT FUND Section 5.01 Assignment of Rights in Installment Sale Agreement. . . 18 Section 5.02 Establishemnt of Installment Payment Fund. . . . . . . . . . . . 18 Section 5.03 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 5.04 Application of Moneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 5.05 Transfers of Investment Earnings to Construction Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 5.06 Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE VI RESERVE FUND Section 6.01 Establishment of Reserve Fund. . . . . . . . . . . . . . . . . . . . . . . . 20 Section 6.02 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 6.03 Transfers of Excess. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 6.04 Application in Event of Deficiency in Installment Payment Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 6.05 Transfer To Make All Installment Payments. . . . . . . . . . . . 20 ARTICLE VII INSURANCE AND CONDEMNATION FUND; INSURANCE; EMINENT DOMAIN Section 7.01 Establishment of Insurance and Condemnation Fund; Deposit of Net Proceeds. . . . . . . . . . . . . . . . . . . . . . 22 Section 7.02 Application of Net Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 7.03 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE VIII MONEYS IN FUNDS; INVESTMENT Section 8.01 Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 8.02 Investments Authorized. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 8.03 Accounting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 8.04 Allocation of Earnings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 8.05 Valuation and Disposition of Investments. . . . . . . . . . . . . 24 Section 8.06 Deposit and Investment of Moneys in Funds. . . . . . . . . . . . 25 Section 8.07 Arbitrage Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 (ii) • Page ARTICLE IX THE TRUSTEE Section 9.01 Acceptance of Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 9.02 Fees, Charges and Expenses of Trustee. . . . . . . . . . . . . . . . 28 Section 9.03 Notice of Certificate Owners if Event of Default Occurs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 9.04 Intervention by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 9.05 Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 9.06 Resignation by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 9.07 Removal of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 9.08 Appointment of Successor Trustee by Certificate Owners; Temporary Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 9.09 Concerning Any Successor Trustee. . . . . . . . . . . . . . . . . . . . . 29 Section 9.10 Appointment of Co—Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ARTICLE X MODIFICATION OR AMENDMENT OF AGREEMENTS Section 10.01 Amendments Permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 10.02 Procedure for Amendment with Written Consent of Certificate Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 10.03 Disqualified Certificates. . . . . . . . . . . . . . . . 32 Section 10.04 Effect of Supplemental Agreement. . . . . . . . . . . . . . . . . . . . . 32 Section 10.05 Endorsement or Replacement of Certificates Delivered After Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 33 ARTICLE XI COVENANTS; NOTICES Section 11.01 Compliance With and Enforcement of Installment Sale Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 11.02 Observance of Laws and Regulations. . . . . . . . . . . . . . . . . . . 34 Section 11.03 Recordation and Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 11.04 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ARTICLE XII LIMITATION OF LIABILITY Section 12.01 Limited Liability of Agency. . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 12.02 No Liability of the Seller for Trustee Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 12.03 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 12.04 Limitation of Rights to Parties and Certificate Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 i (iii) Page • ARTICLE XIII EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE OWNERS Section 13.01 Assignment of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 13.02 Events of Default Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 13.03 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 13.04 Application of Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 13.05 Institution of Legal Proceedings. . . . . . . . . . . . . . . . . . . . . 38 Section 13.06 Non-waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 13.07 Remedies Not Exclusive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 13.08 Power of Trustee to Control Proceedings. . . . . . . . . . . . . . 39 Section 13.09 Limitation on Certificate Owners' Right to Sue. . . . . . . 39 Section 13. 10 Drawing on Guaranty Agreement and Surety Bond. . . . . . . . 40 Section 13. 11 Application of Funds in Event of Bankruptcy Following Payment of Certificates. . . . . . . . . . . . . . . . . . 40 Section 13. 12 Insurance Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 13.13 Assignment to Surety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 13.14 Notification to S&P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 13. 15 Liability Limited to Revenues. . . . . . . . . . . . . . . . . . . . . . . . 42 Section 13. 16 Notice to Developer of Failure to Make Payment. . . . . . . 42 ARTICLE XIV MISCELLANEOUS Section 14.01 Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 14.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 14.03 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 14.04 Binding Effect; Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 14.05 Payment on Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 14.06 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 14.07 Destruction of Cancelled Certificates. . . . . . . . . . . . . . . . 45 Section 14.08 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Section 14.09 Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Section 14. 10 Separability of Invalid Provisions. . . . . . . . . . . . . . . . . . . 45 Exhibit A - Certificate of Participation (iv) TRUST AGREEMENT THIS AGREEMENT, made and entered into as of this 1st day of September, 1984, by and among Security Pacific National Bank, a national bank organized and existing under the laws of the United States of America (the "Trustee") , DESERT FASHION PLAZA, INC. , a corporation duly organized and in good standing under the laws of the State of Ohio (the "Seller") , and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, duly organized and existing under the laws of the State of California (the "Agency") ; W I T N E S S E T H WHEREAS, the Agency and the Seller have entered into a First Installment Sale Agreement dated as of the date hereof (the "First Installment Sale Agreement") , whereby the Seller has agreed to build certain public parking facilities and related and appurtenant facilities and property described more fully in Exhibit B to the First Installment Sale Agreement (the "Project") on certain land situated in Palm Springs Central Business District Redevelopment Project Area of the Agency (the "Site") and to sell the Project to the Agency and the Agency has agreed to purchase the Project from the Seller; WHEREAS, the Agency and each of North Plaza Associates, South Plaza Associates and Pratt/North Plaza Associates, each of which is a general partnership organized and existing under the laws of the State of California (collectively, the "Developers") have entered into a Second Installment Sale Agreement dated as of the date hereof (collectively, the "Second Installment Sale Agreements") whereby the Agency has agreed to sell to the Developers and the Developers have agreed to purchase from the Agency their respective portions of the Project; and WHEREAS, under the First Installment Sale Agreement, the Agency is obligated to make Installment Payments to the Seller as the purchase price of the Project; and WHEREAS, for the purpose of obtaining the moneys required to finance the construction, improvement and equipping of the Project on the Site, the Seller proposes to assign and transfer certain of its rights under the First Installment Sale Agreement to the Trustee, in consideration of which will be executed and delivered Certificates evidencing the Installment Payments; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree as follows: ARTICLE I • DEFINITIONS Section 1.01 . Definitions. Unless the context otherwise requires, the terms defined in this Section shall , for all purposes of this Trust Agreement, have the meanings herein specified. "Agency" means the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic, duly organized and existing under the Law. "Agency Representative" means the Executive Director of the Agency or any other person authorized by the Agency or the Executive Director of the Agency to act on behalf of the Agency under or with respect to this Agreement pursuant to written instrument filed with the Seller, the Trustee, the Surety and the Developers. "Business Day" means a day of the year on which banks in New York, New York, or in the State of California are not required or authorized to remain closed or on which the New York Stock Exchange is not closed. "Certificates" means the $23,250,000 principal amount of Community Redevelopment Agency of the City of Palm Springs Certificates of Participation (Desert Fashion Plaza Public Parking Project) executed and delivered pursuant hereto. . "Closing Date" means the date of execution and delivery of this Agreement by the parties hereto, which date shall also be the date of delivery of the Certificates to the Original Purchaser. "Code" means the Internal Revenue Code of 1954, as amended. Any citation to a provision of the Code shall be deemed to include the applicable regulations of the United States Department of the Treasury promulgated with respect to such provision. "Completion Date" means the date on which there shall have been filed with the Trustee and the Agency a certificate meeting the requirements of Section 3.3 of the First Installment Sale Agreement. "Construction Costs" means the costs and expenses incurred by the Seller to construct, improve and equip the Project, including but not limited to: (i) all costs which the Seller shall be required to pay under the terms of any contract or contracts for the construction, improving or equipping of the Project; (ii) obligations of the Seller incurred for labor and materials (including obligations payable to the Developers, their respective affiliates or the Guarantor) in connection with the construction, improvement or equipping of the Project, including reimbursement to the Seller or the Developers, their respective i 2 affiliates or the Guarantor for all advances and payments made in connection with the Project (including interest on such advances and payments) prior to or after the Closing Date; (iii ) the cost of performance and other bonds and any and all types of insurance that may be necessary or appropriate to have in effect during the course of construction , improvement and equipping of the Project; (iv) all costs of engineering and architectural services, including the costs of the Seller, for test borings, surveys, estimates, plans and specifications and preliminary investigations therefor, development fees, sales commissions, legal fees, accounting fees, and fees for supervising construction, as well as for the performance of all other duties required by or consequent to the proper construction, improvement and equipping of the Project; (v) any sums required to reimburse the Seller for advances made by the Seller for any of the above items or for any other costs incurred and for work done by the Seller which are properly chargeable to the Project; and (vi ) the interest components of any Installment Payments coming due or accruing during the period of construction, improvement and equipping of the Project. "Construction Fund" means the fund by that name established and held by the Trustee hereunder. "Deeds of Trust" means, collectively, each Deed of Trust, Assignment of Rents and Security Agreement executed by a Developer pursuant to Section 4.6 of the Second Installment Sale Agreement to which such Developer is a party, securing (among other things) the obligations of such Developer under such Second Installment Sale Agreement, and naming the Trustee as beneficiary, together with any amendments and supplements thereto. "Delivery Costs" means all items of expense directly or indirectly relating to the financing of the Project from the proceeds of the Certificates, including but not limited to filing and recording costs, settlement costs, legal fees and charges, Surety Bond premiums, initial Trustee fees, underwriter' s discount, title insurance premium, recording fees, financial and other professional consultant fees. "Developers" means, collectively, South Plaza Associates, North Plaza Associates and Pratt/North Plaza Associates, each of which is a California general partnership, and their respective successors and assigns. "Developer Representative" means, with respect to any Developer, a representative of such Developer authorized to act as such pursuant to written instrument executed by a duly authorized officer of such Developer and filed with the Seller, the Agency, the Surety, the Guarantor and the Trustee. "Event of Default" means an event of default under and as defined in the First Installment Sale Agreement. i 3 "Federal Securities" means any of the following which at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein : (a) direct general obligations of (including obligations insured or held in book entry of the Department of the Treasury of the United States of America) , or obligations the payment of principal of and interest on which are unconditionally guaranteed by, the United States of America; or (b) bonds, debentures, notes or other evidence of indebtedness payable in cash issued by one or a combination of any of the following: federal agencies whose obligations represent the full faith and credit of the United States of America, Export Import Bank of the United States, Federal Financing Bank, Farmer' s Home Administration, Public Housing Authority, and Government National Mortgage Association. "First Assignment Agreement" means the First Assignment Agreement, dated the date hereof, between the Seller as assignor and the Trustee as assignee, and any duly authorized and executed amendment thereto. "First Installment Sale Agreement" means the First Installment Sale Agreement, dated the date hereof, by and between the Seller as seller and the Agency as purchaser of the Project, and any duly authorized and executed amendment thereto. "Guarantor" means The Edward J. DeBartolo Corporation, a corporation organized and existing under the laws of the State of Ohio, and its successors and assigns. "Guaranty Agreement" means the Guaranty Agreement, dated the date hereof, between the Trustee and the Guarantor, and any duly authorized and executed amendment thereto. "Independent Counsel" means an attorney duly admitted to the practice of law before the highest court of the state in which such attorney maintains an office, who is not an employee of the Trustee, any of the Developers, the Seller, the Surety, the Guarantor or the Agency; provided, however, that the selection of Independent Counsel , where permitted herein, shall be subject to the reasonable approval of each of the Developers. "Installment Payment Fund" means the fund by that name established and held by the Trustee hereunder. "Installment Payments" means each semiannual payment required to be paid by the Agency pursuant to Section 4.3(a) of the First Installment Sale Agreement, as set forth in Exhibit A to the First Installment Sale Agreement. "Insurance Policy" means the policy of insurance, Policy No. YU 876-8023, issued by the Insurer insuring payment of principal and interest with respect to the Certificates. All references herein to the Insurance Policy and the Insurer shall be of no force and effect following the expiration of the Insurance Policy in accordance with its terms. i 4 "Insurance and Condemnation Fund" means the fund by that name established and held by the Trustee pursuant to Article VII hereof. "Insurer" means Industrial Indemnity Company, a corporation organized under the laws of the State of California. "Interest Payment Date" means each of the dates specified in Section 2.04 on which interest is due and payable with respect to the Certificates. "Law" means the Community Redevelopment Law of the State, constituting Part 1 of Division 24 of the California Health and Safety Code, as amended. "Net Proceeds" means any insurance proceeds or condemnation award in excess of $50,000, paid with respect to the Project or the Site, remaining after payment therefrom of all expenses incurred in the collection thereof. "Original Purchaser" means Birr, Wilson & Co. , Inc. , as original purchaser of the Certificates. "Outstanding" , when used as of any particular time with respect to Certificates, means (subject to the provisions of Section 10.03) all Certificates theretofore executed and delivered by the Trustee under this Agreement except - (1) Certificates theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation; (2) Certificates for the payment or redemption of which funds or • Federal Securities in the necessary amount shall have theretofore been deposited with the Trustee (whether upon or prior to the maturity or redemption date of such Certificates) , provided that, if such Certificates are to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Section 4.03 or irrevocable instructions shall have been given to the Trustee for the giving of such notice; and (3) Certificates in lieu of or in exchange for which other Certificates shall have been executed and delivered by the Trustee pursuant to Section 2.09. "Owner" or "Certificate Owner" , or any similar term, when used with respect to a Certificate, means the person in whose name the ownership of such Certificates shall be registered. "Permitted Investments" means any of the following which at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein: (a) Federal Securities; (b) interest-bearing demand or time deposits (including certificates of deposit) in national or State banks (including the Trustee) either: (i ) the debt 5 obligations of which, or the debt obligations of the holding company of which, are • rated AAA or better by Standard & Poor' s Corporation; or (ii ) which have deposits insured by the Federal Deposit Insurance Corporation or in federal savings and loan associations or State chartered savings and loan associations which have deposits insured by the Federal Savings and Loan Insurance Corporation ; and (c) money market funds which are rated AAA or better by Standard & Poor' s Corporation. "Prepayment" means any payment applied towards the prepayment of the Installment Payments, in whole or in part, pursuant to Article VI of the First Installment Sale Agreement. "Project" means the public parking structure to be constructed on the Site, and all other buildings and related and appurtenant facilities, property and improvements identified more particularly in Exhibit B to the First Installment Sale Agreement. "Proportionate Share" means, when used with respect to any Developer, the Proportionate Share of such Developer as defined in Section 1. 1 of the Second Installment Sale Agreement to which such Developer is a party. "Regular Record Date" means the close of business on the fifteenth day of the month immediately preceding each Interest Payment Date, whether or not such fifteenth day is a business day. "Reimbursement Agreement" means the Reimbursement and Indemnity Agreement, dated the date hereof, by and between the Surety and the Guarantor, and any duly authorized and executed amendment thereto. "Reserve Fund" means the fund by that name established and held by the Trustee pursuant to Article VI hereof. "Reserve Requirement" means (i ) from and after the Closing Date to and including the earlier of the Completion Date or July 1, 1987, the amount of $3,000,000; and (ii) following the earlier of the Completion Date or July 1, 1987, the amount of $3,382.875. "Revenues" means the rents, receipts, payments and other income and revenue derived by the Agency with respect to, or otherwise derived from, the installment sale of the Project to the Developers pursuant to the Second Installment Sale Agreements, including without limitation (i ) all installment payments paid by the Developers pursuant to Section 4.3(a) of the respective Second Installment Sale Agreements, (ii ) all amounts derived by the Trustee with respect to the Deeds of Trust, (iii) all Net Proceeds of insurance or condemnation award, (iv) all amounts derived by the Trustee with respect to the Surety Bond, (v) all amounts derived by the Trustee under the Guaranty Agreement, (vi ) all amounts derived from the investment of funds held by the Trustee under the Trust Agreement, and (vii ) any other amounts required hereunder or under the Trust Agreement to be applied to the payment of the Installment Payments. 6 "Second Assignment Agreement" means the Second Assignment Agreement, dated the date hereof, by and between the Agency as assignor and the Seller as assignee. "Second Installment Sale Agreements" means, collectively, each of the Second Installment Sale Agreements, dated the date hereof, by and between the Agency as seller and each of the Developers as purchaser of the Developers' respective portions of the Project, and any duly authorized and executed amendment thereto. "Seller" means Desert Fashion Plaza, Inc. , a corporation organized and existing under the laws of the State of Ohio, and its successors and assigns. "Seller Representative" means any person authorized by the Seller to act on behalf of the Seller under or with respect to this Agreement pursuant to a written instrument filed with the Agency, the Trustee, the Surety, the Guarantor and each of the Developers. "Site" means the real property located in the Central Business District Redevelopment Project Area of the Agency in the City of Palm Springs, California, described in Exhibit C to the First Installment Sale Agreement. "S&P" means Standard & Poor' s Corporation, a corporation organized and existing under and pursuant to the laws of the State of New York, and its successors and assigns. "Surety" means Industrial Indemnity Company, a corporation organized under the laws of the State of California. "Surety Bond" means the surety bond issued by the Surety insuring the Guaranty Agreement. "Surety Representative" means a person authorized by the Surety to act on behalf of the Surety under or with respect to this Agreement pursuant to a written instrument filed with the Agency, the Trustee, the Seller and each of the Developers. "Trust Agreement" means this Trust Agreement, by and among the Trustee, the Seller and the Agency, and any duly authorized and executed amendment hereto. "Trustee" means Security Pacific National Bank, or any successor thereto acting as Trustee pursuant to the Trust Agreement. "Term of the First Installment Sale Agreement" means the time during which the First Installment Sale Agreement is in effect, as provided for in Section 4.2 of the First Installment Sale Agreement. Section 1.02. Authorization . Each of the parties hereby represents and warrants that is has full legal authority and is duly empowered to enter into this Agreement, and has taken all actions necessary to authorize the execution of this Agreement by the officers and persons signing it. 7 ARTICLE II THE CERTIFICATES OF PARTICIPATION Section 2.01. Authorization. The Trustee is hereby authorized and directed upon written request from the Seller to prepare, execute and deliver, to the Original Purchaser, Certificates in an aggregate principal amount of $23,250,000 evidencing proportionate ownership interests in the Installment Payments and the Prepayments. Section 2.02. Date. Each Certificate shall be dated as of September 1, 1984, and interest with respect thereto shall be payable from the Interest Payment Date next preceding the date of authentication thereof, unless: (i) it is dated as of an Interest Payment Date, in which event interest with respect thereto shall be payable from the date thereof; or (ii ) it is dated after a Regular Record Date and before the following Interest Payment Date, in which event interest with respect thereto shall be payable from such Interest Payment Date; or (iii) it is dated prior to February 15, 1985, in which event interest with respect thereto shall be payable from September 1, 1984; provided, however, that if, as of the date of any Certificate, interest is in default with respect to any Outstanding Certificates, interest with respect to such Certificate shall be payable from the Interest Payment Date to which interest has previously been paid or made available for payment with respect to the Outstanding Certificates. Section 2.03. Maturity; Interest Rates. The Certificates shall mature on the dates and in the principal amounts, and interest with respect thereto shall be computed at the rates, as shown below: Maturity Date Principal Interest (September 1) Amount Rate 1997 $4,000,000 9.90% 1998 7,000,000 10.00 1999 12,250,000 10.00 Section 2.04. Form of Certificates; Interest. The Certificates shall be delivered in the form of fully registered Certificates without coupons in the denomination of $5,000 or any integral multiple thereof, except that no fully registered Certificate may have principal maturing in more than one year. Each maturity of Certificates shall be assigned such numerical and alphabetical designations as shall be deemed advisable by the Trustee. Interest with respect to the Certificates shall be payable on March 1, 1985, and thereafter semiannually on September 1 and March 1 of each year to and including the date of maturity or redemption , whichever is earlier. Said interest shall represent the portion of Installment Payments designated as interest and coming due during the six—month period preceding each Interest Payment Date with respect to the Certificates. The proportionate share of the portion of Installment Payments designated as interest with respect to any Certificate shall be computed by multiplying the portion of Installment Payments designated as principal with i 8 respect to such Certificate by the rate of interest applicable to such Certificate . (on the basis of a 360-day year of twelve 30-day months) . Section 2.05. Form. The Certificates and the assignment to appear thereon shall be substantially in the respective forms set forth in Exhibit A attached hereto and by this reference incorporated herein. Section 2.06. Execution. The Certificates shall be executed by and in the name of the Trustee by the manual signature of an authorized officer of the Trustee. If any officer of the Trustee whose signature appears on any Certificate ceases to be such officer before the Closing Date, such signature shall nevertheless be as effective as if the officer had remained in office until the Closing Date. Any Certificate may be executed on behalf of the Trustee by such person as at the actual date of the execution of such Certificate shall be the proper officer of the Trustee although at the nominal date of such Certificate such person shall not have been such officer of the Trustee. Only such of the Certificates as shall bear thereon a certificate of authentication in the form set forth on the form of the Certificates in Exhibit A hereto, executed and dated by an authorized officer of the Trustee, shall be valid or obligatory for any purpose or entitled to the benefits of this Agreement, and such certificate of the Trustee shall be conclusive evidence that the Certificates so authenticated have been duly authenticated, executed and delivered hereunder and are entitled to the benefits of this Agreement. Section 2.07. _Application of Proceeds. The proceeds received by the Trustee from the sale of the Certificates shall forthwith be set aside by the • Trustee in the following respective funds and in the following order of priority: (1) The Trustee shall deposit in the Installment Payment Fund an amount equal to $3,481,500, constituting the Installment Payment of capitalized interest due and payable by the Agency under the First Installment Sale Agreement on the Closing Date. (2) The Trustee shall deposit in the Reserve Fund an amount equal to the Reserve Requirement. (3) The Trustee shall deposit the remainder of said proceeds in the Construction Fund. Section 2.08. Transfer and Exchange. (a) Transfer of Certificates. Any Certificate may, in accordance with its terms, be transferred upon the registration books required to be kept pursuant to the provisions of Section 2. 12 by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Certificate for cancellation, accompanied by delivery of a written instrument of transfer in a form approved by the Trustee, duly executed. Whenever any Certificate or Certificates shall be surrendered for transfer, the Trustee shall execute, authenticate and deliver a new Certificate or Certificates, for like aggregate principal amount. 9 (b) Exchange of Certificates. Certificates may be exchanged at the principal corporate trust office of the Trustee in Los Angeles, California, for a like aggregate principal amount of Certificates of other authorized denominations of the same maturity. The Trustee may require the payment by the Certificate Owner requesting such exchange of any tax or other governmental charge required to be paid with respect to such exchange. Section 2.09. Certificates Mutilated, Lost Destroyed or Stolen. If any Certificate shall become mutilated, the Trustee, at the expense of the Owner of said Certificate, shall execute and deliver a new Certificate of like tenor, maturity and number in exchange and substitution for the Certificate so mutilated, but only upon surrender to the Trustee of the Certificate so mutilated. Every mutilated Certificate so surrendered to the Trustee shall be cancelled by it and redelivered to, or upon the order of, the Agency. If any Certificate shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee, and, if such evidence is satisfactory to the Trustee and, if an indemnity satisfactory to the Trustee shall be given, the Trustee, at the expense of the Certificate Owner, shall execute and deliver a new Certificate of like tenor and maturity in lieu of and in substitution for the Certificate so lost, destroyed or stolen. The Trustee may require payment by the Certificate Owner of an appropriate fee for each new Certificate delivered under this Section 2.09 and of the expenses which may be incurred by the Trustee in carrying out the duties under this Section 2.09. Any Certificate issued under the provisions of this Section 2.09 in lieu of any Certificate alleged to be lost, destroyed or stolen shall be equally and proportionately entitled to the benefits of this Agreement with all other Certificates secured by this Agreement. The Trustee shall not be required to treat both the original Certificate and any duplicate Certificate as being Outstanding for the purpose of determining the principal amount of Certificates which may be executed and delivered hereunder or for the purpose of determining any percentage of Certificates Outstanding hereunder, but both the original and duplicate Certificate shall be treated as one and the same. Notwithstanding any other provision of this Section 2.09, in lieu of delivering a new Certificate which has been mutilated, lost, destroyed or stolen, and which has matured, the Trustee may make payment with respect to such Certificate. Section 2. 10. Payment. Payment of interest due with respect to any Certificate on any Interest Payment Date shall be made to the person appearing on the registration books of the Trustee as the Owner thereof as of the Regular Record Date immediately preceding such Interest Payment Date, such interest to be paid by check or draft mailed to such Owner at his address as it appears on such registration books or at such other address as he may have filed with the Trustee for that purpose. The principal and redemption price with respect to the Certificates shall be payable in lawful money of the United States of America upon surrender at the principal corporate trust office of the Trustee in Los Angeles, California. Section 2. 11. Execution of Documents and Proof of Ownership. Any request, direction, consent, revocation of consent, or other instrument in writing required or permitted by this Agreement to be signed or executed by Certificate Owners may be in any number of concurrent instruments of similar tenor, and may be signed or executed by such Owners in person or by their attorneys or agents appointed by an 10 instrument in writing for that purpose, or by any bank, trust company or other depository for such Certificates. Proof of the execution of any such instrument, or of any instrument appointing any such attorney or agent, and of the ownership of Certificates shall be sufficient for any purpose of this Agreement (except as otherwise herein provided) , if made in the following manner: (a) The fact and date of the execution by any Owner or his attorney or agent of any such instrument and of any instrument appointing any such attorney or agent, may be proved by a certificate, which need not be acknowledged or verified, of an officer of any bank or trust company located within the United States of America, or of any notary public, or other officer authorized to take acknowledgements of deeds to be recorded in such jurisdictions, that the persons signing such instruments acknowledged before him the execution thereof. Where any such instrument is executed by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, such certificate shall also constitute sufficient proof of his authority. (b) The fact of the ownership of Certificates by any person and the amount, the maturity and the numbers of such Certificates and the date of his holding the same shall be proved by the registration books of the Trustee maintained pursuant to Section 2. 12. Nothing contained in this Article II shall be construed as limiting the Trustee to such proof, it being intended that the Trustee may accept any other evidence of the matters herein stated which the Trustee may deem sufficient. Any request or consent of the Owner of any Certificate shall bind every future Owner of the same Certificate in respect of anything done or suffered to be done by the Trustee in pursuance of such request or consent. Section 2. 12. Certificate Register. The Trustee will keep or cause to be kept, at its principal corporate trust office in Los Angeles, California, sufficient books for the registration and transfer of the Certificates which shall at all times be open to inspection by the Agency and the Seller; and, upon presentation for such purpose, the Trustee shall , under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said books, Certificates as hereinbefore provided. Section 2.13. Temporary Certificates. The Certificates may be initially delivered in temporary form exchangeable for definitive Certificates when ready for delivery. The temporary Certificates may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the Agency, and may contain such reference to any of the provisions of this Trust Agreement as may be appropriate. Every temporary Certificate shall be executed by the Trustee upon the same conditions and in substantially the same manner as the definitive Certificates. If the Trustee delivers temporary Certificates it will execute and furnish definitive Certificates without delay, and thereupon the temporary Certificates may be surrendered, for cancellation, in exchange therefor at the principal corporate trust office of the Trustee in Los Angeles, California, and the Trustee shall deliver in exchange for such temporary Certificates an equal aggregate principal amount of definitive Certificates of authorized denominations. Until so exchanged, the temporary Certificates shall be entitled to the same 11 ARTICLE III • CONSTRUCTION FUND Section 3.01. Construction Fund. The Trustee shall establish a special fund designated as the "Construction Fund" ; shall keep such fund separate and apart from all other funds and moneys held by it; and shall administer such fund as provided herein. There shall be deposited in the Construction Fund the proceeds of sale of the Certificates required to be deposited therein pursuant to Section 2.07, investment earnings on the Installment Payment Fund pursuant to Section 5.05, investment earnings on the Construction Fund and investment earnings on the Reserve Fund pursuant to Section 6.03, and any other funds from time to time deposited with the Trustee for such purpose. Section 3.02. Disbursements. The moneys in the Construction Fund shall be disbursed to the Construction Costs and the Delivery Costs, as follows: (1) In the case of payment of Delivery Costs, the Trustee shall disburse moneys in the Construction Fund only upon receipt by the Trustee of a requisition signed by the Agency Representative and the Seller Representative setting forth the amounts to be disbursed for payment or reimbursement of Delivery Costs and the person or persons to whom said amounts are to be disbursed, stating that the amounts to be disbursed are for Delivery Costs properly chargeable to the Construction Fund. (2) In the case of Construction Costs, the Trustee shall disburse moneys in the Construction Fund from time to time upon receipt by the Trustee of a requisition signed by the Seller Representative which: (a) states with respect to each disbursement to be made: (i ) the requisition number, (ii ) the name and address of the person, firm or corporation to whom payment is due, which may be the Seller in the case of a requisition requesting reimbursement for Construction Costs previously paid by the Seller, (iii) the amount to be disbursed, (iv) that each obligation mentioned therein has been properly incurred, and is a proper charge against the Construction Fund and has not been the basis of any previous disbursement and (v) that at least ninety percent (90%) of the amount of such disbursement, together with all other disbursements theretofore made from the Construction Fund, has been used (a) for payment of amounts incurred after December 21 , 1983, for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation under Section 167 of said Code, or (b) for payment of amounts incurred after December 21, 1983, which are, for federal income tax purposes, chargeable to the Project' s capital account or would be so chargeable either with a proper election or but for a proper election to deduct such amounts; and (b) specifies in reasonable detail the nature of the obligation; and (c) is accompanied by a bill or statement of account for each obligation in the form of AIA Form 702 entitled "Application For Payment". • 13 The Trustee shall be responsible for the safekeeping and investment of the moneys held in the Construction Fund (subject to the right of the Developers to is direct the investment thereof pursuant to Section 8.02), the payment thereof in accordance with this Section , and the application of amounts paid pursuant to such requisitions. Section 3.03. Transfers of Unexpended Proceeds. Upon the earlier of (1) the Completion Date, or (2) July 1 , 1987, the Trustee shall retain in the Construction Fund such amount as shall be specified in written notice filed with the Trustee by the Seller Representative to be required to pay future Construction Costs, and the Trustee shall withdraw and transfer to the Installment Payment Fund the balance of moneys in the Construction Fund. Thereafter, subject to the provisions of Section 3.4 of the First Installment Sale Agreement, all amounts so retained in the Construction Fund but not subsequently used and the notice of such failure of use of which shall be given by the Seller Representative to the Trustee, shall also be transferred by the Trustee into the Installment Payment Fund. The amounts so transferred from the Construction Fund to the Installment Payment Fund shall be held in a segregated account therein and applied to make the Prepayment on September 1, 1987, pursuant to Section 6.4 of the First Installment Sale Agreement and, to the extent not so applied, to be credited towards the principal component of the Installment Payments next required to be paid by the Agency. Until used for one or more of the foregoing purposes, such segregated amount may be invested as permitted by this Agreement, but no portion of such segregated amount may be invested to produce a yield on such amount (computed from the date of transfer into such segregate account and taking into account any investment of such amount from such date) greater than the yield on the First Installment Sale Agreement, computed in accordance with Section 103(c) of the Code. 14 ARTICLE IV • REDEMPTION OF CERTIFICATES Section 4.01. Redemption . (a) Optional Redemption. Certificates maturing on or after September 1, 1992, are subject to redemption in whole or in part, from Prepayments made pursuant to Section 6.2 of the First Installment Sale Agreement, on September 1, 1991, or on any Interest Payment Date thereafter, at a redemption price equal to the principal amount thereof plus a premium (expressed as percentages of the principal amount of Certificates or portions thereof to be redeemed) set forth in the following table, together with accrued interest to the date fixed for redemption: Redemption Dates Premium September 1, 1991 and March 1, 1992 3% September 1, 1992 and March 1, 1993 2% September 1, 1993 and March 1, 1994 1% September 1, 1994 and thereafter 0 Notwithstanding the foregoing, however, the Trustee shall not call any Certificates for redemption pursuant to this Section 4.01(a) unless there shall be deposited with the Trustee an amount sufficient to pay any applicable redemption premium and the Trustee shall have held such amount for a period of at least 123 days during which no event of default under and as defined in subsection (c) of Section 8. 1 of any of the Second Installment Sale Agreements shall have occurred. (b) Redemption From Net Proceeds of Insurance and Condemnation. The Certificates are also subject to redemption on any Interest Payment Date on or after March 1, 1985, in whole or in part, from the Net Proceeds of insurance or condemnation of the Project to be applied to such purpose pursuant to Article VII hereof, which Net Proceeds are deposited in the Installment Payment Fund and credited towards the Prepayment made by the Agency pursuant to Section 6.3 of the First Installment Sale Agreement, at a redemption price equal to the principal amount thereof, together with accrued interest to the date fixed for redemption, without premium. (c) Prepayment From Excess Proceeds. The Certificates shall also be subject to redemption on September 1 , 1987, from excess moneys transferred to the Installment Payment Fund for such purpose pursuant to Section 6.4 of the First Installment Sale Agreement and Section 3.03 hereof, in whole or in part, at a redemption price equal to the principal amount thereof to be redeemed together with accrued interest thereon to the redemption date, without premium. Section 4.02. Selection of Certificates for Redemption. Whenever provision is made in this Agreement for the redemption of Certificates and less than all Outstanding Certificates are called for redemption , the Trustee shall select Certificates for redemption, from the Outstanding Certificates not previously called for redemption, in chronological order of principal maturities. The Trustee shall select Certificates for redemption by lot within a maturity in any manner which the Trustee shall in its sole discretion deem appropriate and i 15 fair. In the event that any Certificate of a denomination is in excess of $5,000, such Certificate shall be selected by the Trustee for redemption on the basis that such Certificate represents individual Certificates each of $5,000 denomination. The Trustee shall promptly notify the Agency, the Developers and the Seller in writing of the Certificates so selected for redemption. Section 4.03. Notice of Redemption . When redemption is authorized or required pursuant to Section 4.01 hereof, the Trustee shall give notice of the redemption of the Certificates. Such notice shall specify: (a) that the Certificates or a designated portion thereof are to be redeemed, (b) the date of redemption , and (c) the place or places where the redemption will be made. Such notice shall further state that on the specified date there shall become due and payable upon each Certificate, the principal and premium, if any, together with interest accrued to said date, and that from and after such date interest with respect thereto shall cease to accrue and be payable, provided moneys sufficient to make such payment are on deposit at the place of payment at such time. Notice of such redemption shall be mailed to the Original Purchaser, or if the Original Purchaser is a syndicate, to the managing member of such syndicate, and to the respective Owners of Certificates designated for redemption at their addresses appearing on the Certificate registration books, at least thirty days but not more than sixty days prior to the redemption date, which notice shall , in addition to setting forth the above information , set forth, in the case of each Certificate called only in part, the portion of the principal thereof which is to be redeemed; provided that neither failure to receive such notice nor any immaterial defect in any notice so mailed shall affect the sufficiency of the proceedings for the redemption of such Certificates. Section 4.04. Partial Redemption of Certificate. Upon surrender of any Certificate redeemed in part only, the Trustee shall execute, authenticate and deliver to the registered Owner thereof, at the expense of the Agency a new Certificate or Certificates of authorized denominations equal in aggregate principal amount to the unredeemed portion of the Certificate surrendered and of the same interest rate and the same maturity. Section 4.05. Effect of Notice of Redemption. Notice having been given as aforesaid, and moneys for the redemption (including the interest to the applicable date of redemption) , having been set aside in the Installment Payment Fund, the Certificates shall become due and payable on said date of redemption , and, upon presentation and surrender thereof at the office or offices specified in said notice, said Certificates shall be paid at the unpaid principal amount (or applicable portion thereof) with respect thereto, plus interest accrued and unpaid to said date of redemption. If, on said date of redemption, moneys for the redemption of all the Certificates to be redeemed, together with interest to said date of redemption, shall be held by the Trustee so as to be available therefor on such date of redemption, and, if notice of redemption thereof shall have been given as aforesaid, then, from and after said date of redemption, interest with respect to the Certificates shall cease to accrue and become payable. All moneys held by or on behalf of the Trustee for the redemption of Certificates shall be held in trust for the account of the Owners of the Certificates so to be redeemed. 16 All Certificates paid at maturity or redeemed prior to maturity pursuant to the provisions of this Article shall be cancelled upon surrender thereof and delivered to or upon the order of the Agency. 17 ARTICLE V INSTALLMENT PAYMENTS; INSTALLMENT PAYMENT FUND Section 5.01 . Assignment of Rights in Installment Sale Agreement. The Seller has in the First Assignment Agreement transferred, assigned and set over to the Trustee certain of its rights under the First Installment Sale Agreement, including but not limited to all of the Seller' s rights to receive and collect all of the Installment Payments, the Prepayments and all other amounts required to be deposited in the Installment Payment Fund pursuant to the First Installment Sale Agreement or pursuant hereto, and including but not limited to all of the Seller' s rights as assignee of the Agency pursuant to the Second Assignment Agreement (including the Agency' s rights to receive and collect all of the Revenues) . All Installment Payments, Prepayments, Revenues and such other amounts to which the Seller may at any time be entitled (excluding, however, amounts on deposit in the Construction Fund and payable to the Seller as Construction Costs) shall be paid directly to the Trustee, and all of the Installment Payments, Prepayments and Revenues collected or received by the Seller shall be deemed to be held and to have been collected or received by the Seller as the agent of the Trustee, and if received by the Seller at any time shall be deposited by the Seller with the Trustee within one business day after the receipt thereof, and all such Installment Payments, Prepayments and Revenues and such other amounts shall be forthwith deposited by the Trustee upon the receipt thereof in the Installment Payment Fund (except as provided in Section 6.04) . Section 5.02. Establishment of Installment Payment Fund. The Trustee shall establish a special fund designated as the "Installment Payment Fund" . All . moneys at any time deposited by the Trustee in the Installment Payment Fund shall be held by the Trustee in trust for the benefit of the Agency. So long as any Certificates are Outstanding, the Installment Payment Fund and the moneys deposited therein shall be used and applied by the Trustee as hereinafter set forth. Section 5.03. Deposits. There shall be deposited in the Installment Payment Fund all Installment Payments and Prepayments received by the Trustee (except as provided in Section 6.04) , including all Revenues, any other moneys received by the Trustee for deposit therein pursuant to the First Installment Sale Agreement and any other moneys required to be deposited therein pursuant to the First Installment Sale Agreement or pursuant to this Agreement. Section 5.04. Application of Moneys. All amounts in the Installment Payment Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the principal of and interest and redemption premiums (if any) with respect to the Certificates as the same shall become due and payable, in accordance with the provisions of Article II and Article IV. Section 5.05. Transfers of Investment Earnings to Construction Fund. The Trustee shall , at least semiannually, transfer any income or profit on the investment of moneys in the Installment Payment Fund to the Construction Fund before the earlier of (a) the Completion Date, or (b) July 1, 1987. • 18 Section 5.06. Surplus. Any surplus remaining in the Installment Payment Fund, after redemption and payment of all Certificates, including premiums (if any) and accrued interest and payment of any applicable fees to the Trustee, or provision for such redemption or payment having been made in accordance with Section 14.01, shall be withdrawn by the Trustee and paid to the Surety in an amount (if any) certified in written notice filed by the Surety with the Trustee (copies of which notice shall be given to the Developers in accordance with Section 14.02 hereof) to be due and owing to the Surety under the Reimbursement Agreement, and any remaining balance shall be paid to each of the Developers (other than any Developer with respect to whom an event of default shall have occurred and be continuing under and as defined in the Second Installment Sale Agreement to which such Developer is a party) in accordance with their respective Proportionate Shares. i 19 ARTICLE VI . RESERVE FUND Section 6.01. Establishment of Reserve Fund. The Trustee shall establish a special fund designated as the "Reserve Fund" . All moneys at any time on deposit in the Reserve Fund shall be held by the Trustee in trust for the benefit of the Agency, and applied solely as provided herein. Section 6.02. Deposits. There shall be deposited in the Reserve Fund an amount equal to the Reserve Requirement, in accordance with Section 2.07. Moneys in the Reserve Fund shall be held in trust as a reserve to pay when due the Installment Payments. Section 6.03. Transfers of Excess. The Trustee shall , semiannually on or prior to each February 15 and August 15, beginning February 15, 1985, transfer any amounts in the Reserve Fund in excess of the Reserve Requirement to the Construction Fund before the earlier of (a) the Completion Date, or (b) July 1, 1987. Thereafter, the Trustee shall retain in the Reserve Fund all earnings on the investment of amounts therein until the amount therein equals the Reserve Requirement; following which event the Trustee shall , on or before February 15 and August 15 of each year, transfer any amounts then on hand in the Reserve Fund in excess of the Reserve Requirement to the Installment Payment Fund. Section 6.04. Application in Event of Deficiency in Installment Payment Fund. If on any Interest Payment Date the moneys available in the Installment Payment Fund do not equal the amount of the principal and interest with respect to the Certificates then coming due and payable, the Trustee shall apply the moneys available in the Reserve Fund to make delinquent Installment Payments on behalf of the Agency by transferring the amount necessary for this purpose to the Installment Payment Fund. Upon receipt of any delinquent Installment Payment with respect to which moneys have been advanced from the Reserve Fund, such Installment Payment shall be deposited in the Reserve Fund to the extent of such advance. Section 6.05. Transfer To Make All Installment Payments. If on any Interest Payment Date the moneys on deposit in the Reserve Fund and the Installment Payment Fund (excluding amounts required for payment of principal , interest and redemption premium, if any, with respect to Certificates not presented for payment) are sufficient to pay all Outstanding Certificates, including all principal , interest and redemption premiums (if any) , the Trustee shall , upon the written direction (which may take the form of telephonic, telex or other telecommunicated notice) of each of the Developer Representatives, transfer all amounts then on deposit in the Reserve Fund to the Installment Payment Fund to be applied to the payment of the Installment Payments or Prepayments on behalf of the Agency, and such moneys shall be distributed to the Owners of Certificates in accordance with Article II of this Trust Agreement. Any amounts remaining in the Reserve Fund upon payment in full of all Outstanding Certificates, or upon provision for such payment as provided in Section 14.01, shall be withdrawn by the Trustee and paid to the Surety in an amount (if any) certified in written notice filed by the Surety with the Trustee (copies of which notice shall be given to the Developers in accordance with Section 14.02 hereof) to be due and owing to the Surety under the 20 Reimbursement Agreement, and any remaining balance shall be paid to each of the Developers (other than any Developer with respect to whom an event of default shall have occurred and shall be then continuing under and as defined in the Second Installment Sale Agreement to which such Developer is a party) in accordance with their respective Proportionate Shares. i 21 ARTICLE VII . INSURANCE AND CONDEMNATION FUND; INSURANCE; EMINENT DOMAIN Section 7.01. Establishment of Insurance and Condemnation Fund; Deposit of Net Proceeds. Any Net Proceeds of insurance against accident to or destruction of any structure constituting any part of the Project collected by any of the Developers in the event of any such accident or destruction, and any Net Proceeds of eminent domain award (or sale to a government threatening to exercise the power of eminent domain) , shall be transferred to the Trustee pursuant to Article V of the respective Second Installment Sale Agreements and deposited by the Trustee in a special fund designated as the "Insurance and Condemnation Fund" to be applied by the Trustee solely as provided herein. Section 7.02. Application of Net Proceeds. (a) From Insurance Award. The Net Proceeds of any insurance award, other than rental interruption insurance, resulting from any damage to or destruction of the Project by fire or other casualty shall be deposited in the Insurance and Condemnation Fund by the Trustee promptly upon receipt thereof and, if the affected Developer or Developers determine for reasons within their sole discretion, within 90 days following such deposit, that the replacement, repair, restoration , modification or improvement of the Project is not economically feasible or in the best interest of such Developer or Developers, then such Net Proceeds shall be promptly transferred by the Trustee to the Installment Payment Fund and credited to such Developer' s or Developers' obligations under Section 9.3 of the respective Second Installment Sale Agreements; provided, however, that in the event of damage or destruction of the Project in full , such Net Proceeds may be transferred to the Installment Payment Fund only if sufficient, together with other moneys available therefor (including moneys available in the Reserve Fund and the Installment Payment Fund) , to cause the redemption of all Outstanding Certificates. All Net Proceeds deposited in the Insurance and Condemnation Fund and not so transferred to the Installment Payment Fund shall be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Project by the affected Developer or Developers, upon receipt of a requisition satisfactory to the Trustee signed by such Developer' s or Developers' Representative stating with respect to each payment to be made (i) the requisition number, (ii) the name and address of the person, firm or corporation to whom payment is due, (iii ) the amount to be paid and (iv) that each obligation mentioned therein has been properly incurred, is a proper charge against the Insurance and Condemnation Fund, has not been the basis of any previous withdrawal , and specifying in reasonable detail the nature of the obligation, accompanied by a bill or a statement of account for such obligation. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to such Developer or Developers. (b) From Eminent Domain Award. The Net Proceeds of any eminent domain award (or sale to a government threatening to exercise the power of eminent domain) shall be deposited in the Insurance and Condemnation Award Fund to be held and applied by the Trustee as follows: • 22 (1) (A) If the Developers notifies the Trustee in writing of • their determination, which shall be for reasons within their sole discretion, that (i) such eminent domain proceedings have not materially affected the operation of the Project or the ability of such Developer or Developers to meet any of their obligations under the respective Second Installment Sale Agreements, and (ii ) that such proceeds are not needed for repair, rehabilitation or replacement of the Project, the Trustee shall transfer such proceeds to the Installment Payment Fund to be credited to such Developer' s or Developers' obligations under Section 9.3 of the Second Installment Sale Agreements. (B) If the affected Developer or Developers notify the Trustee of their determination, which shall be for reasons within their sole discretion, that (i ) such eminent domain proceedings have not materially affected the operation of the Project or the ability of such Developer or Developers to meet any of their obligations under the respective Second Installment Sale Agreements, and (ii ) such proceeds are needed for repair, rehabilitation or replacement of the Project, the Trustee shall pay to such Developer or Developers, or to their order, from said proceeds such amounts as the Developers may expend for such repair, rehabilitation or replacement, upon the filing of requisitions of such Developer' s or Developers' Representative, certificates of architects or engineers and other documents as the Trustee may at its discretion request. (2) If (A) less than all of the Project shall have been taken in such eminent domain proceedings (or sold to a government threatening to exercise the power of eminent domain) , and if the affected Developer or Developers notify the Trustee in writing of their determination, which shall be for reasons within their sole discretion , that such eminent domain proceedings have materially affected the • operation of the Project or the ability of such Developer or Developers to meet any of its obligations under the respective Second Installment Sale Agreements or (B) all of the Project shall have been taken in such eminent domain proceedings, then the Trustee shall transfer such proceeds to the Installment Payment Fund to be credited to the Developers' obligations under Section 9.3 of the respective Second Installment Sale Agreements. (c) Net Proceeds of $50,000 or Less. The parties hereto agree that the provisions of this Article VII are not intended and shall not be construed to apply to the net proceeds of any insurance award or eminent domain award (including the net proceeds of any sale to a government threatening to exercise the power of eminent domain) the aggregate amount of which is less than or equal to $50,000. Such proceeds shall be paid to the affected Developer or Developers and applied in the sole discretion of such Developer or Developers for any lawful purposes. Section 7.03. Cooperation. The Trustee and the Agency shall cooperate fully with any Developer at the expense of such Developer in filing any proof of loss with respect to any insurance policy maintained pursuant to the applicable Deed of Trust and in the prosecution or defense of any prospective or pending eminent domain proceeding with respect to the Project, the Site or any part thereof. • 23 ARTICLE VIII MONEYS IN FUNDS; INVESTMENT Section 8.01. Held in Trust. The moneys and investments held by the Trustee under this Agreement are irrevocably held in trust for the benefit of the Agency, the Owners of the Certificates, and the Developers to the extent provided herein, and for the purposes herein specified, and such moneys, and any income or interest earned thereon, shall be expended only as provided in this Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of the Seller, the Trustee, the Developers, the Agency or any Owner of the Certificates. Section 8.02. Investments Authorized. Moneys held by the Trustee hereunder shall be invested and reinvested by the Trustee, in Permitted Investments. The Developer Representatives may by written order filed with the Trustee direct such investment in specific Permitted Investments. In the absence of specified directions from the Developer Representatives to the contrary, all moneys held by the Trustee hereunder shall be invested immediately upon receipt in Federal Securities having a maturity of not greater than thirty (30) days. Such investments, if registrable, shall be registered in the name of the Trustee and held by the Trustee. The Trustee may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Section . Such investments and reinvestments shall be made giving full consideration to the time at which funds are required to be available. The Trustee may act as purchaser or agent in the making or disposing of any investment. Any such investment of funds shall mature in the case of investments made from moneys on deposit in any other fund established hereunder, not later than the day on which such moneys are estimated by the Trustee to be required to be paid out in accordance herewith. Section 8.03. Accounting. The Trustee shall furnish to the Agency and the Developers, not less than quarterly, an accounting of all investments made by the Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of funds made by it in accordance with Section 8.02, except to the extent such liabilities arise by reason of Security Pacific National Bank' s capacity as issuer of any investment. Section 8.04. Allocation of Earnings. Any income, profit or loss on such investments shall be deposited in or charged to the respective funds from which such investments were made, and any interest on any deposit of funds shall be deposited in the fund from which such deposit was made, except as otherwise provided herein, for disbursement as provided herein. Section 8.05. Valuation and Disposition of Investments. For the purpose of determining the amount in any fund, all Permitted Investments credited to such fund shall be valued at cost (exclusive of accrued interest) . The Trustee may sell at the best price obtainable, or present for redemption, any Permitted Investment so purchased by the Trustee whenever it shall be necessary in order to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund to which such Permitted Investment is credited, and the Trustee shall not be liable or responsible for any loss resulting from such investment. 24 Section 8.06. Deposit and Investment of Moneys in Funds. The Trustee may, . and upon the written request of the Developers Representative shall , commingle any of the funds held by it pursuant to this Agreement into a separate fund or funds for investment purposes only, provided, however, that all funds or accounts held by the Trustee hereunder shall be accounted for separately notwithstanding such commingling by the Trustee. Section 8.07. Arbitrage Covenant. The Trustee and the Agency hereby covenant with the Owners of the Certificates that they will make no use of the proceeds of the Certificates which, if such use or investment had been made on the Closing Date, would have caused the obligations of the Agency under the First Installment Sale Agreement to be "arbitrage bonds" subject to federal income taxation by reason of Section 103(c) of the Code. i i 25 ARTICLE IX . THE TRUSTEE Section 9.01. Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Agreement, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions: (a) The Trustee, prior to the occurrence of an event of default and after curing of all events of default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived) the Trustee may exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent and reasonable man would exercise or use under the circumstances in the conduct of his own affairs. (b) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees but shall be answerable for the conduct of the same in accordance with the standard specified above, and shall be entitled to advice of counsel concerning all matters of trust hereof and its duties hereunder, and may in all cases be reimbursed for such reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. (c) The Trustee shall not be responsible for any recital herein, or in the Certificates (except with respect to the certificate of authentication of Trustee endorsed on the Certificates) , or for the validity of the execution by the Seller and the Agency of the First Installment Sale Agreement or the validity of the execution by the Agency and the Developers of the Second Installment Sale Agreements, or of any supplements thereto or instruments of further assurance, or for the sufficiency of the security for the Installment Payments and the Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, conditions or agreements on the part of the Agency or the Seller under the First Installment Sale Agreement or the observance or performance of any covenants, conditions or agreements on the part of the Agency or the Developers under the Second Installment Sale Agreements, except as hereinafter set forth. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of funds made by it accordance with Article VIII of this Agreement. (d) The Trustee shall not be accountable for the use of any Certificates authenticated or delivered hereunder. The Trustee may become the Owner of Certificates with the same rights which it would have if not the Trustee. (e) In the absence of bad faith on its part, Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken or omitted to be taken by the Trustee in good faith pursuant to this Agreement upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the Owner of any Certificate, 26 shall be conclusive and binding upon all future Owners of the same Certificate and uPon Certificates delivered in exchange therefor or in place thereof. (f) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed by the Seller Representative, any Developer Representatives or the Agency Representative, with respect to matters concerning the Seller, any Developer or the Agency, respectively, as sufficient evidence of the facts therein contained and prior to the occurrence of an Event of Default of which the Trustee has been notified, shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed by it to be necessary or advisable, but shall in no case be bound to secure the same. The Trustee may accept a certificate of the Agency Representative to the effect that an authorization in the form therein set forth has been adopted by the Agency as conclusive evidence that such authorization has been duly adopted, and is in full force and effect. (g) The permissive right of the Trustee to do things enumerated in this Agreement shall not be construed as a duty and it shall not be answerable for other than its negligence or willful default. The immunities and exceptions from liability of the Trustee shall extend to its officers, directors, employees and agents. (h) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder except failure by the Agency to cause to be made any of the payments to the the Trustee required to be made by the First Installment Sale Agreement or failure by the Agency or the Seller to file with the Trustee any document required by this Agreement or the First Installment Sale Agreement to be so filed subsequent to the Closing Date, unless the Trustee shall be specifically notified in writing of such default by the Issuer or by the Owners of at least twenty-five percent (25%) in aggregate principal amount of Certificates then outstanding and all notices or other instruments required by this Agreement to be delivered to the Trustee, must, in order to be effective, be delivered at the principal corporate trust office of the Trustee, and in the absence of such notice so delivered the Trustee may conclusively assume there is no default except as aforesaid. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, to the extent the same shall be reasonably necessary to the performance of the Trustee' s duties hereunder, to inspect the Project and the Site, including all books, papers and records of the Seller and the Agency pertaining to the Project, the Site and the Certificates, and to take such memoranda from and with regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. 27 (k) Notwithstanding anything elsewhere in this Agreement with respect to the authentication of any Certificates, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Agreement, the Trustee shall have the right, but shall not be required, to demand any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action, which may be reasonably necessary for the purpose of establishing the right to the authentication of any Certificates, the withdrawal of any cash, or the taking of any other action by the Trustee. (1 ) Before taking the action referred to in Section 13.02 hereof, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful default in connection with any such action. (m) All moneys received by the Trustee shall , until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required by law. The Trustee shall not be under any liability for interest on any moneys received hereunder except such as may be agreed upon. Section 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall be entitled to payment and reimbursement for reasonable fees for its services rendered hereunder, not to exceed the amounts set forth in Exhibit B attached hereto, and all advances, reasonable counsel fees (including expenses and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services; provided, however, that the Developers' prior written consent shall be obtained, to the extent possible. The Trustee shall have no claim against or lien upon any moneys deposited in any of the funds established hereunder for payment of any such fees, charges and expenses. Section 9.03. Notice of Certificate Owners if Event of Default Occurs. If an Event of Default occurs of which the Trustee has notice, then the Trustee shall promptly give written notice thereof by registered or certified mail to the Owner of each Certificate. Section 9.04. Intervention By Trustee. In any judicial proceeding to which the Agency or the Seller is a party which, in the reasonable opinion of the Trustee and its counsel , has a substantial bearing on the interests of Owners of the Certificates, the Trustee may intervene on behalf of Certificate Owners, subject to Section 9.01(1 ) hereof, and shall do so if requested in writing by the Owners of at least twenty—five percent (25%) of the aggregate principal amount of Certificates then Outstanding. The rights and obligations of the Trustee under this Section are subject to the approval of a court of competent jurisdiction. Section 9.05. Successor Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall 28 be and become. successor Trustee hereunder and all other matters as was its . predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 9.06. Resignation By Trustee. The Trustee and any successor Trustee may at any time resign from the trusts hereby created by giving thirty days' written notice by registered or certified mail to the Seller, the Agency, the Developers, the Owner of each Certificate, and such resignation shall take effect upon the appointment of a successor Trustee by the Certificate Owners or by the Developers and the acceptance by such successor Trustee of its duties hereunder. Section 9.07. Removal of Trustee. The Trustee may be removed at any time, by an instrument or concurrent instruments in writing delivered to the Trustee, to the Agency, the Developers, the Surety and the Seller, and signed by (i) the Agency, (ii ) the Developer Representatives with the written consent of the Surety, whose consent shall not unreasonably be withheld, or (iii) the Owners of a majority in aggregate principal amount of Certificates then Outstanding. Section 9.08. Appointment of Successor Trustee by Certificate Owners; Temporary Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the Owners of a majority in aggregate principal amount of Certificates then Outstanding, by an instrument or concurrent instruments in writing signed by such Owners, or by their attorneys in fact, duly authorized and a copy of which shall be delivered personally or sent by registered mail to the Agency and the Developers; provided, nevertheless, that in case of such vacancy the Developers by an instrument executed and signed by all of the Developer Representatives, may appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by the Certificate Owners in the manner above provided. Every such Trustee appointed pursuant to the provisions of this Section shall be a trust company or bank in good standing having a reported capital and surplus and undivided profits of not less than $25,000,000 if there be such an institution willing, qualified and able to accept the trust upon customary terms. Section 9.09. Concerning Any Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its or his predecessor and also to the Agency, the Developers, the Surety and the Seller an instrument in writing accepting such appointment hereunder and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the properties, rights, powers, trusts, duties and obligations of its predecessors; but such predecessor shall , nevertheless, on the written request of the Developers, or of its successor, execute and deliver an instrument transferring to such successor all the properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should any instrument in writing from the Developers Representative be required by any successor Trustee for more fully and certainly vesting in such successor the rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such i 29 instruments in writing shall , on request, be executed, acknowledged and delivered • by the Developers Representative. Section 9. 10. Appointment of Co-Trustee. It is the purpose of this Agreement that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as Trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or the First Installment Sale Agreement, and in particular in case of the enforcement of either on default, or in case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional individual or institution as a separate or co-trustee. The following provisions of this Section 9. 10 are adapted to these ends. In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, title and interest expressed or intended by this Agreement to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them. Should any instrument in writing from the Agency be required by the separate trustee or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall , on request, be executed, acknowledged and delivered by the Agency Representative. In case any separate trustee or co-trustee, or a successor to either, shall die, become incapable of acting, resign or be removed, all the properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee. 30 ARTICLE X MODIFICATION OR AMENDMENT OF AGREEMENTS Section 10.01. Amendments Permitted. This Agreement and the rights and obligations of the Owners of the Certificates, and the First Installment Sale Agreement, the Second Installment Sale Agreements, the Guaranty Agreement, the Deeds of Trust and the rights and obligations of the respective parties thereto, may be modified or amended at any time by a supplemental agreement which shall become effective as provided in Section 10.02. No such modification or amendment shall (1) extend or have the effect of extending the fixed maturity of any Certificate or reducing the interest rate with respect thereto or extending the time of payment of interest, or reducing the amount of principal thereof or reducing any premium payable upon the redemption thereof, without the express consent of the Owner of such Certificate, or (2) reduce or have the effect of reducing the percentage of Certificates required for the affirmative vote or written consent to an amendment or modification hereof, of the First Installment Sale Agreement, the Second Installment Sale Agreements, the Guaranty Agreement or the Deeds of Trust, or (3) modify any of the rights or obligations of the Trustee without its written assent thereto. This Agreement and the rights and obligations of the Owners of the Certificates, the First Installment Sale Agreement, the Second Installment Sale Agreements, the Guaranty Agreement, the Deeds of Trust and the rights and obligations of the respective parties thereto, may be modified or amended at any time by a supplemental agreement, with the prior written consent of the Surety, which consent shall not be unreasonably withheld or delayed, and without the consent of any such Owners, but only to the extent permitted by law and only (1) to add to the covenants and agreements of any party, other covenants to be observed, or to surrender any right or power herein reserved to the Seller or the Agency, (2) to cure, correct or supplement any ambiguous or defective provision contained herein or therein, (3) in regard to questions arising hereunder or thereunder, as the parties hereto or thereto may deem necessary or desirable and which shall not materially adversely affect the interests of the Owners of the Certificates, or (4) for the purpose of obtaining a rating from S&P with respect to the Certificates based upon the security provided by the Surety Bond disregarding the security provided by the Insurance Policy, provided that such rating is not lower than the rating originally assigned to the Certificates by S&P and provided that any such modification or amendment does not materially adversely affect the interests of the Owners of the Certificates. Any such supplemental agreement not requiring the consent of the Certificate Owners shall become effective upon execution and delivery by the parties hereto or thereto as the case may be. Section 10.02. Procedure for Amendment with Written Consent of Certificate Owners. This Agreement, the First Installment Sale Agreement, the Second Installment Sale Agreements, the Guaranty Agreement and the Deeds of Trust may be amended by supplemental agreement as provided in this Section 10.02 in the event the consent of the Owners of the Certificates is required pursuant to Section 10.01. A copy of such supplemental agreement, together with a written notice to the Certificate Owners summarizing the content of such supplemental agreement and requesting their consent thereto, shall be mailed by the Trustee to each Owner of a 31 Certificate at his address as set forth on the Certificate registration books maintained pursuant to Section 2. 12, but failure to mail copies of such supplemental agreement and notice shall not affect the validity of the supplemental agreement when assented to as in this Section provided. Such supplemental agreement shall not become effective unless there shall be filed with the Trustee the written consent of the Surety, which consent shall not be unreasonably withheld or delayed, and the written consents of the Owners of twenty-five percent (25%) in aggregate principal amount of the Certificates then Outstanding (exclusive of Certificates disqualified as provided in Section 10.03) and a notice shall have been mailed as hereinafter in this Section provided. Each such consent shall be effective only if accompanied by proof of ownership of the Certificates for which such consent is given, which proof shall be such as is permitted by Section 2.11. Any such consent shall be binding upon the Owner of the Certificate giving such consent and on any subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by the Owner giving such consent or a subsequent Owner by filing such revocation with the Trustee prior to the date when the notice hereinafter in this Section provided for has been mailed. After the Owners of the required percentage of Certificates shall have filed their consents to such supplemental agreement, the Trustee shall mail a notice to the Owners of the Certificates in the manner hereinbefore provided in this Section for the mailing of such supplemental agreement of the notice of adoption thereof, stating in substance that such supplemental agreement has been consented to by the Owners of the required percentage of Certificates and will be effective as provided in this Section (but failure to mail copies of said notice shall not affect the • validity of such supplemental agreement or consents thereto) . A record, consisting of the papers required by this Section to be filed with the Trustee, shall be conclusive proof of the matters therein stated. Such supplemental agreement shall become effective upon the mailing of such last-mentioned notice, and such supplemental agreement shall be deemed conclusively binding upon the parties hereto and the Owners of all Certificates at the expiration of sixty (60) days after such mailing, except in the event of a final decree of a court of competent jurisdiction setting aside such consent in a legal action or equitable proceeding for such purpose commenced within such sixty (60) day period. Section 10.03. Disqualified Certificates. Certificates owned or held by or for the account of the Agency or by any person directly or indirectly controlled or controlled by, or under direct or indirect common control with the Agency or the City of Palm Springs (except any Certificates held in any pension or retirement fund) shall not be deemed Outstanding for the purpose of any vote, consent, waiver or other action or any calculation of Outstanding Certificates provided for in this Agreement, and shall not be entitled to vote upon, consent to, or take any other action provided for in this Agreement. Section 10.04. Effect of Supplemental Agreement. From and after the time any supplemental agreement becomes effective pursuant to this Article X, this Agreement, the First Installment Sale Agreement or the Second Installment Sale Agreements, as the case may be, shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations of the parties 32 hereto or thereto and all Owners of Certificates Outstanding, as the case may be, shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any supplemental agreement shall be deemed to be part of the terms and conditions of this Agreement, the First Installment Sale Agreement or the Second Installment Sale Agreements, as the case may be, for any and all purposes. The Trustee may require each Certificate Owner, before his consent provided for in this Article X shall be deemed effective, to reveal whether the Certificates as to which such consent is given are disqualified as provided in Section 10.03. Section 10.05. Endorsement or Replacement of Certificates Delivered After Amendments. The Trustee may determine that Certificates delivered after the effective date of any action taken as provided in this Article X shall bear a notation, by endorsement or otherwise, in form approved by the Trustee, as to such action. In that case, upon demand of the Owner of any Certificate Outstanding at such effective date and presentation of his Certificate for the purpose at the office of the Trustee, a suitable notation shall be made on such Certificate. The Trustee may determine that the delivery of substitute Certificates, so modified as in the opinion of the Trustee is necessary to conform to such Certificate Owners' action, which substitute Certificates shall thereupon be prepared, executed and delivered. In that case, upon demand of the Owner of any Certificate then Outstanding, such substitute Certificate shall be exchanged at the principal corporate trust office of the Trustee in Los Angeles, California, without cost to such Owner, for a Certificate of the same character then Outstanding, upon surrender of such Outstanding Certificate. Section 10.06. Amendatory Endorsement of Certificates. The provisions of this Article X shall not prevent any Certificate Owner from accepting any amendment as to the particular Certificates held by him, provided that proper notation thereof is made on such Certificates. 33 ARTICLE XI COVENANTS; NOTICES Section 11.01. Compliance With and Enforcement of Installment Sale Agreement. The Agency covenants and agrees with the Owners of the Certificates to perform all obligations and duties imposed on it under the First Installment Sale Agreement and the Second Installment Sale Agreements. The Seller covenants and agrees with the Owners of the Certificates to perform all obligations and duties imposed on it under the First Installment Sale Agreement. Neither the Seller nor the Agency will do or permit anything to be done, or omit or refrain from doing anything, in any case where any such act done or permitted to be done, or any such omission of or refraining from action, would or might be a ground for cancellation or termination of the First Installment Sale Agreement or the Second Installment Sale Agreements by any party thereto. The Seller and the Agency, immediately upon receiving or giving any notice, communication or other document in any way relating to or affecting their respective estates, or either of them, in the Site, which may or can in any manner affect such estate of the Agency, will deliver the same, or a copy thereof, to the Trustee. Section 11.02. Observance of Laws and Regulations. The Agency will well and truly keep, observe and perform all valid and lawful obligations or regulations now or hereafter imposed on it by contract, or prescribed by any law of the United States, or of the State, or by any officer, board or commission having jurisdiction or control , as a condition of the continued enjoyment of any and every right, privilege or franchise now owned or hereafter acquired by the Agency, including its right to exist and carry on business as a municipal corporation, to the end that such rights, privileges and franchises shall be maintained and preserved, and shall not become abandoned, forfeited or in any manner impaired. Section 11.03. Recordation and Filing. The Agency hereby covenants that it shall record and file the Deeds of Trust and all such documents as may be required by law (and shall take any further actions which may be necessary or be reasonably required by the Trustee) , all in such manner, at such times and in such places as may be required by law in order fully to preserve, protect and perfect the security of the Trustee and the Certificate Owners. Section 11.04. Further Assurances. The Seller and the Agency will make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and the First Installment Sale Agreement, and for the better assuring and confirming unto the Owners of the Certificates the rights and benefits provided herein. 34 ARTICLE XII iLIMITATION OF LIABILITY Section 12.01 . Limited Liability of Agency. Except for the payment of Installment Payments and Prepayments when due in accordance with the First Installment Sale Agreement and the performance of the other covenants and agreements of the Agency contained in said Agreement, the Agency shall have no pecuniary obligation or liability to any of the other parties or to the Owners of the Certificates with respect to this Agreement or the terms, execution , delivery or transfer of the Certificates, or the distribution of Installment Payments to the Owners by the Trustee. Section 12.02. No Liability of the Seller for Trustee Performance. Neither the Agency nor the Seller shall have any obligation or liability to any of the other parties or to the Owners of the Certificates with respect to the performance by the Trustee of any duty imposed upon it under this Agreement. Section 12.03. Indemnification. The Agency agrees to require the Developers under the Second Installment Sale Agreements to indemnify and save the Trustee harmless from and against all claims, suits and actions brought against it, or to which it is made a party, and from all liability, losses and damages suffered by it as a result thereof, where and to the extent such claim, suit or action arises out of the actions of any other party to this Agreement including but not limited to the ownership, operation or use of the Project by the Developers. Such indemnification shall not extend to claims, suits and actions brought against the Trustee for failure to perform and carry out the duties specifically imposed upon and to be performed by it pursuant to this Agreement. In the event the Developers are required to indemnify the Trustee as herein provided, the Developers shall be subrogated to the rights of the Trustee to recover such losses or damages from any other person or entity. The Developers shall have the right to defend any such claim, suit or action and to select counsel of their own choice for such defenes, subject to the reasonable approval of the Trustee. The Agency and the Trustee each agree to provide notice of any such claim, suit or action within seven days after the Agency or the Trustee, as the case may be, shall receive actual knowledge thereof. The Trustee may retain its own counsel and the reasonable fees of such counsel shall be paid by the Developers except in those instances where it is found by a court of competent jurisdiction that the Trustee acted negligently or that its misconduct was willful , in which event such fees shall be paid by the Trustee. Section 12.04. Limitation of Rights to Parties and Certificate Owners. Nothing in this Agreement or in the Certificates expressed or implied is intended or shall be construed to give any person other than the Agency, the Seller, the Trustee, the Surety, the Owners of the Certificates and the Developers, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision hereof; and all such covenants, conditions and provisions are and shall be for the sole and exclusive benefit of the Agency, the Seller, the Trustee, the Surety, the Certificate Owners and the Developers. 35 ARTICLE XIII EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE OWNERS Section 13.01. Assignment of Rights. Pursuant to the First Assignment Agreement the Seller has transferred, assigned and set over to the Trustee all of the Seller' s rights in and to the First Installment Sale Agreement and all of the Seller' s rights as assignee of the Agency' s rights under the Second Assignment Agreement, including without limitation all of the Seller' s rights to exercise such rights and remedies conferred on the Seller pursuant to the First Installment Sale Agreement as may be necessary or convenient (i ) to enforce payment of the Installment Payments, Prepayments and any other amounts required to be deposited in the Installment Payment Fund or the Insurance and Condemnation Award Fund, (ii) to enforce payment of the Revenues and all other amounts required to be paid by the Developers under the Second Installment Sale Agreements, or (iii ) otherwise to exercise the Seller' s rights and take any action to protect the interests of the Trustee or the Certificate Owners in an Event of Default. Section 13.02. Events of Default Defined. The following events constitute "events of default" under the First Installment Sale Agreement: (a) Failure by the Agency to pay any Installment Payment or any other payment required to be paid or prepaid under the First Installment Sale Agreement when and as the same become due and payable. (b) Failure by the Agency to observe and perform any covenant, • condition or agreement on its part to be observed or performed under the First Installment Sale Agreement, other than as referred to in clause (a) of this Section, or the breach of any material warranty by the Agency therein if in the reasonable opinion of the Trustee such breach adversely affects the interests of the Certificate Owners, for a period of thirty (30) days after written notice specifying such failure or breach and requesting that it be remedied has been given to the Agency by the Trustee, the Surety or the Owners of at least twenty-five percent (25%) in aggregate principal amount of the Certificates then outstanding; provided, however, if the failure stated in the notice can be corrected, but not within the applicable period, such period shall be extended by the Trustee and the Surety if corrective action is promptly instituted by the Agency within the applicable period and diligently pursued until the default is corrected. (c) Failure by any party to this Agreement to observe and perform any material covenant, condition or agreement on its part to be observed or performed hereunder if in the reasonable opinion of the Trustee such breach adversely affects the interests of the Certificate Owners, other than as referred to in any other subsection of this Section 13.02, for a period of thirty (30) days after written notice specifying such failure or breach and requesting that it be remedied has been given to the defaulting party by any other party to this Agreement or by the Surety, unless the non-defaulting parties and the Surety shall agree in writing to an extension of such time prior to its expiration; provided, however, that if the failure stated in • 36 the notice can be corrected, but not within the applicable period, the non— defaulting parties and the Surety shall consent to an extension of such time if corrective action is instituted by the defaulting party within the applicable period and diligently pursued until the default is corrected. Section 13.03. Acceleration. Whenever any Event of Default referred to in subsection (a) of Section 13.02 hereof, or an event of default under and as defined in subsections (a) , (c) or (d) of Section 8.01 of any Second Installment Sale Agreement, shall have happened and be continuing, the Trustee as assignee of the Seller shall declare the principal components of all unpaid Installment Payments, together with any unpaid interest components theretofore having come due and payable, to be due and payable immediately (in the case of an Event of Default under subsection (a) of Section 13.02 hereof) or to be due and payable on the earlier of the next succeeding Interest Payment Date or twenty (20) days following such event of default (in the case of an event of default under subsections (a) , (c) or (d) of any of the Second Installment Sale Agreements) . Upon any such declaration the same shall become and shall be immediately due and payable, anything in this Trust Agreement to the contrary notwithstanding. Notwithstanding the provisions of the foregoing paragraph, however, the Trustee may only declare to be immediately due and payable that portion of the principal components of the unpaid Installment Payments equal to the aggregate principal components of the unpaid installment payments accelerated pursuant to the Second Installment Sale Agreements under which any event of default shall have occurred, together with any unpaid interest components thereof. In the event of acceleration of less than all of the Installment Payments, the Trustee shall select Certificates representing accelerated Installment Payments on a pro rata basis among maturities and by lot within a maturity. Upon any such declaration, the Trustee shall promptly mail to the Owners of all Outstanding Certificates representing accelerated Certificates, at their respective addresses appearing on the registration books of the Trustee, notice of such acceleration. Such notice shall identify the date upon which such acceleration becomes effective and shall state that interest represented by such Certificates shall cease to accrue from and after such date. The foregoing provisions are also subject to the condition that if, at any time after the principal of the Installment Payments shall have been so declared to or have so become due and payable because of an Event of Default under subsections (a) or (c) only of Section 13.02, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter provided, and before any proceeds have been paid under the Guaranty Agreement, the Surety Bond or the Insurance Policy, there shall have been deposited with the Trustee a sum sufficient to pay all principal components of the Installment Payments having come due and payable prior to such declaration and all interest components and the reasonable expenses of the Trustee, and any and all other defaults known to the Trustee (other than in the payment of principal and interest payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then , and in every such case, the Owners of at least a majority in aggregate principal amount of the Certificates then Outstanding, by written notice to the Trustee, the Surety and the Agency, may on behalf of the Owners of all the 37 Certificates rescind and annul such declaration and its consequences and waive such default; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Immediately upon becoming aware of the occurrence of an Event of Default, or of any event of default under any Second Installment Sale Agreement, the Trustee shall give notice thereof to the Agency, the Guarantor,' the Insurer and the Surety, and each defaulting Developer, by telephone confirmed in writing. Such notice shall also state whether the principal components of the Installment Payments shall have been declared to be due and payable and the effective date of such acceleration. Section 13.04. Application of Funds. The Trustee shall (a) deposit in the Installment Payment Fund all moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article XIII or Article IX of the First Installment Sale Agreement, other than pursuant to Section 13. 11, remaining after payment of the costs and expenses of the Trustee and of the Certificate Owners resulting in the collection of such moneys, and (b) deposit in the Installment Payment Fund all moneys derived by the Trustee pursuant to the Guaranty Agreement or the Surety Bond, except to the extent held in escrow pursuant to Section 13. 11. All moneys so deposited in the Installment Payment Fund shall be applied by the Trustee in the order following upon presentation of the Certificates, and the stamping thereon of the payment if only partially paid, or upon the surrender thereof if fully paid to the payment of the whole amount then owing and unpaid with respect to the Certificates for principal and interest, and in case such moneys shall be insufficient to pay in full the whole amount so owing and unpaid with respect to the Certificates, then to the payment of such principal and interest without preference or priority of principal over interest, or of interest over principal , or of any installment of interest over any other installment of interest, ratably to the aggregate of such principal and interest. Section 13.05. Institution of Legal Proceedings. If one or more Events of Default shall happen and be continuing, the Trustee in its discretion may, and upon the written request of the Owners of a majority in principal amount of the Certificates then Outstanding, and upon being indemnified to its satisfaction therefor, shall , proceed to protect or enforce its rights or the rights of the Owners of Certificates by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder. Section 13.06. Non-waiver. Nothing in this Article XIII or in any other provision of this Agreement or in the Certificates, shall affect or impair the obligation of the Agency, which is absolute and unconditional , to pay or prepay the Installment Payments from the Revenues as provided in the First Installment Sale Agreement, or affect or impair the right of action, which is also absolute and unconditional , of the Certificate Owners to institute suit to enforce and collect such payment. No delay or omission of the Trustee or of any Owner of any of the 38 Certificates to exercise any right or power arising upon the happening of any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein, and every power and remedy given by this Article XIII to the Trustee or to the Owners of Certificates may be exercised from time to time and as often as shall be deemed expedient by the Trustee or the Certificate Owners. Section 13.07. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Trustee or to the Certificate Owners is intended to be exclusive of any other remedy, and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise. Section 13.08. Power of Trustee to Control Proceedings. In the event that the Trustee, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of the Owners of at least twenty-five percent (25%) in aggregate principal amount of the Certificates then Outstanding, it shall have full power, in the exercise of its discretion for the best interests of the Owners of the Certificates, with respect to the continuance, discontinuance, withdrawal , compromise, settlement or other disposal of such action; provided, however, that the Trustee shall not discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, without the consent of a majority in principal amount of the Certificates Outstanding. Section 13.09. Limitation on Certificate Owners' Right to Sue. No Owner of any Certificate issued hereunder shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Agreement, unless (a) such Owner shall have previously given to the Trustee written notice of the occurrence of an Event of Default hereunder; (b) the Owners of at least twenty-five percent (25%) in aggregate principal amount of all the Certificates then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said Owners shall have tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Trustee shall have refused or omitted to comply with such request for a period of sixty (60) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Trustee. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Certificates of any remedy hereunder; it being understood and intended that no one or more Owners of Certificates shall have any right in any manner whatever by his or their action to enforce any right under this Agreement, except in the manner herein provided, and that all proceedings at law or in equity with respect to an Event of Default shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners of the Outstanding Certificates. • 39 The right of any Owner of any Certificate to receive payment of said Owner' s proportionate interest in the Installment Payments as the same become due, or to institute suit for the enforcement of such payment, shall not be impaired or affected without the consent of such Owner, notwithstanding the foregoing provisions of this Section or any other provision of this Agreement. Section 13. 10. Drawing on Guaranty Agreement and Surety Bond. Upon the occurrence and continuance of an event of default under and as defined in subsections (a) , (c) or (d) of Section 8.1 of any of the Second Installment Sale Agreements, the Trustee shall , whether or not any other proceedings have been instituted, immediately proceed under the Guaranty Agreement, in accordance with the terms of the Guaranty Agreement, to collect an amount equal to the sum of - (1) 100% of the principal amount of the Outstanding Certificates then due and payable or declared to become due and payable, including but not limited to all Outstanding Certificates accelerated or declared to be accelerated as a result thereof, plus (2) an amount equal to the aggregate principal amount of all Certificates of Participation (if any) theretofore paid from Revenues received by the Trustee with respect to any Second Installment Sale Agreement or the Guaranty Agreement less than 123 days prior to the date on which there shall have occurred an Event of Default described in subsection (c) of Section 13.02, plus (3) three hundred five (305) days' interest on all Outstanding Certificates (including but not limited to all Certificates described in clause (1) above) and on all Certificates described in clause (2) above. In the event that the Guarantor shall fail to pay in full such amount within the time permitted under the Guaranty Agreement, the Trustee shall , whether or not any other proceedings have been instituted, immediately proceed under the Surety Bond, in accordance with the terms thereof, to collect an amount equal to the sum of required to have been paid by the Guarantor under the Guaranty Agreement pursuant to this Section 13. 10. Section 13. 11. Application of Funds in Event of Bankruptcy Following Payment of Certificates. (a) Bankruptcy of Developers. Upon the occurrence of an event of default under and as defined in subsection (c) of Section 8. 1 of any Second Installment Sale Agreement, the Trustee shall immediately proceed to collect amounts under the Guaranty Agreement or the Surety Bond in accordance with Section 13. 10, and shall deposit in a special escrow account all amounts described in clause (2) of Section 13. 10 plus three hundred five (305) days' interest on the Certificates described in such clause (2) . (b) Bankruptcy of Guarantor. Notwithstanding the provisions of Section 13. 10, upon the occurrence of an event of default under and as defined in subsection (d) of Section 8. 1 of any Second Installment Sale Agreement, the Trustee shall not proceed to collect any amounts under any Guaranty Agreement, but shall 40 immediately proceed under the Surety Bond to collect the amounts described in . Section 13. 10, and shall deposit in a special escrow account all amounts described in clause (2) of Section 13. 10 plus three hundred five (305) days' interest on the Certificates described in such clause (2) . (c) Application of Special Escrow Account. All amounts deposited in the special escrow account pursuant to this Section 13.11 shall be retained therein by the Trustee pending a determination by a court of competent jurisdiction whether such amount is recoverable as a voidable transfer. In the event of a final and non- appealable determination by a court of competent jurisdiction that any portion of such amount is so recoverable, the Trustee shall promptly pay the moneys so held in escrow to or as directed by the court in which such proceeding is pending in exchange for a release of all further claims against the Trustee and Certificate Owners; and the Trustee shall pay any remaining balance in such escrow account to the Guarantor or the Surety, as the case may be. In the event of a final and non- appealable determination by a court of competent jurisdiction that no portion of such amount is so recoverable, or in the event of a final and non-appealable dismissal or termination of the proceedings in bankruptcy, the Trustee shall promptly pay all moneys in such escrow account to the Guarantor or the Surety, as the case may be. (d) Drawing on Guaranty Agreement and Surety Bond Upon Payment in Full . If, on or before the date which is one hundred forty (140) days following the date of payment or Prepayment in full of the Installment Payments, or upon the effective date of the security deposit provided for in Section 6. 1 of the First Installment Sale Agreement, the Trustee has not received evidence satisfactory to it that no event of default described in subsection (c) of Section 8.1 of each of the Second Installment Sale Agreements has occurred prior to or during the 123-day period following the date of such payment, Prepayment or provision for payment, the Trustee shall forthwith proceed under the Guaranty Agreement, in accordance with the terms thereof, to collect an amount equal to the aggregate principal amount of the Certificates paid or redeemed, or to be paid or redeemed, as a result of such payment or Prepayment in full of the Installment Payments or as a result of such security deposit, together with one hundred forty (140) days' interest accrued thereon, and shall deposit all amounts derived from the Guaranty Agreement in the Installment Payment Fund pending receipt of such evidence by the Trustee. In the event that the Guarantor shall fail to pay in full such amount within the time permitted under the Guaranty Agreement, the Trustee shall immediately proceed under the Surety Bond, in accordance with the terms thereof, to collect an amount equal to the amount required to have been paid under the Guaranty Agreement by the Guarantor in accordance with this Section 13. 11, and shall deposit all amounts derived from the Surety Bond in the Installment Payment Fund pending receipt of such evidence by the Trustee. If, on or before the date which is one hundred forty (140) days following the date of any receipt by the Trustee from the Guarantor of payment under the Guaranty Agreement resulting in payment or Prepayment in full of the Installment Payments, the Trustee has not received evidence satisfactory to it that no event of default described in subsection (d) of Section 8. 1 of a Second Installment Sale Agreement has occurred prior to or during the 123-day period following the date of such payment by the Guarantor, the Trustee shall forthwith proceed under the Surety 41 Bond, in accordance with the terms thereof, to collect an amount equal to the . aggregate principal amount of such payments under the Guaranty Agreement, together with two hundred eighty (280) days' interest accrued thereon, and shall deposit all amounts derived from the Surety Bond in the Installment Payment Fund pending receipt of such evidence by the Trustee. Section 13. 12. Insurance Policy. Upon the occurrence of an Event of Default described in Section 13.02(a) , the Trustee shall promptly take all steps required to realize payment under the Insurance Policy of the full amount of principal and interest then due and payable with respect to the Certificates, notwithstanding that the Trustee shall also have instituted proceedings to realize amounts under the Guaranty Agreement or the Surety Bond. In order to ensure timely payment of principal and interest with respect to the Certificates in accordance with the provisions of the Insurance Policy, the Trustee shall notify the Insurer, no later than 5:00 o'clock P.M. Pacific Time on the day which is five (5) calendar days before each Interest Payment Date, by telephonic or telegraphic notice to be confirmed in writing by registered or certified mail , if the Trustee does not then have on deposit in the Installment Payment Fund an amount sufficient to pay the principal and interest with respect to the Certificates coming due and payable on such Interest Payment Date. Section 13. 13. Assignment to Surety. In the event of any draw upon the Surety Bond in accordance with this Article XIII resulting from an event of default by a Developer under a Second Installment Sale Agreement, the Trustee shall assign all right, title and interest of the Trustee in and to the Deed of Trust with respect to which such Developer is the trustor, (1) to the Guarantor upon payment by the Guarantor of all amounts then due and payable under the Guaranty Agreement, or (2) to the Surety upon payment by the Surety of all amounts then due and payable under the Surety Bond. Section 13. 14. Notification to S&P. In the event that the Surety Bond shall be terminated or shall expire for any reason whatsoever, the Trustee shall promptly notify S&P of such fact. Section 13.15. Liability Limited to Revenues. As provided in Section 4.4 of the First Installment Sale Agreement, the Agency' s obligation to pay Installment Payments shall be a special obligation limited solely to the Revenues. Under no circumstances shall the Agency be required to advance any moneys derived from any source of income other than the Revenues for the payment of any of the Agency' s obligations under the First Installment Sale Agreement nor shall any other funds or property of the Agency be liable in any manner whatsoever for the payment of the Installment Payments. Section 13. 16. Notice to Developer of Failure to Make Payment. In the event that, as of the close of business on the first Business Day preceding the date on which any payment is due from a Developer under Section 4.3(a) of a Second Installment Sale Agreement, the Trustee shall not have received payment from such Developer of any amount payable by the Developer on such payment date, the Trustee shall notify the Developer of such fact on such payment date. • 42 ARTICLE XIV MISCELLANEOUS Section 14.01. Defeasance. If and when all Outstanding Certificates shall be paid and discharged in any one or more of the following ways: (a) by well and truly paying or causing to be paid the principal of and interest and redemption premiums (if any) with respect to all Certificates Outstanding, as and when the same become due and payable; (b) by depositing with the Trustee, in trust, at or before maturity, money which, together with the amounts then on deposit in the Installment Payment Fund, the Insurance and Condemnation Fund, and the Reserve Fund, is fully sufficient to pay all Certificates Outstanding, including all principal and interest and premium, if any; (c) by depositing with the Trustee, in trust, Federal Securities in such amount as the Trustee shall in its reasonable judgment determine will , together with the interest to accrue thereon and moneys then on deposit in the Installment Payment Fund, the Insurance and Condemnation Fund and the Reserve Fund together with the interest to accrue thereon, be fully sufficient to pay and discharge all Certificates (including all principal , interest and redemption premiums) at or before their respective maturity dates; or (d) by depositing with the Trustee, under an escrow deposit and trust • agreement, security for the payment of Installment Payments as more particularly described in Section 10. 1 of the First Installment Sale Agreement, said security to be held by the Trustee as agent for the Agency to be applied by the Trustee to pay the Installment Payments as the same become due and payable and make a Prepayment in full on any Prepayment date, pursuant to Section 10. 1 of the First Installment Sale Agreement - notwithstanding that any Certificates shall not have been surrendered for payment, then on the date which is two days thereafter all obligations of the Seller, the Trustee and the Agency with respect to all Outstanding Certificates shall cease and terminate and this Trust Agreement shall be discharged, except only the obligation of the Trustee to pay or cause to be paid, from Installment Payments paid by or on behalf of the Agency from funds deposited pursuant to paragraphs (b) through (d) of this Section, to the Owners of the Certificates not so surrendered and paid all sums due with respect thereto, and in the event of deposits pursuant to paragraphs (b) through (d) , the Certificates shall continue to represent direct and proportionate interests of the Owners thereof in Installment Payments under the First Installment Sale Agreement. Any funds held by the Trustee, at the time of one of the events described in paragraphs (a) through (d) of this Section, which are not required for the payment to be made to Owners, shall be paid over to the Agency. 43 Section 14.02. Notices. All written notices to be given under this . Agreement shall be given by mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to time. Notice shall be effective upon deposit in the United States mail , postage prepaid or, in the case of personal delivery, upon delivery to the address set forth below: If to the Agency: Community Redevelopment Agency of the City of Palm Springs 3200 East Tahquitz—McCallum Way Palm Springs, California 92262 If to the Seller: Desert Fashion Plaza, Inc. 7620 Market Street Youngstown, Ohio 44512 Attention: General Counsel If to the Trustee: Security Pacific National Bank 333 South Hope Street Los Angeles, California 90071 Attention: Corporate Trust Department If to the Surety: Industrial Indemnity Company 255 California Street San Francisco, California 94111 Attention: Corporate Secretary If to the Developers: At the respective addresses and with the respective copies set forth in Section 10. 1 of each of the Second Installment Sale Agreements Section 14.03. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State. Section 14.04. Binding Effect; Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Whenever in this Agreement either the Seller, the Developers, the Agency or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Agreement contained by or on behalf of the Seller, the Agency or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. Section 14.05. Payment on Business Day. In the event that any payment shall be required to be made hereunder on a day which is not a Business Day, such payment shall become due and payable on the immediately preceding Business Day. Section 14.06. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 44 Section 14.07. Destruction of Cancelled Certificates. Whenever in this Agreement provision is made for the surrender to or cancellation by the Trustee and the delivery to the Agency of any Certificates, the Trustee may, upon the request of the Agency Representative, in lieu of such cancellation and delivery, destroy such Certificates and deliver a certificate of such destruction to the Agency. Section 14.08. Headings. The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Agreement. All references herein to "Articles" , "Sections" , and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Agreement; and the words "herein", "hereof" , "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision hereof. Section 14.09. Waiver of Notice. Whenever in this Agreement the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 14. 10. Separability of Invalid Provisions. In case any one or more of the provisions contained in this Agreement or in the Certificates shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The parties hereto hereby declare that they would have entered into this Agreement and each and every other section, paragraph, sentence, clause or phrase hereof and authorized the delivery of the Certificates pursuant thereto irrespective of the fact that any one or more sections, paragraphs, sentences, clauses or phrases of this Agreement may be held illegal , invalid or unenforceable. 45 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. • SECURITY PACIFIC NATIONAL BANK, as Trustee BY e: GYN-1"Fi„`, :;. Assistant Vice f7 iden't COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By (S E A L) Chairman Attest: Secretary DESERZF PLAZA, INC.By L7 - Richard S . Sokolov, Vice President AtL.Llr WorileyjirSecretary 46 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. SECURITY PACIFIC NATIONAL BANK, as Trustee By Title: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By (S E A L) Chai an Attest: Secretary DESERT FASHION PLAZA, INC. ' By Title: 46 EXHIBIT A (FORM OF CERTIFICATE OF PARTICIPATION) CERTIFICATE OF PARTICIPATION Evidencing the Proportionate Interest of the Owner Hereof in Installment Payments To Be Made By The COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS As the Purchase Price of Certain Property Acquired From Desert Fashion Plaza, Inc. Pursuant to a First Installment Sale Agreement $ No. R— THIS IS TO CERTIFY THAT or registered assigns, as the registered owner of this Certificate of Participation (the "Certificate") is the owner of a proportionate interest in the right to receive certain Installment Payments and prepayments thereof under and defined in that certain First Installment Sale Agreement (the "First Installment Sale Agreement") dated as of September 1 , 1984, by and between the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic, organized and existing under and by virtue of the laws of the State of California (the "Agency") and Desert Fashion Plaza, Inc. , a corporation duly organized and existing under the laws of the State of Ohio (the "Seller") , which Installment Payments and prepayments and certain other rights and interests under the First Installment Sale Agreement have been assigned to Security Pacific National Bank, as trustee (the "Trustee") , having a principal corporate trust office in Los Angeles, California (the "Principal Office") . The registered owner of this Certificate is entitled to receive, subject to the terms of the First Installment Sale Agreement, on September 1 , _, upon presentation and surrender of this Certificate at the Principal Office of the Trustee, the principal amount of Dollars ($ ) , representing a portion of the Installment Payments designated as principal coming due during the preceding twelve months, and to receive on March 1, 1985, and semiannually thereafter on March 1 and September 1 of each year (the "Payment Dates") until payment in full of said portion of principal , the registered owner' s proportionate share of the Installment Payments designated as interest coming due during the six months immediately preceding each of the Payment Dates; provided that interest with respect hereto shall be payable from the interest payment date next preceding the date of execution of this Certificate (unless (i) this Certificate is executed on a Payment Date, in which event interest shall be 47 payable from such Payment Date, or (ii ) this Certificate is executed after the close of business on the fifteenth day of the month prior to any Payment Date, in which event interest shall be payable from such Payment Date, or (iii ) unless this Certificate is executed prior to February 15, 1985, in which event interest shall be payable from September 1, 1984) . Said proportionate share of the portion of the Installment Payments designated as interest is the result of the multiplication of the aforesaid portion of the Installment Payments designated as principal by the rate of percent ( %) per annum. Said amounts representing interest are payable in lawful money of the United States of America by check or draft mailed by the Trustee to the registered owner hereof at his address as it appears on the registration books of the Trustee or at such other address as he may have filed with the Trustee for that purpose. This Certificate has been executed and delivered by the Trustee pursuant to the terms of a Trust Agreement by and among the Trustee, the Seller and the Agency, dated as of September 1, 1984 (the "Trust Agreement") . The Agency is authorized to enter into the First Installment Sale Agreement and the Trust Agreement under the laws of the State of California. Reference is hereby made to the First Installment Sale Agreement and the Trust Agreement (copies of which are on file at the Principal Office of the Trustee) for a description of the terms on which the Certificates are delivered, the rights thereunder of the registered owners of the Certificates, the rights, duties and immunities of the Trustee and the rights and obligations of the Agency under the First Installment Sale Agreement, to all of the provisions of which First Installment Sale Agreement and Trust Agreement the registered owner of this Certificate, by acceptance hereof, assents and agrees. The Installment Payments are payable by the Agency from the Revenues derived with respect to the installment sale of the Project and the Site (as such terms are defined in the First Installment Sale Agreement) by the Agency to North Plaza Associates, South Plaza Associates and Pratt/North Plaza Associates, each of which is a general partnership organized under the laws of the State of California (collectively, the "Developers") , pursuant to those respective Second Installment Sale Agreements each of which is dated as of September 1, 1984 (collectively, the "Second Installment Sale Agreements"). Amounts payable by the Developers under the Second Installment Sale Agreements are guaranteed by The Edward J. DeBartolo Corporation, a corporation organized under the laws of the State of Ohio, (the "Guarantor") pursuant to a Guaranty Agreement dated as of September 1, 1984, by and between the Guarantor and the Trustee (the "Guaranty Agreement") , which Guaranty Agreement is accompanied by a surety bond issued by Industrial Indemnity Company, a corporation organized under the laws of the State of California, guaranteeing the performance by the Guarantor of its obligations under the Guaranty Agreement. The obligation of the Agency to pay Installment Payments does not constitute a debt of the Agency, the Agency of Palm Springs, the State of California or any political subdivision thereof, and does not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. To the extent and in the manner permitted by the terms of the Trust Agreement, the provisions of the Trust Agreement may be amended by the parties thereto with the written consent of the owners of at least sixty percent (60%) in aggregate principal amount of the Certificates then outstanding, and may be amended without such consent under certain circumstances but in no event such that the 48 interests of the owners of the Certificates are adversely affected, provided that • no such amendment shall impair the right of any owner to receive in any case such owner' s proportionate share of any Installment Payment or prepayment thereof in accordance with such owner' s Certificate. This Certificate is transferable by the registered owner hereof, in person or by his attorney duly authorized in writing, at the Principal Office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Trust Agreement and upon surrender and cancellation of this Certificate. Upon such transfer a new Certificate or Certificates, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be delivered to the transferee in exchange herefor. The Agency, the Seller and the Trustee may treat the registered owner hereof as the absolute owner hereof for all purposes, whether or not this Certificate shall be overdue, and the Agency, the Seller and the Trustee shall not be affected by any notice to the contrary. This Certificate is transferable by the owner hereof, in person or by his attorney duly authorized in writing, but only in the manner provided in the Trust Agreement. Certificates maturing on or after September 1, 1992, are subject to redemption in whole or in part, from prepayments of the Installment Payments made pursuant to Section 6.2 of the First Installment Sale Agreement, on September 1 , 1991, or on any Interest Payment Date thereafter, at a redemption price equal to the principal amount thereof plus a premium (expressed as percentages of the principal amount of Certificates or portions thereof to be redeemed) set forth in the following table, together with accrued interest to the date fixed for redemption: Redemption Dates Premium September 1, 1991 and March 1, 1992 3% September 1, 1992 and March 1, 1993 2% September 1, 1993 and March 1, 1994 1% September 1, 1994 and thereafter 0 The Certificates are also subject to redemption on any Payment Date on or after March 1, 1985, in whole or in part, from the net proceeds of insurance or condemnation of the Project and the Site credited towards the prepayment of the Installment Payments made by the Agency pursuant to Section 6.3 of the First Installment Sale Agreement, at a redemption price equal to the principal amount thereof, together with accrued interest to the date fixed for redemption, without premium. The Certificates shall also be subject to redemption on September 1 , 1987, in whole or in part, from excess construction fund moneys credited towards the prepayment of the Installment Payments made by the Agency pursuant to Section 6.4 of the First Installment Sale Agreement, at a redemption price equal to the principal amount thereof to be redeemed together with accrued interest thereon to the redemption date, without premium. 49 As provided in the Trust Agreement, notice of redemption of this Certificate shall be mailed, not less than twenty-five nor more than sixty days before the redemption date, to the registered owner of this Certificate, but neither failure to receive such notice nor any immaterial defect in the notice so mailed shall affect the sufficiency of the proceedings for redemption. If this Certificate is called for redemption and payment is duly provided therefor as specified in the Trust Agreement, interest shall cease to accrue with respect hereto from and after the date fixed for redemption. IN WITNESS WHEREOF, this Certificate has been executed and delivered by Security Pacific National Bank, as Trustee, acting pursuant to the Trust Agreement. Registration Date: SECURITY PACIFIC NATIONAL BANK, as Trustee By Authorized Officer (FORM OF ASSIGNMENT) For value received the undersigned do(es) hereby sell , assign and transfer unto the within-mentioned Certificate and hereby irrevocably constitute(s) and appoint(s) attorney, to transfer the same on the books of the Trustee with full power of substitution in the premises. Dated: Note: The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Certificate in every particular, without alteration or enlargement or any change whatsoever. 50 SECURITY PACIFIC NATIONAL BANK SCHEDULE OF FEES FOR ACTING AS TRUSTEE, REGISTRAR, AND PAYING AGENT CERTIFICATE OF PARTICIPATION ISs'JE CITY OF PALM SPRINGS PARKING FACILITY • klZ3 MILLION ACCEPTANCE FEE ESTIMATED FEE (1) (An initial non-recurring charge that covers review of related documents and liaison with issuer, underwriters , and attorneys. ) 3.82 Basis Points , ( .0382%) , or $ 8,786.00 ANNUAL ADMINISTRATION FEE (Covers normal trustee duties. ) First year, 2.96 Basis Points, ( .0296 ) , or $ 6,803.00 Total Amount Due at the Close: $15,594.00 Second and subsequent years, 2.96 Basis Points, ( .0296%) , or $ 6,808.00 (Minimum: $2,500) PAYING AGENT SERVICES Payment of Interest Per check issued $ .50 Payment of Principal Per bond maturing or redeemed $ 2.75 REGISTRATION SERVICES Initial issuance, per bond $ 1.50 Thereafter, per bond registered 2.00 (Includes cancellation and postdown) Per bondholder account maintained per month .25 OUT-OF-POCKET EXPENSES At Cost NOTE: We do not contemplate retaining outside counsel for purposes of initial document review and the closing; hence, there would be no additional charge passed along to you as an out-of-pocket expense. However, please note that it is essential that we have draft documents at least three weeks before the mailing of the 0/S or the close, whichever is controlling, for Bank counsel to review. If Bank counsel is required to review documents with less than three weeks time, there may be an additional charge. (1) Based upon the par value of bonds outstanding at the time of computation. July 25, 1984 4�yh�b�f ,� TEc'll/wpl-9/14/84 ; 9/17/84/1 RECORDING REQUESTED BY: When Recorded Return To: Jones , Hall, Hill & White A Professional Law Corporation Four Embarcadero Center San Francisco, California 94111 Attention: Chares F . Adams , Esq. DEED OF TRUST THIS DEED OF TRUST (hereinafter referred to as the "Deed of Trust" ) , made as of September 1 , 1984, by and between NORTH PLAZA ASSOCIATES , a California general partnership, whose address is 7620 Market Street, Youngstown, Ohio 44512, Attention: General Counsel , (hereinafter referred to as "Trustor" ) , TRANSAMERICA TITLE INSURANCE COMPANY (hereinafter referred to as "Trustee" ) and SECURITY PACIFIC NATIONAL BANK , a California corporation, as trustee, whose address is 333 South Hope Street , Los Angeles , California 90071 , Attention: Corporate Trust Department (hereinafter, together with its successors and assigns , referred to as the "Beneficiary" ) ; That for good and valuable consideration , including , without limitation , the benefit of certain proceeds to be disbursed by the Beneficiary pursuant to the "Trust Agreement" described below, and to secure ( i ) payment of the purchase price , together with interest thereon, payable to the Community Redevelopment Agency of the City of Palm Springs (the "Agency" ) , as seller, by the Trustor, as purchaser, pursuant to the Second Installment Sale Agreement by and between the Agency and the Trustor of even date herewith (the "Second Installment Sale Agreement" ) , the rights in which have been assigned to Desert Fashion Plaza , Inc. , an Ohio corporation ( the "Seller" ) pursuant to that certain Second Assignment Agreement from the Agency to the Seller of even date herewith (the "Second Assignment" ) , and which have been further assigned by the Seller to the Beneficiary, as trustee for the benefit of the owners of the *23 , 250 , 000 principal amount of Certificiates of Participation (the "Certificates" ) executed and delivered pursuant to the Trust Agreement of even date herewith ( "Trust Agreement" ) by and among the Beneficiary, the Agency and the Seller, pursuant to the First Assignment, ( ii ) any other indebtedness by the Trustor to the Trustee or the Beneficiary arising under the terms hereof , the Second Assignment or in any other instrument constituting additional security for the -1- aforementioned obligations , ( iii ) every obligation contained in this Deed of Trust , in any agreement modifying this Deed of Trust , and in any other instrument now or hereafter securing any indebtedness secured by this Deed of Trust, ( iv ) performance of all obligations of the Trustor under the Second Installment Sale Agreement and the Second Assignment _ as all of the above may hereafter be modified and as the rate of interest on any payments shall be adjusted as set forth in the foregoing documents , the Trustor does hereby irrevocably grant, bargain, sell , and convey unto the Trustee, in trust , with power of sale , the property described in Exhibit A attached hereto and made a part' hereof , which , together with the Trustor ' s interest in ,the buildings and improvements now or hereinafter to be constructed thereon, is referred to herein as the "Premises" ; TOGETHER WITH : ( a ) All buildings and improvements of Trustor, now or hereafter located on the land described in Exhibit A hereto, all privileges and other rights now or hereafter made appurtenant thereto including , without limitation, all right, title and interest of the Trustor in and to all streets , roads and public places , opened or proposed and all easements and rights of way, public or private, now or hereafter used in connection with the Premises ; and (b ) All judgments, awards of damages and settlements hereafter made as a result of or in lieu of any taking of the Premises or any part thereof or interest therein under the power of eminent domain, or for any damage (whether caused by such taking or otherwise ) to the Premises or the improvements thereon or any part thereof or interest therein, including any award for change of grade of streets ; subject , however , to the obligation of the Beneficiary to make such proceeds available to Trustor for the purposes set forth in Article VII of the Trust Agreement ; and (c) All proceeds of the conversion, voluntary or involuntary or any of the foregoing into cash or liquidated claims ; and (d ) All interest and right of the Trustor in, to and under the Second Installment Sale Agreement. TO HAVE AND TO HOLD UPON THE FOLLOWING EXPRESS TRUSTS : PROVIDED, HOWEVER, that if the Trustor shall fully pay or cause to be paid to the Beneficiary the principal and interest with respect to the Second Installment Sale -2- Agreement, and any prepayment , premium and late charges, if any , to become due thereupon at the time and in the manner stipulated therein, and shall pay or cause to be paid all other sums payable hereunder and all indebtedness hereby secured, and shall keep and perform or cause to be kept and -_ performed all and singular the covenants contained herein and in the Second Installment Sale Agreement and the Second Assignment then, in such case , the estate , right , title and interest of the Beneficiary in the Premises shall cease , determine and become void and upon proof being given to the satisfaction of the Beneficiary that all such payments have been paid or satisfied , and upon payment of all amounts payable under all of such documents , and upon payment of all fees , costs, charges , expenses and liabilities chargeable or incurred or to be incurred by the Beneficiary , and of any other sums as herein provided , the Beneficiary shall, upon receipt of the written request of the Trustor , cause this Deed of Trust to be cancelled , released and discharged and marked satisfied of record and shall cause the Trustee to reconvey the Premises and every interest of the Trustee therein unto the Trustor. ARTICLE I TRUSTOR' S COVENANTS The Trustor covenants and agrees with the Trustee and the Beneficiary that : 1 .01 Title . The Trustor warrants that it has good and marketable title to (a ) an indefeasible fee simple estate in the real estate described part I of Exhibit A, and (b ) a leasehold estate in the real estate described in part II of Exhibit A, which , in either case, is subject to no liens , charges or encumbrances (other than Permitted Encumbrances as defined herein or in the Trust Agreement, including but not limited to Permitted Encumbrances to which this Deed of Trust may be subordinated pursuant to Section 1 . 20 ) ; that the Trustor has full power and authority to grant, bargain, sell and convey the Premises in the manner and torm herein done or intended hereafter to be done; that this Deed of Trust is and shall remain a valid and enforceable lien on the Premises subject only such Permitted Encumbrances ; that the Trustor and its successors and assigns shall warrant and defend the same forever against the lawful claims and demands of all persons whomsoever, and that this covenant shall not be extinguished by any exercise of power of sale , foreclosure or sale hereof but shall run with the land. The Trustor shall, at the cost of the Trustor, and • without expense to the Beneficiary do, execute, acknowledge and deliver all and every such further acts , deeds , conveyances , deeds of trust , assignments , notices of assignments , transfers and assurances as shall be reasonably necessary for the assuring , conveying , assigning , transferrring and confirming unto the Trustee or the Beneficiary the property and rights hereby conveyed or assigned or intended now or hereafter so to be , or which the Trustor may be or may hereafter become bound to convey or assign to the Trustee or the Beneficiary, or for carrying out the intention of facilitating the performance of the terms of this Deed of Trust provided that •the same do not increase the substantive obligations of Trustor, in any material respect from those obligations set forth in the Second Installment Sale Agreement or this Deed of Trust , or for filing , registering or recording this Deed of Trust. The Trustor, forthwith upon the execution and delivery of this Deed of Trust shall cause this Deed of Trust to be recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the interest of the Trustee or the Beneficiary in , the Premises . The Trustor shall pay all filing , registration or recording fees , and all expenses incident to the preparation, execution and acknowledgment of this Deed of Trust , any deed of trust supplemental hereto, and any instrument of further assurance , and all federal , state , county and municipal stamp taxes and other taxes , duties , imposts , assessments and charges arising out of or in connection with the execution and delivery of the Second Installment Sale Agreement, this Deed of Trust, any deed of trust supplemental hereto, or any instrument of further assurance. The Trustor, and each of its general partners and general partners of general partners , if any, if any be a corporation, partnership, limited partnership, or other legal entity shall, so long as it is owner of the Premises or of an interest in the Trustor or a general partner of the Trustor, do all things necessary to preserve and keep in full force and effect its existence, franchises , rights and privileges as a legal entity under the laws of the state of its formation and shall comply with all regulations , rules , ordinances , statutes, orders and decrees of any governmental authority or court applicable to such entity or to the Premises or any part thereof. 1 .02 Payment of Indebtedness . The Trustor shall promptly and punctually pay all principal and interest, prepayment premium, and all other sums to become due in respect of the Second Installment Sale Agreement and any other indebtedness hereby secured , according to the true • intent and meaning thereof . -4- 1 .03 Casualty . The Trustor shall promptly notify the Beneficiary and the Surety of any loss whether covered by insurance or not . The Net Proceeds of such insurance shall be paid to the Beneficiary deposited in the Insurance and Condemnation Fund established under the Trust Agreement and applied pursuant to and in accordance with Article VII of the Trust Agreement . 1.04 Condemnation . The Trustor, immediately upon obtaining knowledge of the institution of any proceeding for the condemnation of the Premises or any portion thereof , shall notify the Beneficiary and the Surety of the pendency thereof . The Trustor hereby assigns , transfers and sets over unto the Beneficiary all compensation, rights of action, the entire proceeds of any award and any claim for damages for any of the Premises taken or damaged under the power of eminent domain or by condemnation or by sale in lieu thereof which proceeds shall be deposited by the Beneficiary in the Insurance and Condemnation Fund established under the Trust Agreement and applied pursuant to and in accordance with Article VII of the Trust Agreement. The Trustor agrees to execute such further assignments of any compensation, award, damages , right of action and proceeds , as the Beneficiary may reasonably require . 1 .05 Liens and Encumbrances . The Trustor shall pay when due all lawful obligations , claims or demands of any person which , if unpaid , might result in, or permit the creation of , a lien or encumbrance on the Premises or on the rents , issues , income and profits arising therefrom, whether such lien would be senior or subordinate hereto , including , but without limiting the generality of the foregoing , all rightful claims of mechanics , materialmen, laborers and others for work or labor performed , or materials or supplies furnished in connection with any work of demolition , alteration, improvement of or construction upon the Premises . The Trustor reserves the right to contest the validity of any such lien or claim, provided that Trustor shall post a Statutory Lien Release Bond as provided by law. 1 .06 Taxes and Assessments . The Trustor will pay or cause to be paid, as the same respectively become due , all taxes and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Premises or any modification, improvement or addition to the Premises or any interest therein ( including the Beneficiary 's interest) or the rentals and revenues derived therefrom or hereunder; and all assessments and charges lawfully made by any governmental body for public improvements that may be secured by a lien on the Premises; provided that with respect to special assessments or other • -5- governmental charges that may lawfully be paid in installments over a period of years , the Trustor shall be obligated to pay only such installments as are required to be paid during the term of this Deed of Trust. The Trustor may , at its expense and in its good name, in good faith contest any such taxes , assessments and other charges and, in the event of any such contest, may permit the taxes , assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom. In the event that the Trustor shall fail to pay any of the foregoing items-required by this paragraph 1 .06 to be paid by the Trustor, the Agency, the Beneficiary or the Surety , after ten ( 10 ) days prior written notice to Trustor, may (but shall be under no obligation to) pay the same and any amounts so advanced therefor by the Agency , the Beneficiary or the Surety shall become an additional obligation of the Trustor to the party making the advancement , which amounts , together with interest thereon at the respective rates borne by the outstanding Certificates, the Trustor agrees to pay. 1 .07 Sale of Premises . The Trustor agrees that the Premises or any part thereof or interest therein may be sold, assigned , transferred , further encumbered, conveyed or otherwise alienated by the Trustor pursuant to and in accordance with the provisions of the Second Installment Sale Agreement and other applicable provisions of this Deed of Trust. No change in ownership or transfer of any interest in the Premises , no forbearance on the part of the Beneficiary or the Surety, no extension of the time for the payment of the Deed of Trust indebtedness or any change in the terms thereof consented to by the Beneficiary or the Surety shall in any way whatsoever operate to release , discharge , modify, change or affect the original liability of the Trustor herein, either in whole or in part , except as provided in the Second Installment Sale Agreement or this Deed of Trust. Any deed conveying the Premises , or any part thereof , shall provide that the grantee thereunder assumes and agrees to pay all of the grantor' s obligations hereunder or hereby secured and all other instruments or agreements evidencing or securing the repayment of the Deed of Trust indebtedness subject to the terms and conditions of this Deed. of Trust. In the event any deed of transferring ownership of or an interest in the Premises shall not contain such assumption and agreement to pay , the grantee under such deed shall nevertheless be conclusively deemed to have assumed and agreed to pay such obligations by acquiring the Premises or such portion thereof subject to this Deed of Trust. 1 .08 Estoppel Certificates . The Trustor and the Beneficiary, as the case may be , within ten ( 10 ) days after -6- written request , shall furnish a duly acknowledged written statement setting forth the amount of the debt secured by this Deed of Trust, and stating either that no setoffs or defenses exist against the Deed of Trust debt , or, if such setoffs or defenses are alleged to exist , the nature thereof . 1 .09 Future Liens . The Beneficiary and the Trustee acknowledges that the Premises are part of the renovation and expansion of the Desert Fashion Plaza Shopping Center (the "Development" ) and that in order to facilitate the conststruction and operation of the Development , the Trustor , South Plaza Associates and Pratt/North Plaza Associates will , from time to time , execute and deliver deeds of trust , mortgages , financing statements, easements , leases , assignments of rents and assignments of leases (hereinafter collectively referrea to as "Encumbrances" ) each of which may create legal and beneticial interests in the Premises covered by this Deed of Trust. It is the intention of the Trustor, Trustee , the Beneficiary, and the Surety that this Deed of Trust shall be subordinate to all such Encumbrances , whether now or hereafter created . Without limitation of the foregoing , such parties specifically agree that this Deed of Trust shall be , without further act by the Trustee, the Beneficiary, or the Surety, subordinate to: (a ) any deed of trust and related instruments securing a construction loan to the Developer by Goldome Realty Credit Corporation or an affiliate thereof ; (b) any lease by the Trustor to Federated Department Stores , Inc. , or an affiliate thereof ; (c) any lease by the Trustor to Saks & Company or an affiliate thereof ; (d) the Easement and Operating Agreement to be entered into by and between Trustor, Pratt/North Plaza Associates and South Plaza Associates . The Trustee and the Beneficiary agree to execute and deliver such subordination and nondisturbance agreements as the Trustor may reasonably request in conjunction with the foregoing Encumbrances and such other Encumbrances as may be created from time to time in conjunction with the Development within ten ( 10 ) days after receipt of written request therefor. If the Trustee or Beneficiary shall fail to comply with this requirement within the time permitted therefor, the Trustor shall be authorized to execute such instruments in the name of the Trustee or Beneficiary , as the case may be , and the Trustee and Beneficiary each appoint Trustor as their • attorney in fact for such purpose . -7- . ARTICLE II DEFAULT It is mutually agreed that: 2 .01 Events of Default . Any event of default under and as defined in the Second Installment Sale Agreement which Trustor shall have failed to cure within the time permitted therefor shall be deemed to be and shall constitute an event of default under this •Deed of Trust (an "Event of Default" ) . 2 .02 Remedies . ( a) Upon and after such Event of Default , the Beneficiary without further demand on the Trustor may, ( i ) institute proceedings for the complete or partial foreclosure of this Deed of Trust; or ( ii ) apply to any court or competent jurisdiction for the appointment of a receiver or receivers for the Premises and of all the earnings , revenues , rents, issues , profits and income thereof ; ( iii ) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant , condition or agreement in the Second Installment Sale Agreement , or in aid of the execution of any power herein granted , or for any foreclosure hereunder , or for the enforcement of any other appropriate legal or equitable remedy or otherwise as the Beneficiary shall elect. (b) The Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale , and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement; and, except as otherwise provided by any applicable provision of law , the Trustee, without further notice or publication, may make such sale at the time and place to which the same shall be so postponed. (c) Upon the completion of any sale or sales made by the Trustee under or by virtue of this Section, the Trustee shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments , conveying , assigning and transferring • all estate, right, title and interest in and to the property -8- and rights sold, but without any covenant or warranty, • express or implied . The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof . Any such sale or sales made under or by virtue of this Section under the power of sale herein granted shall operate to divest all the estate, right , title, interest, claim and demand whatsoever, whether at law or in equity, of the Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law or in equity against the Trustor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under the Trustor . (d) The purchase money, proceeds or avails of any sale made upon or by virtue of this Section , together with any other sums which then may be held by the Trustee or the Beneficiary under this Deed of Trust whether under the provisions of this Section or otherwise, shall be applied as follows: FIRST: To the payment of the costs and expenses of such sale, including reasonable compensation to the Trustee, its agents and counsel, and of any judicial proceedings wherein the same may be made , and of all expenses , liabilities and advances made or incurred by the Trustee or the Beneficiary under this Deed of Trust and all • taxes or assessments , except any taxes , assessments or other charges subject to which the Premises shall have been sold. SECOND: To the payment of the whole amount then due , owing or unpaid with respect to the Second Installment Sale Agreement for principal interest, prepayment premiums and late charges as stated in the Second Installment Sale Agreement. THIRD: To the payment of any other sums required to be paid by the Trustor pursuant to any provisions of this Deed of Trust or of the Second Installment Sale Agreement. FOURTH: To the payment of the surplus , if any, to whomsoever may be lawfully entitled to receive the same. (e) Upon any sale made upon the power of sale granted under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Premises or any part thereof and in lieu of paying cash therefor may offset the bid(s ) to the extent of the total amount due hereunder including the Trustee' s fees and expenses . The Beneficiary upon so -9- acquiring the Premises , or any part thereof shall be entitled to hold, lease, rent, operate, manage and sell the same in any manner provided by applicable laws . (f) No remedy herein conferred upon or reserved to the Trustee or the Beneficiary is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this instrument to the Trustee or the Beneficiary, or to which either of them may be otherwise entitled, may be exercised from time to time and as often as may be deemed expedient by the Trustee or the Beneficiary, and either of them may pursue inconsistent remedies . If there exists additional security for the performance of the obligations secured hereby, the Beneficiary, at its sole option and without limiting or affecting any rights or remedies hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder either concurrently with whatever other rights it may have in connection with such other security or in such order as it may determine. 2. 03 Limitation on Trustor ' s Liability . Notwithstanding the foregoing, or any other provision in this Deed of Trust or any other agreement, instrument or document, neither the Trustor nor any present or future partner of the Trustor, nor any present or future individual general partner of any partnership which is now or hereafter a general partner of the Trustor shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement, instrument or document made, entered into or given under or in connection with or pursuant to this Agreement ( including , without limitation , the certificates given by the Trustor pursuant to the provisions hereof ) , or any amendment or amendments to any of the foregoing made at any time or times , heretofore or hereafter, and the Agency and the Beneficiary hereby waive any and all such personal liability. Upon the occurrence of an Event of Default, neither the Beneficiary nor the Agency shall have the right to proceed directly against the Trustor, or any of its present or future partners (or partners of partners ) ; nor shall the Beneficiary or the Agency have the right to obtain a deficiency judgment after foreclosure. The limitation of liability provided in this paragraph is in addition to, and no in limitation of , any limitation on liability applicable to the Trustor provided by law or by any other agreement, instrument or document. -10- ARTICLE III MISCELLANEOUS AND CONDITIONS It is further agreed that: 3 .01 Assignment of Beneficiary' s Interest. The Trustor acknowledges and agrees that the interest of the Beneficiary under this Deed of Trust shall be assigned by the Beneficiary to either Industrial Indemnify Company (the "Surety" ) or The Edward J. DeBartolo Corporation (the "Guarantor" ) pursuant to the terms of either the Trust Agreement or that certain Guaranty Agreement of even date herewith given by the Guarantor to the Trustee, in the event of a payment by the Surety to the Beneficiary under the Surety Bond (as such term is defined in the Trust Agreement) arising from an event of default under the Second Installment Sale Agreement. Upon any such assignment, all right, title and interest of the Beneficiary hereunder shall be vested in the Surety or the Guarantor, as the case may be, without the requirement for any notice of such assignment to the Trustor. 3 . 02 Acceptance of Trust , Notice of Indemnification . The Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, becomes a i public record as provided by law. The Trustee is not obligated to notify any party hereto of any pending, sale under any other Deed of Trust or of any action or proceeding in which the Trustor , the Beneficiary or the Trustee shall be a party unless the Trustee brings such action . The Trustee shall not be obligated to perform any act required of it hereunder unless the performance of such act is requested in writing and the Trustee is reasonably indemnified against loss , cost, liability and expense. 3. 03 Powers of Trustee . From time to time written request of the Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability, if any, of any person for payment of any indebtedness or performance of the obligations secured hereby, the Trustee may, without liability therefor and without notice: reconvey all or any part of the Premises; consent to the making of any map or plat thereor; join in granting any easement thereon; join in any declaration of covenants and restrictions ; or join in any extension agreement or any agreement subordinating the lien or charge hereof . The Trustee or the Beneficiary may from time to time apply in any court of competent jurisdiction for aid and direction in the execution of the trusts hereunder and the enforcement of the rights and remedies available hereunder, -11- and the Trustee or the Beneficiary may obtain orders or decrees directing or confirming or approving acts in the execution of said trusts and the enforcement of said remedies . The Trustee has no obligation to notify any party of any pending sale or any action or proceeding unless held or commenced and maintained by the Trustee under this Deed of Trust. The Trustor shall pay to the Trustee reasonable compensation and reimbursement for services and expenses in the administration of the trusts created hereunder , including reasonable attorneys ' fees . The Trustor indemnifies the Trustee and the Beneficiary against all losses , claims , demands , and liabilities which either may incur , suffer, or sustain in the execution of the trusts created hereunder or in the performance of any act required or permitted hereunder or by law unless such losses , claims , demands or liabilities result from the wrongful act or neglect of the Trustee or the Beneficiary. 3.04 Substitution of Trustee . From time to time , by a writing signed and acknowledged by the Beneficiary and filed for record in the Office of the Recorder of the County in which the Premises are situated , the Beneficiary may appoint another trustee to act in the place and stead of the Trustee or any successor. Such writing shall refer to this Deed of Trust and set forth the date , book and page of its recordation. The recordation of such instrument of substitution shall discharge the Trustee herein named and shall appoint the new trustee as the trustee hereunder with the same effect as if originally named the Trustee herein. A writing recorded pursuant to the provisions of this paragraph shall be conclusive proof of the proper substitution of such new trustee . 3 .05 Reconveyance . Upon written request of the Beneficiary stating that all sums secured hereby have been paid and upon surrender to the Trustee of this Deed of Trust and the Second Installment Sale Agreement secured hereby for cancellation and retention and upon payment of its fees, the Trustee shall reconvey , without warranty , the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof . The grantee in such reconveyance may be described as "the person or persons legally entitled hereto" . 3 .06 Dedication of Road Improvements . Beneficiary acknowledges that the Trustor is constructing certain roadway improvements upon portion of the Premises and that upon the completion thereof , such improvements shall be conveyed and dedicated to the City of Palm Springs , • California as a public right of way . Beneficiary consents to • such conveyance and dedication, and agrees to cause the Trustee to reconvey , without warranty , such portions of the Premises as may be necessary to effect such conveyance and dedication. 3 .07 Marshalling of Assets . The Trustor on its own behalf and on behalf of its successors and assigns of any portion of the Premises , and of future lienholders on any future estate or interest of the Trustor hereunder hereby expressly waives all rights to require a marshalling of assets by the Trustee or the Beneficiary or to require the Trustee or the Beneficiary to first resort to the sale of any portion of the Premises which might have been retained by the Trustor before foreclosing upon and selling any other portion as may be conveyed by the Trustor subject to this Deed of Trust . 3 .08 Non-Waiver. By accepting payment of any sum secured hereby after its due date or late performance of any indebtedness secured hereby , the Beneficiary shall not waive its right against any person obligated directly or indirectly hereunder or on any indebtedness hereby secured , either to require prompt payment when due of all other sums so secured or to declare default for failure to make such prompt • payment. No exercise of any right or remedy by the Trustee or the Beneficiary hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law. No delay or omission of the Trustee or the Beneficiary in the exercise of any right, power or remedy accruing hereunder or arising otherwise shall impair any such right, power or remedy , or be construed to be a waiver of any default or acquiescence therein. Receipt of rents , awards and any other monies or evidences thereof , pursuant to the provisions of this Deed of Trust and any disposition of the same by the Trustee or the Beneficiary shall not constitute a waiver of the power of sale or right of foreclosure by the Trustee or the beneficiary in the event of default or failure of performance by the Trustor of any covenant or agreement contained herein or any note secured hereby. 3 .09 Rules of Construction. When the identity of the parties hereto or other circumstances make it appropriate , the masculine gender includes the feminine and/or neuter and vice versa, and the singular number includes the plural . The headings of each paragraph are for information and convenience only and do not limit or construe • the contents of any provision hereof . . 3 . 10 Severability . If any term of this Deed of Trust or the application thereof to any person or circumstances , shall , to any extent , be invalid or unenforceable , the remainder of this Deed of Trust , or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable , shall not be affected thereby , and each term of this Deed of Trust shall be valid and enforceable to the fullest extent permitted by law. 3 . 11 Successors in Interest . This Deed of Trust applies to , inures to the benefit of , and is binding not only on the parties hereto, but on their heirs , executors , administrators , successors and assigns . All obligations of the Trustor hereunder are joint and several . The term "the Beneficiary" shall mean and include all successors to the original Beneficiary herein named , as trustee under the Trust Agreement . The Beneficiary agrees to provide notice thereot to the Trustor in the manner provided herein for giving notice . 3 . 12 Notices . The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to said the Trustor at its address hereinabove set forth. All other notices to be given pursuant to this Deed of Trust shall be sufficient if mailed postage prepaid , certified or registered mail , return receipt requested , to the above-described addresses of the parties hereto , or to such other address as a party may request in writing . Any time period provided in the giving of any notice hereunder shall commence upon the date such notice is delivered; provided that if such delivery is refused, such notice shall be deemed delivered seventy-two ( 72 ) hours after deposit in the United States Mail . Any notice , certificate or communication required to be given hereunder to the Surety shall be sufficiently given and shall be deemed given on the second business day following the date on which the same shall have been mailed by certified mail , postage prepaid , addressed to the Surety at 225 California Street, San Francisco , California 94111 , Attention : Financial Guarantees . 3 . 13 Modifications . This Deed of Trust may not be amended, modified or changed nor shall any waiver of any provision hereof be effective , except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change , modification or discharge is sought. 3 . 14 Governing Law. This Deed of Trust shall be • construed according to and governed by the laws of the State of California. 3. 15 Trust Irrevocable . This Deed of Trust is • irrevocable by the Trustor. 3 . 16 Counterparts . This Deed of Trust may be executed in several counterparts, each of which shall be deemed an original , and all such counterparts shall constitute one and the same instrument . IN WITNESS WHEREOF , the Trustor has caused this instrument to be executeo as of the date first above written. TRUSTOR: NORTHZX6",'� ASSOCIATES By D v m, eral Partner of North Plaza Associates By: Ap5 Gerson I . Fox, Gener Partner of North Plaza Associates , by David Blum, his Attorney- in-Fact it By: DESERT FASHION PLAZA, INC . , an Ohio corporation, as General Partner of North Plaza Associates By : ✓ J(�r� `� Richard S. Sokolov Vice President By : F r Ar hur D. Wol ale 3r Secretary w t° -15- BENBF'ICIARY: • SECURITY PACIFIC NATIONAL HANK By: r \ By : v STATE OF' 'A ) COUNTY OF 1�T��E1�C' i SS: On - , 1984, before me , the undersigned , a Notary Public��;R( n and for said State , personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person that executed this instrument on behalf of NORTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official s Signature l _ i STATE OF U ) COUNTY OF �( ) SS . On A C7 , 1984 , before me , the undersigned , a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of NORTH PLAZA ASSOCIATES , and acknowledged to me that such partnership executed it . WITNESS my hand and official s 1 . i Signature -16- STATE OF OHIO ) ) SS : COUNTY OF MAHUNING) (i On this day of September, 1984, before me , a Notary Public , in and for said State , personally appeared Richard S. Sokolov and Arthur D. Wolfcale , jr . , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary, respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or proved to me on the basis of satistactory evidence) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of NORTH PLAZA ASSOCIATES. WITNESS my hand and official seal . Signature -- �, DENISE A. YAVORSKY, otcry �b ic i- State of h�io N,y commission Expires October 14, o -- STATE OF TEXAS ) SS : COUNTY OF ) On this day of September, 1984 , before me , a Notary Public , in and for said State , personally appeared and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as and , respectively, of SECURITY PACIFIC NATIONAL BANK, the corporation therein named, and who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the and , respectively, of such corporation, and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors . WITNESS my hand and official seal . Signature -17- BENEFICIARY: SECURITY PACIFICNATIONAL BANK By: �� Lrt.�� By : 1Assistant ice President 0, a44�� Assistant Secretary STATE OF ) SS: COUNTY OF ) On 1984, before me , the undersigned , a Notary Public in and for said State , personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person that executed this instrument on behalf of NORTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official seal . Signature STATE OF ) SS : COUNTY OF ) On 1984 , before me , the undersigned , a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of NORTH PLAZA ASSOCIATES , and acknowledged to me that such partnership executed it. WITNESS my hand and official seal . Signature -16- STATE OF OHIO ) ) SS : COUNTY OF MAHONING) On this day of September, 1984 , before me , a Notary Public , in and for said State , personally appeared Richard S . Sokolov and Arthur D. Wolfcale , jr . , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary, respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named, and who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of NORTH PLAZA ASSOCIATES. WITNESS my hand and official seal . Signature STATE OF CALIFORNIA COUNTY OF LOS Angeles �ss. (I On September 19, 1984 ,before me, the undersigned,a Notary Public in and for said State,personally appeared r.vnthia3_ Dil lard _personally known to me or proved to me on the basis of satisfactory evidence to be the Assistant Vice President,and Sandra Leess G known to me to be the Assistant Secretary of the Corporation that executed the within Instrument, known to me to be the persons who executed the within Instrument on behalf of the Corporation therein named,and acknowledged to me that such Corporation executed the same,and acknowledged to me that such Corporation executed the within Instrument pursuant to its by-laws or a resolution of Its board of directors. W IT N ES�_xn n-( nQ off i�I sgal _ R'�-^r QNI�ICLAL SEI•� i (Seal) ' •,�-1-.� t_CLLS;��+.�� P1 !4,01:47tERRZ.t ) / NOTP,RY PUEL C-,.,AUF,JR�r /, All E c I�i� !�/j �� Cl Ck..�I(✓LGS sddGE _re COLI.IY � T My Commission E;pkes npni tE,1S°5 y / (Notary Public's Slgnat+e) 1` 023077 9-82* 25 PS Corporation Notarial Acknowledgment resolution Or LLe nuaLu — --u- - WITNESS my hand and official seal . Signature • —17— PART I • A FEE SIMPLE INTEREST IN AND TO THE FOLLOWING PARCELS OF LAND SITUATED IN THE CITY OF PALM SPRINGS, .COUNTY OF RIVERSIDE, STATE OF CALTFORNIA. PARCEL NO. 1 : LOTS 1 , 2 AND 3 IN BLOCK 22 OF PALM STRINGS AS SIIOWN MAT' ON FILE IN BOOK 9, PAGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS. PARCEL NO. 2: LOT 4 1N BLOCK 22 OF PALM SPRINGS, AS PER MAP RECORUCO IN BOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY . PARCEL NO. 3: LOT S IN BLOCK 22 OF PALM SPRINGS, AS SHOWN BY MAP (IN FILE IN BOOK 99 PAGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS. PARCEL NO. 4 : LOTS 6 THROUGII 14 , INCLUSIVE, THE MIRTH 33 FEET OF LL)I 20, LOTS 29 THROUGH 36 INCLUSIVE, 1N f,LOCK 2 OF F'ALM SPRINGS, AS SHOWN BY MAF' ON FILE IN BOOK 9, PAGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS. PARCEL NO. 5: LOTS 15, 169 17 , 10, AND THE NORTHERLY RECTANGULAR 3 FEET OF LOT 19 , 1N CLOCK 22 OF PALM SPRINGS , AS SHOWN F:Y MAF' ON FILE IN BOOK 9, PAGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS . PARCEL NO. 6: LOTS 25, 26, 27 AND 20 OF E+LOCK 22 OF PALM SPRINGS, A� SHOWN BY MAT" ON FILE IN„BOOK 9 , PAGE 432 OF MAFS , SAN DIEGO COUNTY RECORDS; EXCEPTING FROM SAID LOTS 25, 26 AND 27 THE SOUTHERLY 147 FEET ; ALSO EXCEPTING FROM SAID LOT 20, THE NORTHERLY 33 FEET. PARCEL NO. 7A: THAT PORTION OF BLOCK 22 OF PALM SPRINGS , AS SHOWN F'.'Y MAP ON FILE IN BOOK 90 PAGE 432 OF MAPS , SAN DIEGO COUNTY RECORDS, DESCRIBED AS FOLLOWS: CEGINNING AT A POINT ON THE WEST LINE: OF MAIN STREET, AS SHOWN ON SAID MAP , 75-4 FLET NUR1I1 (IF THE N01I11 .LINL 01' SPRING STREET ; THENCE WEST , PARALLEL WITH 1111- NORTH LINE or SPRING S1 REL T , 125 FEET ; THENCE 140k 1 H. f Ak)LLEL W 1111 THE WEST LINE (IF MAIN STREET , 47 FEET ; THENCE EAST, PARALLEL PART II A LEASEHOLD ESTATE IN AND TO THE FOLLOWING PARCELS OF LAND SITUATED IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. PARCEL NO. 11A: THAT PORTION OF BELARDO ROAD AND ANDREAS ROAD BELONGING TO SOUTH PLAZA ASSOCIATES AS SAID STREETS WERE VACATED AND ABANDONED BY RESOLUTION NO. 14784 BY THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AND RECORDED APRIL 13, 1984 AS INSTRUMENT NO. 76179 . PARCEL 13: THAT PORTION OF BLOCK 13, BLOCK 10, LAWN STREET (NOW ABANDONED) AND ORANGE AVENUE (NOW ABANDONED) , AS PER MAP RECORDED IN BOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND PARCEL MAP RECORDED IN BOOK 1, PAGE 17 OF PARCEL MAPS, PARCEL MAP RECORDED IN BOOK 1, PAGE 49 OF PARCEL MAPS, PARCEL MAP RECORDED IN BOOK 2, PAGE 89 OF PARCEL MAPS, PARCEL MAP RECORDED IN BOOK 7, PAGE 84 OF PARCEL PLOPS, ALL RECORDS OF RIVERSIDE COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID BLOCK 13; THENCE NORTH 00 DEGREES 08 MINUTES ALONG THE EAST LINE OF SAID BLOCK A, A DISTANCE OF 178.00 FEET; THENCE SOUTH 89 DEGREES 50 MINUTES WEST, A DISTANCE OF 467 .24 FEET; THENCE SOUTH 0 DEGREES 10 MINUTES EAST, A DISTANCE OF 184.00 FEET; THENCE NORTH 89 DEGREES 50 MINUTES EAST, A DISTANCE OF 9.93 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 12.95 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90 DEGREES 02 MINUTES 00 SECONDS AND A LENGTH OF 20.35 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 55.00 FEET; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14 DEGREES 11 MINUTES 04 SECONDS AND A LENGTH OF 13.62 FEET; THENCE NORTH 89 DEGREES 50 MINUTES EAST AND PARALLEL TO THE SOUTHERLY LINE OF SAID BLOCK 13, A DISTANCE OF 445.58 FEET TO A SOUTHERLY EXTENSION OF THE EAST LINE OF SAID BLOCK 13; THENCE NORTH 00 DEGREES 08 MINUTES WEST ALONG SAID EXTENSION, A DISTANCE OF 31.00 FEET TO THE SOUTHEAST CORNER OF SAID BLOCK 13 AND THE POINT OF BEGINNING. . EXCEPIING THEREFROM THAT PORTION OF SAID PARCELS DESCRIBED AS FOLLOWS: Beina all of Lots 1 to 14 inclusive, and all of Lots 30 to 36 inclusive, and portion of Lots 15 and 29, all in Block 22 , of Palm Springs, as shown by Map on file in Book 9, Page 432 of taps , San Diego County Records, described as follows : BEGINNING at the Northeast corner of said Block 22; THENCE alonq the East line of said Block 22 , also being the East line of Lots 1 to 14 inclusive and portion of Lot 15, South 0008' 00" East, 365. 00 feet; THENCE parallel with the North line of said Block 22, South 89149' 50" West, 80.00 feet; THENCE parallel with the East line of said Block 22, South 0'08' 00" East, S.00 feet; THENCE parallel with the North line of said Block 22, South 89'49' 50" West 177 .48 feet to a point in the West line of said Block 22, said point also being in the West line of Lot 29; THENCE along the West line of said Block 22 and the West line of Lots 29 to 34 inclusive, North 0'08'00" West, 373. 00 feet, to the Northwest corner of said Block 22, said point also being the Northwest corner of Lot 34; TIiENCE along the North line of said Block 22, also being the North line of Lots 34 to 36 inclusive and Lot 1 , North 89049150" East, 257.42 feet, to the POINT OF BEGINNING. Containing 95,400.02 S. F./2.19 Acres. EXHIBIT "A" • DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTHEAST CORNER OF PARCEL 13 AS SNIIWN (.1N PARCEL MAT'' RECORDED IN Pool< 1 , TAGC 17 Or PARCEL. MATS, RECORDS OF RIVERSIDE COUNTY , CALIFOP:NIA, THENCE 00 ' 00 , EAST', ALONG 114E EASTERLY I. INC J111 0^ OF SAID _ 5UISoi.I_. 13, A DISTANCE OF 7. 07 FEET TO THE TRUE_ F'OINT OF CCGINNING ; THENCE CONTINUING SOUTH 0° 00 ' 00, FAST , ALONG SAID EASTERLY LINE, A DISTANCE OF 199. 13 FEET; THENCE SOUTH 09° Sp WEST ( RECORD SOUTH 09' 50' WE S1 ) , A O 1 S I ANCE_ CIF 402,60 FEET ; THENCE SOUTH 0° 00 , 00 ' EAST , A DISTANCE OF 67. 99 FEET TO A F'C?IN1 ON 'TFIE ARC OF A CURVE CCINCAVF' F;OUIHEASIERI.Y, HAVING A RADIUS OF 20 .00 FEET , A RADIAL LINE PASSING THR01.I(311 (:;AID F OI NT BEARS SOL11 H U9' S2 ' 00' WFS 1 ; I FIE.tlCC NUFi111E RL1' , tlURTFIEASTERI_Y AND EASTERLY ALONG THE ARC OF SAID CURVE: THROUGH A CENTRAL ANGLE OF' 69° So' :'S' , , A D1 S I AtlCF_ C1F' 31 . 4:1, FEET ; THENCE TANGENT' 'TO SAID CURVE NORTH 09° 50' 25' F_AAS7 ( RECORD NORTH E39° 50 ' EAST ) A DISTANCE OF 3112. 61 FLET ; THENCE SOUTH 0° 00 ' 00' EAST , A DISTANCE OF 5 .00 FEET ; THENCE NORTH 07" 50� 2S' EAST ( RECOPI) NORTH 09', 50' FAST ) , A DISTANCE OF 203. 4, FEET TO THE PEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 20. 00 FEET; THENCE EASTERLY, SOUTHEASTERLY AND SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CFNIRAL ANGLE OF 90" 01 ' 35' , CURVE -DISTANCE RADIAL 1LINE PASSING AT I IROUGHO!',,^i To THE POTIX] NT(IPEARS SAID Off° 52 ' 00 ' EAST ; THENCE NORTH 0° 00 ' 00' WEST , A DISTANCE (.IF" 20. 01 FEET; TIIFNCE NORTH 190 11 ' 551 EAST', A DISTANCE OF 60. 42 FEET ; THENCE SOUTH 89° 50 ' 2 .' D9° 50 WEST) , WEST ( RECORD SOUTH DISTANCE OF1,,0 . ,,0 FEE.1 ; T14F.:.tJCE WOR"TFI 00 00 ' 00' WEST , A DISTANCE OF 5.00 FEET*; THENCE SOUM 090 50' 25' WEST ( RECORD SOUTH 090 50 ' WEST ) , A DISTANCE OF 71 .96 FEET TO THE BEGINNING OF A TANGENT CURIE CotlCAVE NORTHEASTERLY HAVING A RADIUS OF 35. 00 FEET; TIIFNCE WESTERLY , NORTHWESTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE , THROUGH A CENTRAL ANGLE of 900 01 ' 35' , A DISTANCE OF -4 . 99 FEET; THENCE NCJRTH 0° 00 , 00' WEST , A DISTANCE OF 221 . 11 FEET ; THENCE SCIUTH 44° 51 ' 12' WEST, A DISIA14CE OF 93 .36 FEET TO THE TRUE F'OINT OF BEGINNING. 70GEIIIER WITH THAT F'ORTI'ON OF FTLARDLI ROAD AS DESCRICE:D IN THAT CERTAI14 OUITCLAIM DEED FROM THE CITY OF PALM SPRING;; ,A MUNICIPAL CORF'ORATIDN, RECORDED APRIL 13, 1704 AS INSiRUMFrlT ND. 76100 . • WITH THE NORTH LINE OF SF''RING S1NFF... i , 15O. 5 FEET ; THENCE, NORTH PARALLEL. WiTH THE WEST LINE OF MAIN STREET, 15:"; FE.F1 ; THENCE EAST PARALLEL WITH THE NORTH LINE OF sr,[<i0o SIRE_ET 1.50 .5 FEET TO THE WEST LINE OF MAIN ;.IIREET; THENCE C;OU111 ON TIME WEST LINE OF MAIN STREET 155 FEET 1U THE PCTIN'T OF UEGiNNING. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PORTION: F::EGINNING AT A POINT ON iHE. WEST LINE OF MAIN STREET , 6'S FEET NORTH OF THE NORTH LiNE OF SPRING S1'RFET; 1HLN(::E: WEST F'ARALLEL WITH TIIC NOF2TI1 LINE OF SPRING STRC.E. T : G FEE'i ; 1 HF_NCE NORTH PARALLEL WITH THE WEST LINE OF MAIN 51 RG:L 'T' 33 FEET; THENCE WEST PARALLEL WITH THE N(.1T;TI1 LINE" OF SPR, ING STREET, G FEET; THENCE NORTH i'ARAL.LEL. WITH THE WEST LINE OF MAIN STREET, 46 FEET ; THENCE F..AST PARAL..I_EJ W111I TIIf.:: NORTH LINE OF SPRING STREET , 63 FEET TO THE. WEST' LINE UP' MAIN STREET; TIIENCE SOUTH ON THE WEST LINE or MAIN SiRECT , 79 FEET TO THE POINT OF EEGINNING. PARCEL NO. 10: THAT PORTION OF LAWN STREET, PALM AVENUE , AND OF ULOCI< 22 OF' F'ALM SPRINGS, AS SLIUWN E.:Y MAF' 1.1N TILE IN E:DOIi 'i, . F'AGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS, DESCRIBED At:S FOLLOWS: COMMENCING AT A POiNT ON THE WESTERLY LINE OF MAIN STREET , AS SHOWN ON SAID MAT', 604 FEET NUN 1 IIF RLY OF THE N(JR I HE I<I_T LINE OF SPRING STREET; THENCE WESTERLY , PARALLEL WITH iHE NORTHERLY LINE OF SPRING STRE:E1 , 150-5 FE.F.T If.) 'THE TRUE.. POINT OF BEGINNING; THENCE WESTERLY , PARALLEL WITH 1'III::: NORTHERLY LINE OF SPRING SiREF'T, 140 FEET; 1HE:.NCE NORTHERLY, PARALLEL WITH THE WESTERLY LINE OF MAIN STREET', 150 FEET ; THENCE EASTERLY, PARALLEL. Wi114 THE NORTHERLY L- INE OF SPRitm STREET , 1.40 FEET ; THENCE SOUTHERLY , PARALLEL WITH THE Wf::"SiERL..'f LINE OF MAIN STREET, 150 FF::E'T, TO TIIF TRUE POINT or PE:GINNING. EXCEPTING THF_.RErROM THAT PORTION 1 HF_REOF AS DESCRIBED IN PARCEL NO. 11 HEREIN.. PARCEL NO. 11 : THAT PORTION OF THE EAST HALF OF REL_ARDO ROAD AND 1HC NORTH HALF OF ANDREAS ROAD LYING EASiERLY OF THE CE:.N1ERLINE OF EELARDO ROAD AS SAID STREETS WERE GRANTED TU THE CITY or, PALM SFr:INGS AS EASEMENiS FOR STREE.I PURPOSES IN 'iHOSE CERTAIN DOCUMENTS RECORDED JANUARY 3, 1967, AS DOCUMENI' NO. 157, RECORDED NOVEMUER 20, 1960, AS DOCUMENT NO. 111594 , RECORDED NOVEMBER 22, 1960, AS DOCUMENT NO. 112099 AND RECORDED FEBRUARY 16, 1977, AS DUCUME: tI'f N0. 2329f,, ATdD AS VACATED 1N THAT CERiAIN DOCUMENT' ENTITLED 'RC:SOLU1' I011 NO. 11704 OF" THE CITY COUNCIL OF THE. C'llY OF F'AL.t1 Sr'r ING':;, CALIFORNIA, ' RE.CURDFD APRIL 13 , 1904 AS INSTRUmr_Nf NO . 76179 , ALL OF OFFICIAL RECORDS OF' RIVERSIDE COUNTY, cALIruRt11A, WITH THE NORTH LINE OF SPRING STREET , 125 FEET 10 THE. WEST LINE OF MAIN STREET; THENCE SOUTH, ALONG THE WEST LINE OF MAIN STREET, 47 FEET TO THE POINT 0r BEGINNING. PARCEL NO. 7B: THAT PORTION OF PALM AVENUE AND OF BLOCK 22 CIF PALM SPRINGS, AS SHOWN BY MAP ON FILE IN E'OOL( 9, PAGE 432 Or MAPS, SP?J DIEGO COUNTY RECORDS, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE WEST LINF OF MAIN STREET , AS SHOWN ON SAID MAP, 754 FEET NORTH Or THE NORTH L. INF OF SPRING STREET; THENCE WEST , PARAL LF.L WITH THE NORTH I LINE OF SPRING STREET, 125 FEET TO THE TRUE POINT Or BEGINNING ; THENCE NORTH, PARALLEL WITH THE WEST LINE OF MAIN STREET, 47 FEET; THENCE WEST , PARALLEL WITH 111E NOPTFI LINE OF SPRING STREET , 165 FEET; THENCE SOUTH, PARALLEL WITH THE: WEST LINE OF MAIN STREET, 47 FEET; THENCE EAST, PARALLEL WITH THE NORTH LINE OF SPRING STREET , 16s FEET TO THE TRUE POINT OF BEGINNING . EXCEPTING THEREFROM THAT PORTION THEREOF AS DESCRIBED IN PARCEL. NO. it HEREIN. • PARCEL NO. 0 : 111AT PORTION OF LOTS 21 , 22, 23 AND 24 1N BLOCK 22 OF PALM SPRINGS, AS SHOWN BY MAP ON FILE IN BOOK 9, PAOF 432 or MAPS, SAN DIEGO COUNTY RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WEST LINE OF MAIN STREET , AS SHOWN ON SAID MAP, 67S FEET NORTH OF THE NORTHERLY LINE. OF SPRING STREET ; THENCE WEST , PARAL.LEL.. WITH THE: NORTH LINE OF SPRING STREET, 55 FEET ; THENCE NORTH, PARAL.LF'I_ WITH THE WEST LINE OF MAIN STREET, 33 FEET ; THENCE WEST , PARALLEL WITH THE NORTH LINE OF SF'R I NG STREET, 0 FEET ; THENCE NORTH, PARALLEL WITH THE WEST LINE OF MAIN S'TREE:T', 46 FEET; THENCE EAST , PARALLEL W11H THE NORTH LINE OF SPRING STREET, 63 FEET; THENCE SOUTH, ALONG THE WEST LINE OF MAIN STREET, 79 FEET, TO THE.FOINT OF BEGINNING. PARCEL NO. 9: THOSE PORTIONS OF LAWN STREET, AS VACATED BY RESOLUTION Or THE r'OARD Or CUPERVISORS Or RIVERSIDE COUNTY ON OC10BER 11 , 1916, A CERTIFIED COPY OF SAID RESOLUTION BEING FILED FOR RECORD OCTOBER 17, 1916 IN BOOT( 451 , PAGE 197 OF DEEDS, . AND THAT PORTION OF LOT 1 1N BLOCK 21. AND THOSE PORTION OF LOTS 21 , 22, 23, .24 AND 25, IN BLOCK 22 OF PALM SPRINGS, ALL AS SHOWN BY MAP ON FILE IN COOK 9 , PAGE 432 OF MAPS , SAN DIEGO COUNTY RECORDS, DESCRIBED AS FOKLOWS: BEGINNING AT A POINT IN THE WEST LINE OF MAIN STREET ( NOW PALM CANYON DRIVE) 599 FEET NORTH F'RON THE NORTH LINE OF SPRING STREET (NOW TAHOUITZ DRIVE) ; THENCE:. WEST, PARALLEL.. TEF11/wpl-9/17/84 RECORDING REQUESTED BY: When Recorded Return To: Jones , Hall, Hill & White A Professional Law Corporation Four Embarcadero Center San Francisco , California 94111 Attention: Chares F . Adams , Esq. DEED OF TRUST THIS DEED OF TRUST (hereinafter referred to as the "Deed of Trust" ) , made as of September 1 , 1984 , by and between SOUTH PLAZA ASSOCIATESD a California general partnership, whose address Market Street , Youngstown, Ohio 44512, Attention: eral Counsel , (hereinafter referred to as "Trustor" TRANSAMERICA TITLE INSURANCE COMPANY (hereinafter referred to as "Trustee" ) and SECURITY PACIFIC NATIONAL BANK, r oration, as rustee, whose address is 333 South Hope Street, Los Ange es, California 90071 , Attention: Corporate Trust Department (hereinafter, together with its successors and assigns , referred to as the "Beneficiary" )_; W I T N E S S E T H : That for good and valuable consideration , including , without limitation , the benefit of certain proceeds to be disbursed by the Beneficiary pursuant to the "Trust Agreement" described below, and to secure ( i ) payment of the purchase price , together with interest thereon, payable to the Community Redevelopment Agency of the City of Palm Springs (the "Agency" ) , as seller, by the Trustor, as purchaser, pursuant to the Second Installment Sale Agreement by and between the Agency and the Trustor of even date herewith (the "Second Installment Sale Agreement" ) , the rights in which have been assigned to Desert Fashion Plaza , Inc. , an Ohio corporation (the "Seller" ) pursuant to that certain Second Assignment Agreement from the Agency to the Seller of even date herewith (the "Second Assignment" ) , and which have been further assigned by the Seller to the Beneficiary, as trustee for the benefit of the owners of the $ 23 , 250 , 000 principal amount of Certificiates of Participation (the "Certificates" ) executed and delivered pursuant to the Trust Agreement of even date herewith ( "Trust Agreement" ) by and among the Beneficiary, the Agency and the - Seller, pursuant to the First Assignment, (ii ) any other indebtedness by the Trustor to the Trustee or the Beneficiary arising under the terms hereof , the Second Assignment or in any other instrument constituting additional security for the -1- aforementioned obligations , ( iii ) every obligation contained in this Deed of Trust , in any agreement modifying this Deed of Trust , and in any other instrument now or hereafter securing any inoebtedness secured by this Deed of Trust , ( iv ) performance of all obligations of the Trustor under the Second Installment Sale Agreement and the Second Assignment - as all of the above may hereafter be modified and as the rate of interest on any payments shall be adjusted as set forth in the foregoing documents , the Trustor does hereby irrevocably grant, bargain, sell , and convey unto the Trustee , in trust , with power of sale , the property described in Exhibit A attached hereto and made a part hereof , which , together with the Trustor' s interest in the buildings and improvements now or hereinafter to be constructea thereon, is referred to herein as the "Premises" ; TOGETHER WITH : ( a ) All buildings and improvements of Trustor, now or hereafter located on the land described in Exhibit A hereto, all privileges and other rights now or hereafter made appurtenant thereto including , without limitation, all right, title and interest of the Trustor in and to all streets , roads and public places , opened or proposed and all easements and rights of way, public or private , now or hereafter used in connection with the Premises ; and (b) All judgfnents, awards of damages and settlements hereafter made asp a result of or in lieu of any taking of the Premises or any part thereof or interest therein under the power of eminent domain, or for any damage (whether caused by such taking or otherwise) to the Premises or the improvements thereon or any part thereof or interest therein, including any award for change of grade of streets ; subject , however, to the obligation of the Beneficiary to make such proceeds available to Trustor for the purposes set forth in Article VII of the Trust Agreement ; and (c) All proceeds of the conversion, voluntary or involuntary or any of the foregoing into cash or liquidated claims ; and (d ) All interest and right of the Trustor in, to and under the Second Installment Sale Agreement. TO HAVE AND TO HOLD UPON THE FOLLOWING EXPRESS TRUSTS : PROVIDED, HOWEVER, that if the Trustor shall fully pay or cause to be paid to the Beneficiary the principal and interest with respect to the Second Installment Sale -2- Agreement, and any prepayment, premium and late charges , if any, to become due thereupon at the time and in the manner stipulated therein, and shall pay or cause to be paid all other sums payable hereunder and all indebtedness hereby secured , and shall keep and perform or cause to be kept and performed all and singular the covenants contained herein and in the Second Installment Sale Agreement and the Second Assignment then, in such case , the estate, right, title and interest of the Beneficiary in the Premises shall cease, determine and become void and upon proof being given to the satisfaction of the Beneficiary that all such payments have been paid or satisfied , and upon payment of all amounts payable under all of such documents , and upon payment of all fees , costs , charges , expenses and liabilities chargeable or incurred or to be incurred by the Beneficiary, and of any other sums as herein provided, the Beneficiary shall, upon receipt of the written request of the Trustor , cause this Deed of Trust to be cancelled, released and discharged and marked satisfied of record and shall cause the Trustee to reconvey the Premises and every interest of the Trustee therein unto the Truster. ARTICLE I TRUSTOR' S COVENANTS The Trustor covenants and agrees with the Trustee and the Beneficiary that: 1 .01 Title . The Trustor warrants that it has good and marketable title to an indefeasible fee simple estate in the real estate described in Exhibit A, subject to no liens , charges or encumbrances (other than Permitted Encumbrances as defined herein or in the Trust Agreement , including but not limited to Permitted Encumbrances to which this Deed of Trust may be subordinated pursuant to Section 1 . 20 ) ; that the Trustor has full power and authority to grant, bargain, sell and convey the Premises in the manner and form herein done or intended hereafter to be done; that this Deed of Trust is and shall remain a valid and enforceable lien on the Premises subject only such Permitted Encumbrances; that the Trustor and its successors and assigns shall warrant and defend the same forever against the lawful claims and demands of all persons whomsoever, and that this covenant shall not be extinguished by any exercise of power of sale , foreclosure or sale hereof but shall run with the land. The Trustor shall, at the cost of the Trustor, and without expense to the Beneficiary do, execute, acknowledge -3- and deliver all and every such further acts , deeds , conveyances , deeds of trust , assignments , notices of assignments , transfers and assurances as shall be reasonably necessary for the assuring , conveying , assigning , transferrring and confirming unto the Trustee or the Beneficiary the property and rights hereby conveyed or assigned or intended now or hereafter so to be , or which the Trustor may be or may hereafter become bound to convey or assign to the Trustee or the Beneficiary, or for carrying out the intention of facilitating the performance of the terms of this Deed of Trust provided that the same do not increase the substantive obligations of Trustor, in any material respect from those obligations set forth in the Second Installment Sale Agreement or this Deed of Trust , or for filing , registering or recording this Deed of Trust. The Trustor, forthwith upon the execution and delivery of this Deed of Trust shall cause this Deed of Trust to be recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the interest of the Trustee or the Beneficiary in, the Premises . The Trustor shall pay all filing , registration or recording fees , and all expenses incident to the preparation, • execution and acknowledgment of this Deed of Trust, any deea of trust supplemental hereto, and any instrument of further assurance , and all feaeral , state, county and municipal stamp taxes and other taxes , duties , imposts, assessments and charges arising out of or in connection with the execution and delivery of the Second Installment Sale Agreement, this Deed of Trust , any deed of trust supplemental hereto , or any instrument of further assurance. The Trustor, and each of its general partners and general partners of general partners , if any, if any be a corporation, partnership, limited partnership, or other legal entity shall, so long as it is owner of the Premises or of an interest in the Trustor or a general partner of the Trustor, do all things necessary to preserve and keep in full force and effect its existence, franchises , rights and privileges as a legal entity under the laws of the state of its formation and shall comply with all regulations , rules , ordinances , statutes , orders and decrees of any governmental authority or court applicable to such entity or to the Premises or any part thereof. 1 .02 Payment of Indebtedness. The Trustor shall promptly and punctually pay all principal and interest, prepayment premium, and all other sums to become due in respect of the Second Installment Sale Agreement and any other indebtedness hereby secured , according to the true intent and meaning thereof . —4— • 1 .03 Casualty . The Trustor shall promptly notify the Beneficiary and the Surety of any loss whether covered by insurance or not . The Net Proceeds of such insurance shall be paid to the Beneticiary deposited in the Insurance and Condemnation Fund established under the Trust Agreement and applied pursuant to and in accorcance with Article VII of the Trust Agreement. 1 .04 Condemnation . The Trustor, immediately upon obtaining knowledge of the institution of any proceeding for the condemnation of the Premises or any portion thereof , shall notify the Beneficiary and ,the Surety of the pendency thereof . The Trustor hereby assigns , transfers and sets over unto the Beneficiary all compensation, rights of action, the entire proceeds of any award and any claim for damages for any of the Premises taken or damaged under the power of eminent domain or by condemnation or by sale in lieu thereof which proceeds shall be deposited by the Beneficiary in the Insurance and Condemnation Fund established under the Trust Agreement and appliee pursuant to and in accordance with Article VII of the Trust Agreement. The Trustor agrees to execute such further assignments of any compensation, award , damages , right of action and proceeds , as the Beneficiary may reasonably require . • 1 .05 Liens and Encumbrances . The Trustor shall pay when due all lawtul obligations , claims or demands of any person which , if unpaid , might result in, or permit the creation of , a lien or encumbrance on the Premises or on the rents , issues , income and protits arising therefrom, whether such lien would be senior or subordinate hereto, including , but without limiting the generality of the foregoing , all rightful claims of mechanics , materialmen, laborers and others for work or labor performed , or materials or supplies furnished in connection with any work of demolition , alteration, improvement of or construction upon the Premises . The Trustor reserves the right to contest the validity of any such lien or claim, provided that Trustor shall post a Statutory Lien Release Bond as provided by law. 1 .06 Taxes and Assessments . The Trustor will pay or cause to be paid , as the same respectively become due , all taxes and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Premises or any moditication, improvement or addition to the Premises or any interest therein ( including the Beneficiary ' s interest) or the rentals and revenues derived therefrom or hereunder; and all assessments and charges lawfully made by any governmental body for public improvements that may be secured by a lien on the Premises ; provided that with respect to special assessments or other -5- . governmental charges that may lawfully be paid in installments over a period of years , the Trustor shall be obligated to pay only such installments as are required to be paid during the term of this Deed of Trust. The Trustor may , at its expense and in its good name , in good faith contest any such taxes , assessments and other charges and , in the event of any such contest , may permit the taxes , assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom. In the event that the Trustor shall fail to pay any of the foregoing items .required by this paragraph 1 .06 to be paid by the Trustor, the Agency, the Beneficiary or the Surety , after ten ( 10 ) days prior written notice to Trustor, may ( but shall be under no obligation to) pay the same and any amounts so advanced therefor by the Agency , the Beneficiary or the Surety shall become an additional obligation of the Trustor to the party making the advancement , which amounts , together with interest thereon at the respective rates borne by the outstanding Certificates , the Trustor agrees to pay. 1 .07 Sale of Premises . The Trustor agrees that the Premises or any part thereof or interest therein may be sold, assigned , transferred , further encumbered, conveyea or otherwise alienated by the Trustor pursuant to and in • accordance with the provisions of the Second Installment Sale Agreement and other applicable provisions of this Deed of Trust. No change in ownership or transfer of any interest in the Premises , no forbearance on the part of the Beneficiary or the Surety, no extension of the time for the payment of the Deed of Trust indebtedness or any change in the terms thereof consented to by the Beneficiary or the Surety shall in any way whatsoever operate to release , discharge , modify, change or affect the original liability of the Trustor herein,- either in whole or in part , except as provided in the Second Installment Sale Agreement or this Deed of Trust. Any deed conveying the Premises , or any part thereof , shall provide that the grantee thereunder assumes and agrees to pay all of the grantor' s obligations hereunder or hereby secured and all other instruments or agreements evidencing or securing the repayment of the Deco of Trust indebtedness subject to the terms and conditions of this Deed of Trust . In the event any deed of transferring ownership of or an interest in the Premises shall not contain such assumption and agreement to pay , the grantee under such deed shall nevertheless be conclusively deemed to have assumed and agreed to pay such obligations by acquiring the Premises or such portion thereof subject to this Deed of Trust. 1 .08 Estoppel Certificates . The Trustor and the Beneficiary, as the case may be , within ten (10 ) days after -6- written request , shall furnish a duly acknowledged written statement setting forth the amount of the debt secured by this Deed of Trust , and stating either that no setoffs or defenses exist against the Deed of Trust debt , or, if such setoffs or detenses are alleged to exist , the nature thereof . 1 .09 r'uture Liens . The Beneficiary and the Trustee acknowledges that the Premises are part of the renovation and expansion of the Desert Fashion Plaza Shopping Center ( the "Development" ) and that in order to facilitate the conststruction and operation of the Development , the Truster , North Plaza Associates and Pratt/North Plaza Associates will , trom time to time , execute and deliver deeds of trust, mortgages , financing statements, easements, leases , assignments of rents and assignments of leases (hereinafter collectively referred to as "Encumbrances" ) each of which may create legal and beneficial interests in the Premises covered by this Deed of Trust . It is the intention of the Truster, Trustee , the Beneficiary , ana the Surety that this Deed of Trust shall be subordinate to all such Encumbrances, whether now or hereafter created . Without limitation of the foregoing , such parties specifically agree that this Deed of Trust shall be , without turther act by the Trustee , the Beneficiary, or the Surety, subordinate to: (a) any deed of trust and related instruments securing a construction loan to the Developer by Coldome Realty Credit Corporation or an affiliate thereof ; (b) any lease by the Trustor to Federated Department Stores , Inc. , or an affiliate thereof ; (c ) any lease by the Truster to Saks & Company or an affiliate thereof; (d) the Easement and operating Agreement to be entered into by and between Trustor, Pratt/North Plaza Associates and North Plaza Associates . The Trustee and the Beneficiary agree to execute and deliver such subordination and nondisturbance agreements as the Trustor may reasonably request in conjunction with the foregoing Encumbrances and such other Encumbrances as may be created from time to time in conjunction with the Development within ten ( 10 ) days after receipt of written request therefor. If the Trustee or Beneficiary shall fail to comply with this requirement within the time permitted therefor, the Truster shall be authorized to execute such instruments in the name of the Trustee or Beneficiary, as the case may be, and the Trustee and Beneficiary each appoint Truster as their attorney in fact for such purpose . —7— ARTICLE II DEFAULT It is mutually agreed that: 2 .01 Events of Default . Any event of default under and as defined in the Second Installment Sale Agreement which Trustor shall have failed to cure within the time permitted therefor shall be deemed to be and shall constitute an event of default under this- Deea of Trust (an "Event of Default" ) . 2 .02 Remedies . ( a) Upon and after such Event of Default , the Beneficiary without further demand on the Trustor may, ( i ) institute proceedings for the complete or partial foreclosure of this Deed of Trust; or ( ii ) apply to any court or competent jurisdiction for the appointment of a receiver or receivers for the Premises and of all the earnings , revenues , rents , issues , profits and income thereof ; ( iii ) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the Second Installment Sale Agreement , or in aid of the execution of any power herein granted , or for any foreclosure hereunder , or for the enforcement of any other appropriate legal or equitable remedy or otherwise as the Beneficiary shall elect. (b) The Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale , and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement; and , except as otherwise provided by any applicable provision of law , the Trustee, without further notice or publication, may make such sale at the time and place to which the same shall be so postponed. (c) Upon the completion of any sale or sales made by the Trustee under or by virtue of this Section, the Trustee shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments , conveying , assigning and transferring all estate, right, title and interest in and to the property -8- and rights sold , but without any covenant or warranty, . express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof . Any such sale or sales made under or by virtue of this Section under the power of sale herein granted shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law or in equity against the Trustor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under the Trustor . (d) The purchase money, proceeds or avails of any sale made upon or by virtue of this Section , together with any other sums which then may be held by the Trustee or the Beneficiary under this Deed of Trust whether under the provisions of this Section or otherwise, shall be applied as follows : FIRST: To the payment of the costs and expenses of such sale, including reasonable compensation to the Trustee, its agents and counsel, and of any judicial proceedings wherein the same may be made , and of all expenses , liabilities and advances made or incurred by the Trustee or the Beneficiary under this Deed of Trust and all taxes or assessments , except any taxes , assessments or other charges subject to which the Premises shall have been sold. SECOND: To the payment of the whole amount then due, owing or unpaid with respect to the Second Installment Sale Agreement for principal interest, prepayment premiums and late charges as stated in the Second Installment Sale Agreement. THIRD: To the payment of any other sums required to be paid by the Trustor pursuant to any provisions of this Deed of Trust or of the Second Installment Sale Agreement. FOURTH: To the payment of the surplus , if any, to whomsoever may be lawfully entitled to receive the same. (e) Upon any sale made upon the power of sale granted under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Premises or any part thereof and in lieu of paying cash therefor may offset the bid (s) to the extent of the total amount due hereunder including the Trustee' s fees and expenses . The Beneficiary upon so -9- acquiring the Premises , or any part thereof shall be entitled • to hold, lease, rent , operate, manage and sell the same in any manner provided by applicable laws . (f) No remedy herein conferred upon or reserved to the Trustee or the Beneficiary is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this instrument to the Trustee or the Beneficiary, or to which either of them may be otherwise entitled, may be exercised from time to time and as often as may be deemed expedient by the Trustee or the Beneficiary, and either of them may pursue inconsistent remedies . If there exists additional security for the performance of the obligations secured hereby, the Beneficiary, at its sole option and without limiting or affecting any rights or remedies hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder either concurrently with whatever other rights it may have in connection with such other security or in such order as it may determine. 2 .03 Limitation on Trustor ' s Liability . Notwithstanding the foregoing, or any other provision in this Deed of Trust or any other agreement, instrument or document, neither the Trustor nor any present or future partner of the . Trustor, nor any present or future individual general partner of any partnership which is now or hereafter a general partner of the Trustor shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement, instrument or document made, entered into or given under or in connection with or pursuant to this Agreement ( including , without limitation , the certificates given by the Trustor pursuant to the provisions hereof ) , or any amendment or amendments to any of the foregoing made at any time or times , heretofore or hereafter, and the Agency and the Beneficiary hereby waive any and all such personal liability. Upon the occurrence of an Event of Default, neither the Beneficiary nor the Agency shall have the right to proceed directly against the Trustor, or any of its present or future partners (or partners of partners ) ; nor shall the Beneficiary or the Agency have the right to obtain a deficiency judgment after foreclosure. The limitation of liability provided in this paragraph is in addition to , and no in limitation of, any limitation on liability applicable to the Trustor provided by law or by any other agreement, instrument or document. -10- ARTICLE III . MISCELLANEOUS AND CONDITIONS It is further agreed that: 3 .01 Assignment of Beneficiary's Interest. The Trustor acknowledges and agrees that the interest of the Beneficiary under this Deed of Trust shall be assigned by the Beneficiary to either Industrial Indemnify Company (the "Surety" ) or The Edward J. DeBartolo Corporation (the "Guarantor" ) pursuant to the terms of either the Trust Agreement or that certain Guaranty Agreement of even date herewith given by the Guarantor to the Trustee, in the event of a payment by the Surety to the Beneficiary under the Surety Bond (as such term is defined in the Trust Agreement) arising from an event of default under the Second Installment Sale Agreement. Upon any such assignment, all right, title and interest of the Beneficiary hereunder shall be vested in the Surety or the Guarantor , as the case may be, without the requirement for any notice of such assignment to the Trustor. 3 . 02 Acceptance of Trust , Notice of Indemnification. The Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, becomes a public record as provided by law. The Trustee is not obligated to notify any party hereto of any pending , sale under any other Deed of Trust or of any action or proceeding in which the Trustor , the Beneficiary or the Trustee shall be a party unless the Trustee brings such action . The Trustee shall not be obligated to perform any act required of it hereunder unless the performance of such act is requested in writing and the Trustee is reasonably indemnified against loss, cost, liability and expense. 3 . 03 Powers of Trustee . From time to time written request of the Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability, if any, of any person for payment of any indebtedness or performance of the obligations secured hereby, the Trustee may, without liability therefor and without notice: reconvey all or any part of the Premises; consent to the making of any map or plat thereor; join in granting any easement thereon; join in any declaration of covenants and restrictions ; or join in any extension agreement or any agreement subordinating the lien or charge hereof. The Trustee or the Beneficiary may from time to time apply in any court of competent jurisdiction for aid and direction in the execution of the trusts hereunder and the enforcement of the rights and remedies available hereunder, -11- and the Trustee or the Beneficiary may obtain orders or decrees directing or confirming or approving acts in the execution of said trusts and the enforcement of said remedies . The Trustee has no obligation to notify any party of any pending sale or any action or proceeding unless held or commenced and maintained by the Trustee under this Deed of Trust . The Trustor shall pay to the Trustee reasonable compensation and reimbursement for services and expenses in the administration of the trusts created hereunder , including reasonable attorneys ' fees . . The Truster indemnifies the Trustee and the Beneficiary against all losses , claims , demands , and liabilities which either may incur , suffer, or sustain in the execution of the trusts created hereunder or in the performance of any act required or permitted hereunder or by law unless such losses , claims, demands or liabilities result from the wrongful act or neglect of the Trustee or the Beneficiary. 3.04 Substitution of Trustee . From time to time , by a writing signed and acknowledged by the Beneficiary and filed for record in the Office of the Recorder of the County in which the Premises are situated , the Beneficiary may appoint another trustee to act in the place and stead of the Trustee or any successor. Such writing shall refer to this Deed of Trust and set forth the date , book and page of its i recordation . The recordation of such instrument of substitution shall discharge the Trustee herein named and shall appoint the new trustee as the trustee hereunder with the same effect as if originally named the Trustee herein. A writing recorded pursuant to the provisions of this paragraph shall be conclusive proof of the proper substitution of such new trustee . 3 .05 Reconveyance . Upon written request of the Beneficiary stating that all sums secured hereby have been paid and upon surrender to the Trustee of this Deed of Trust and the Second Installment Sale Agreement secured hereby for cancellation and retention and upon payment of its fees, the Trustee shall reconvey , without warranty , the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof . The grantee in such reconveyance may be described as "the person or persons legally entitled hereto" . 3 .06 Dedication of Road Improvements . Beneficiary acknowledges that the Trustor is constructing certain roadway improvements upon portion of the Premises and that upon the completion thereof , such improvements shall be conveyed and dedicated to the City of Palm Springs , California as a public right of way . Beneficiary consents to i —12— such conveyance and dedication, and agrees to cause the Trustee to reconvey , without warranty , such portions of the Premises as may be necessary to effect such conveyance and dedication . 3 .07 Marshalling of Assets . The Truster on its own behalf and on behalf of its successors and assigns of any portion of the Premises , and of future lienholders on any future estate or interest of the Trustor hereunder hereby expressly waives all rights to require a marshalling of assets by the Trustee or the Beneficiary or to require the Trustee or the Beneficiary to first resort to the sale of any portion of the Premises which might have been retained by the Truster before foreclosing upon and selling any other portion as may be conveyed by the Trustor subject to this Deed of Trust . 3 .08 Non-Waiver. By accepting payment of any sum secured hereby after its due date or late performance of any indebtedness secured hereby , the Beneficiary shall not waive its right against any person obligated directly or indirectly hereunder or on any indebtedness hereby secured , either to require prompt payment when due of all other sums so secured or to declare default for failure to make such prompt payment . No exercise of any right or remedy by the Trustee or the Beneficiary hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law . No delay or omission of the Trustee or the Beneficiary in the exercise of any right , power or remedy accruing hereunder or arising otherwise shall impair any such right , power or remedy, or be construed to be a waiver of any default or acquiescence therein . Receipt of rents , awards and any other monies or evidences thereof , pursuant to the provisions of this Deed of Trust and any disposition of the same by the Trustee or the Beneficiary shall not constitute a waiver of the power of sale or right of foreclosure by the Trustee or the Beneficiary in the event of default or failure of performance by the Truster of any covenant or agreement contained herein or any note secured hereby. 3 .09 Rules of Construction . When the identity of the parties hereto or other circumstances make it appropriate , the masculine gender includes the feminine and/or neuter and vice versa , and the singular number includes the plural . The headings of each paragraph are for information and convenience only and do not limit or construe the contents of any provision hereof . -13- . 3 . 10 Severability . If any term of this Deed of Trust or the application thereof to any person or circumstances , shall , to any extent , be invalid or unenforceable , the remainder of this Deed of Trust, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable , shall not be affected thereby , ana each term of this Deed of Trust shall be valid and enforceable to the fullest extent permitted by law. 3 . 11 Successors in Interest . This Deed of Trust applies to , inures to the benefit of , and is binding not only on the parties hereto, but on their heirs , executors , administrators , successors and assigns . All obligations of the Trustor hereunder are joint and several . The term "the Beneficiary" shall mean and include all successors to the original Beneficiary herein named , as trustee under the Trust Agreement . The Beneficiary agrees to provide notice thereof to the Trustor in the manner provided herein for giving notice . 3 . 12 Notices . The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to said the Trustor at its address hereinabove set forth. All other notices to be given pursuant to this Deed of Trust shall be sufficient if mailed postage prepaid , certified or registered mail , return receipt requested, to the above-described addresses of the parties hereto , or to such other address as a party may request in writing . Any time period provided in the giving of any notice hereunder shall commence upon the date such notice is delivered; provided that if such delivery is refused , such notice shall be deemed delivered seventy-two ( 72 ) hours after deposit in the United States Mail . Any notice , certificate or communication required to be given hereunder to the Surety shall be sufficiently given and shall be deemed given on the second business day following the date on which the same shall have been mailed by certified mail , postage prepaid , addressed to the Surety at 225 California Street, San Francisco , California 94111 , Attention : Financial Guarantees . 3 . 13 Modifications . This Deed of Trust may not be amended, modified or changed nor shall any waiver of any provision hereof be effective , except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change , modification or discharge is sought . 3. 14 Governing Law. This Deed of Trust shall be construed according to and governed by the laws of the State of California . -14- 3. 15 Trust Irrevocable . This Deed of Trust is irrevocable by the Trustor. 3 .16 Counterparts . This Deed of Trust may be executed in several counterparts , each of which shall be deemed an original , and all such counterparts shall constitute one and the same instrument. IN WITNESS WHEREOF , the Trustor has caused this instrument to be executed as of the date tirst above written. TRUSTOR: SOUTH P A ASSOCIATES By : p/ Dav um, G eralL Partner of South Plaza Associates by: � )'N �f T /�% erson I. Fox, Generar Partner F of South Plaza Associates , by David Blum, his Attorney- in-Fact By: DESERT FASHION PLAZA, INC . , an Ohio corporation, as General Partner of North Plaza ssociatess By : Richard S. Sokolov Vice President gy: �L Arthur D. Wo fcal , jr Secretary -15- BENEFICIARY : SECURITY PACIFIC NATIONAL BANK By : '1 By : STATE OF OW ) COUNTY OF -5I 1 l f{rE � SS: On S /tjti(� p�(), 1984 , before me , the undersigned, a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person that executed this instrument on behalf of SOUTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official 1 . Signature STATE OF A //� ) SS: COUNTY OF Aq C�tl( C ) On y4L1 "n , 1984 , before me , the undersigned , a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of SOUTH PLAZA ASSOCIATES , and acknowledged to me that such partnership executed it . WITNESS my hand and official se 1 . Signature i -16- STATE OF OHIO ) SS: COUNTY OF MAHONING) On this / day of September, 1984, before me , a Notary Public , in and for said State , personally appeared Richard S . Sokolov and Arthur D. Wolfcale , jr. , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary , respectively , of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or provea to me on the basis of satisfactory evidence) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of SOUTH PLAZA ASSOCIATES. WITNESS my hand and official seal . Signature DENISE A. YAVORSKY, Notary Pu8!,c,/ State of Ohio My Commission Expires October 14, 198.E . STATE OF TEXAS ) SS : COUNTY OF ) On this day of September, 1984 , before me , a Notary Public , in and for said State, personally appeared and personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as and , respectively, of SECURITY PACIFIC NATIONAL BANK , the corporation therein named , ana who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the and , respectively, of such corporation, and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors . WITNESS my hand and official seal . Signature -17- BENEFICIARY : SECURITT/Y PAC�I"FIC NATIONAL BANK Ass istan Vice President By : � � ASSisTani becretary STATE OF ) SS: COUNTY OF ) On 1984, before me , the undersigned , a Notary Public in and for said State , personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person that executed this instrument on behalf of SOUTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official seal . Signature STATE OF ) SS : COUNTY OF ) On , 1984 , before me , the undersigned , a Notary Public in and for said State , personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of SOUTH PLAZA ASSOCIATES , and acknowledged to me that such partnership executed it . WITNESS my hand and official seal . Signature r -16- STATE OF OHIO ) • ) 5S : COUNTY OF MAHONING) On this day of September, 1984 , before me , a Notary Public , in and for said State , personally appeared Richard S. Sokolov and Arthur D. Wolfcale , jr. , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary , respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or proved to me on the basis of satisfactory evidence ) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , ana that such action was taken as a general partner on behalf of SOUTH PLAZA ASSOCIATES. WITNESS my hand and official seal . Signature STATE OF CALIFORNIA SS LINTY OF Los Angeles T On Septarber 19, 1984 ,before me, the undersigned,a Notary Public in and for said State,personally appeared r. Qrnt is B. Dillard personally known to me or proved to me I on the basis of satisfactory evidence to be the SSj Ctant Vice President,and Sandra L ss known to me to be the Resistant Secretary of the Corporation that executed the within Instrument, known to me to be the persons )p who executed the within Instrument on behalf of the Corporation therein named,and acknowledged to me that such Corporation executed the same,and acknowledged to me that such Corporation executed the within Instrument pursuant to its by-laws or a resolution of its board of directors W ITNESS my hand and official seal. OFFICIAL SFF�_L _ - ' (Seal) ,",�✓'_,� t• ,r_. �'� r 4 �,°�'';; J,i:r �`�J NGTARY PUuLIC-GALIFORNIA -��<5;�,;y.17 LGF.Li�CzE!ES CGUidI( (Notary Public's Signai rel f�-;,�y� My Commission Fxpiroa Apol 10,5�55 023077 9-82* 2a Ps Corporation Notarial Acknowledgment exp-cUted the within instrument pursuant to its laws or a -'resolution of its Board of Directors . WITNESS my hand and official seal . Signature —17— PARCEL 12: THAT PORTION OF BLOCK 9, BLOCK 14, BLOCK 21 , AND A PORTION OF PALM AVENUE ( NOW ABANDONED ) AND ORANGE AVENUE (NOW ABANDONED ) , AS PER MAP RECORDED IN BOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND PARCEL MAP RECORDED IN BOOK 1 PAGE 17 OF PARCEL MAPS, PARCEL. MAP RECORDED IN BOOK 1 PAGE 49 OF PARCEL MAPS, PARCEL M F. RECORDED IN BOOK 2 PAGE 89 OF PARCEL MAPS, PARCEL MAF' RG ORDCD IN BOOK 7 PAGE B4 OF PARCEL MAPS, ALL RECORDS OF RIVERSIDE COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID PLUCK 21 ; THENCE.. SOUTH 89° 50' WEST ALONG THE SOUTH LINE OF SAID PLUCK 21 , A DISTANCE OF 20.00 FEET; THENCE NORTH 00. 08 ' WEST AND PARALLEL 10 THE EAST LINE OF SAID PLUCK 21 , A DISTANCE OF 20.79 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 006 OB ' WEST , A DISTANCE OF 473.00 FEET 10 THE BEGINNING OF A TANGENT CURVE CONCAVE SDUIHWESIERL.Y, HAVING A RADIUS OF 20.00 FEET'; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL.. ANGLE OF 90. 02' 00' AND A LENGTH OF 31 .43 FEET ; THENCE TANGENT, SOUTH 09" SO' WEST, A DISTANCE OF 203.53 FEET; THENCE NORTH 00. 00 , WEST, A DISTANCE OF 5. 00 FEET; THENCE SOUTH 89^ 50, WEST, A DISTANCE_ OF 382.51 FEET 10 THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OE 20.00 FEET; THENCE_ SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 090 50' 00' AND A LENGTH OF 31 .41 FEET; THENCE TANGENT, SOUTH 00. 00 , EAST, A DISTANCE OF 496 . 00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE C7 90" 02 ' 00' AND A LENGTH OF 31 .43 FEET ; THENCE TANGENT NORTH 890 50' EAST , A DISTANCE OF 668.04 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 18.00 FEET; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 89^ 50 ' 00 ' AND A LENGTH OE 28.26 FEET TO THE TRUE. POINT OF BEGINNING. TEF11/wpl-9/17/84 RECORDING REQUESTED BY: When Recorded Return To: Jones , Hall, Hill & White A Professional Law Corporation Four Embarcadero Center San Francisco , California 94111 Attention: Chares F . Adams , Esq. DEED OF TRUST THIS DEED OF TRUST (hereinafter referred to as the "Deed of Trust" ) , made as of September 1 , 1984, by and between PRATT/NORTH PLAZA ASSOCIATES, a California general partnership, whose address is 4099 McEwen , Suite 800 , Dallas, Texas 75234 ( hereinafter referred to as "Trustor" ) , TRANSAMERICA TITLE INSURANCE COMPANY (hereinafter reterred to as "Trustee" ) and SECURITY PACIFIC NATIONAL BANK , a California corporation, as trustee , whose address is 333 South Hope Street, Los Angeles, California 90071 , Attention: Corporate Trust Department ( hereinatter, together with its successors and assigns , referred to as the "Beneticiary " ) ; W I T N E; S S E T H: That for good and valuable consideration , including , without limitation , the benefit of certain proceeds to be disbursed by the Beneticiary pursuant to the "Trust Agreement" described below, and to secure ( i ) payment of the purchase price, together with interest thereon, payable to the Community Redevelopment Agency of the City of Palm Springs ( the "Agency" ) , as seller, by the Trustor, as purchaser, pursuant to the Second Installment Sale Agreement by and between the Agency and the Trustor of even date herewith ( the "Second Installment Sale Agreement" ) , the rights in which have been assigned to Desert Fashion Plaza , Inc. , an Ohio corporation ( the "Seller" ) pursuant to that certain Second Assignment Agreement from the Agency to the Seller of even date herewith ( the "Second Assignment" ) , and which have been further assigned by the Seller to the Beneficiary, as trustee for the benefit of the owners of the $ 23 , 250 , 000 principal amount of Certificiates of Participation (the "Certificates" ) executed and delivered pursuant to the Trust Agreement of even date herewith ( "Trust Agreement" ) by and among the Beneficiary , the Agency and the Seller, pursuant to the First Assignment, ( ii ) any other indebtedness by the Trustor to the Trustee or the Beneficiary arising under the terms hereof , the Second Assignment or in any other instrument constituting additional security for the -1- . aforementioned obligations , ( iii ) every obligation contained in this Deed of Trust , in any agreement modifying this Deed of Trust , and in any other instrument now or hereafter securing any indebtedness secured by this Deed of Trust , ( iv ) performance of all obligations of the Trustor unaer the Second Installment Sale Agreement and the Second Assignment as all of the above may hereafter be modified and as the rate of interest on any payments shall be adjusted as set forth in the foregoing documents , the Trustor does hereby irrevocably grant, bargain, sell , and convey unto the Trustee , in trust , with power of sale , the property described in Exhibit A attached hereto and made a part hereof , which , together with the Trustor' s interest in the buildings and improvements now or hereinafter to be constructea thereon , is referred to herein as the "Premises" ; TOGETHER WITH : ( a ) All buildings and improvements of Trustor, now or hereafter located on the land described in Exhibit A hereto, all privileges and other rights now or hereafter made appurtenant thereto including , without limitation, all right, title and interest of the Trustor in and to all streets , roads and public places , opened or proposed and all easements and rights of way , public or private, now or hereafter used in connection with the Premises ; and (b) All judgments, awards of damages and settlements hereafter made as a result of or in lieu of any taking of the Premises or any part thereof or interest therein under the power of eminent domain, or for any damage (whether caused by such taking or otherwise) to the Premises or the improvements thereon or any part thereof or interest therein, including any award for change of grade of streets ; subject , however, to the obligation of the Beneficiary to make such proceeds available to Trustor for the purposes set forth in Article VII of the Trust Agreement ; and (c) All proceeds of the conversion, voluntary or involuntary or any of the foregoing into cash or liquidated claims ; and (d ) All interest and right of the Trustor in, to and under the Second Installment Sale Agreement. TO HAVE AND TO HOLD UPON THE FOLLOWING EXPRESS TRUSTS : PROVIDED, HOWEVER, that if the Trustor shall fully pay or cause to be paid to the Beneficiary the principal and interest with respect to the Second Installment Sale -2- Agreement, and any prepayment, premium and late charges , if any, to become due thereupon at the time and in the manner stipulated therein, and shall pay or cause to be paid all other sums payable hereunder and all indebtedness hereby secured, and shall keep and perform or cause to be kept and performed all and singular the covenants contained herein and in the Second Installment Sale Agreement and the Second Assignment then , in such case , the estate , right , title and interest of the Beneficiary in the Premises shall cease , determine and become void and upon proof being given to the satisfaction of the Beneficiary that all such payments have been paid or satisfied , and upon payment of all amounts payable under all of such documents, and upon payment of all fees , costs, charges , expenses and liabilities chargeable or incurred or to be incurred by the Beneficiary , and of any other sums as herein provided, the Beneticiary shall, upon receipt of the written request of the Trustor, cause this Deed of Trust to be cancelled, released and discharged and marked satisfied of record and shall cause the Trustee to reconvey the Premises and every interest of the Trustee therein unto the Trustor. ARTICLE I TROSTOR' S COVENANTS The Trustor covenants and agrees with the Trustee and the Beneficiary that: 1 .01 Title . The Trustor warrants that it has good and marketable title to a leasehold estate in the real estate described in Exhibit A, subject to no liens , charges or encumbrances (other than Permitted Encumbrances as defined herein or in the Trust Agreement , including but not limited to Permitted Encumbrances to which this Deed of Trust may be subordinated pursuant to Section 1 . 20 ) ; that the Trustor has full power and authority to grant, bargain, sell and convey the Premises in the manner and form herein done or intended hereafter to be done ; that this Deed of Trust is and shall remain a valid and enforceable lien on the Premises subject only such Permitted Encumbrances ; that the Trustor and its successors and assigns shall warrant and defend the same torever against the lawful claims and demands of all persons whomsoever, and that this covenant shall not be extinguished by any exercise of power of sale , foreclosure or sale hereof but shall run with the land. The Trustor shall, at the cost of the Trustor, and without expense to the Beneficiary do, execute , acknowledge i —3— and deliver all and every such further acts , deeds , conveyances , deeds of trust , assignments , notices of assignments , transfers and assurances as shall be reasonably necessary for the assuring , conveying , assigning , transferrring and contirming unto the Trustee or the Beneficiary the property and rights hereby conveyed or assigned or intended now or hereafter so to be , or which the Trustor may be or may hereafter become bound to convey or assign to the Trustee or the Beneticiary , or for carrying out the intention of facilitating the performance of the terms of this Deed of Trust provided that' the same do not increase the substantive obligations of Trustor, in any material respect from those obligations set forth in the Second Installment Sale Agreement or this Deed of Trust , or for filing , registering or recording this Deed of Trust. The Trustor, forthwith upon the execution and delivery of this Deed of Trust shall cause this Deed of Trust to be recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon , and the interest of the Trustee or the Beneficiary in , the Premises . The Trustor shall pay all filing , registration or recording fees , and all expenses incident to the preparation, execution and acknowledgment of this Deed of Trust , any deed of trust supplemental hereto, and any instrument of further assurance , and all federal , state, county and municipal stamp taxes and other taxes , duties , imposts , assessments and charges arising out of or in connection with the execution and delivery of the Second Installment Sale Agreement , this Deed of Trust , any deed of trust supplemental hereto, or any instrument of further assurance. The Trustor, and each of its general partners and general partners of general partners , if any , if any be a corporation, partnership, limited partnership, or other legal entity shall, so long as it is owner of the Premises or of an interest in the Trustor or a general partner of the Trustor, do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges as a legal entity under the laws of the state of its formation and shall comply with all regulations , rules , ordinances, statutes , orders and decrees of any governmental authority or court applicable to such entity or to the Premises or any part thereof. 1 .02 Payment of Indebtedness . The Trustor shall promptly and punctually pay all principal and interest, prepayment premium, and all other sums to become due in respect of the Second Installment Sale Agreement and any other indebtedness hereby secured , according to the true intent and meaning thereof. —4— 1 .03 Casualtv . The Trustor shall promptly notify the Beneficiary and the Surety of any loss whether covered by insurance or not . The Net Proceeas of such insurance shall be paid to the Beneficiary deposited in the Insurance and Condemnation Fund established under the Trust Agreement and applied pursuant to and in accordance with Article VII of the Trust Agreement . 1.04 Condemnation . The Trustor, immediately upon obtaining knowledge or the institution of any proceeding for the condemnation of the Premises or any portion thereof , shall notify the Beneficiary ana the Surety of the pendency thereof . The Trustor hereby assigns , transfers and sets over unto the Beneficiary all compensation , rights of action, the entire proceeds of any award and any claim for damages for any of the Premises taken or damaged under the power of eminent domain or by condemnation or by sale in lieu thereof which proceeds shall be deposited by the Beneficiary in the Insurance and Condemnation Fund establishea under the Trust Agreement and applied pursuant to and in accordance with Article VII of the Trust Agreement . The Trustor agrees to execute such further assignments of any compensation , award , damages , right of action and proceeds , as the Beneficiary may reasonably require . • 1.05 Liens ana Encumbrances . The Trustor shall pay when due all lawrul ooligations , claims or demands of any person which , if unpaid , might result in, or permit the creation of , a lien or encumbrance on the Premises or on the rents , issues , income ano profits arising therefrom, whether such lien would be senior or subordinate hereto , including , but without limiting the generality of the foregoing , all rightful claims of mechanics , materialmen, laborers and others for work or labor performed , or materials or supplies furnished in connection with any work of demolition , alteration, improvement of or construction upon the Premises . The Trustor reserves the right to contest the validity of any such lien or claim, providea that Trustor shall post a Statutory Lien Release Bond as provided by law. 1 .06 Taxes and Assessments . The Trustor will pay or cause to be paid, as the same respectively become due , all taxes and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Premises or any modification, improvement or addition to the Premises or any interest therein ( including the Beneficiary 's interest) or the rentals and revenues derived therefrom or hereunder; and all assessments and charges lawfully made by any governmental body for public improvements that may be secured by a lien on the Premises; provided that with respect to special assessments or other • —5— governmental charges that may lawfully be paid in installments over a period of years , the Trustor shall be obligated to pay only such installments as are required to be paid during the term of this Deed of Trust . The Trustor may , at its expense and in its good name, in good faith contest any such taxes , assessments and other charges and , in the event of any such contest , may permit the taxes , assessments or other charges so contested to remain unpaid during the period of such contest and any appeal theretrom. In the event that the Trustor shall fail to pay any of the foregoing items .required by this paragraph 1 .06 to be paid by the Trustor, the Agency, the beneficiary or the Surety , after ten ( 10 ) days prior written notice to Trustor, may (but shall be under no obligation to ) pay the same and any amounts so advanced therefor by the Agency , the Beneficiary or the Surety shall become an additional obligation of the Trustor to the party making the advancement , which amounts, together with interest thereon at the respective rates borne by the outstanding Certificates , the Trustor agrees to pay. 1 .07 Sale of Premises . The Trustor agrees that the Premises or any part thereot or interest therein may be sold, assigned , transferred , further encumbered , conveyed or otherwise alienated by the Trustor pursuant to and in . accordance with the provisions of the Second Installment Sale Agreement and other applicable provisions of this Deed of Trust. No change in ownership or transfer of any interest in the Premises , no forbearance on the part of the Beneficiary or the Surety, no extension of the time for the payment of the Deed of Trust indebtedness or any change in the terms thereof consented to by the Beneficiary or the Surety shall in any way whatsoever operate to release , discharge , modify, change or atfect the original liability of the Trustor herein, either in whole or in part , except as provided in the Second Installment Sale Agreement or this Deed of Trust. Any deed conveying the Premises , or any part thereof , shall provide that the grantee thereunder assumes and agrees to pay all of the grantor' s obligations hereunder or hereby secured and all other instruments or agreements evidencing or securing the repayment of the Deed of Trust indebtedness subject to the terms and conditions of this Deed of Trust. In the event any deed of transferring ownership of or an interest in the Premises shall not contain such assumption and agreement to pay , the grantee under such deed shall nevertheless be conclusively deemed to have assumed and agreed to pay such obligations by acquiring the Premises or such portion thereof subject to this Deed of Trust. 1 .08 Estoppel Certificates . The Trustor and the • Beneficiary, as the case may be , within ten ( 10 ) days after -6- written request, shall furnish a duly acknowledged written statement setting forth the amount of the debt secured by this Deed of Trust , and stating either that no setoffs or defenses exist against the Deed of Trust debt , or, if such setoffs or defenses are alleged to exist, the nature thereof . 1 .09 Future Liens . The Beneficiary and the Trustee acknowledges that the Premises are part of the renovation and expansion of the Desert Fashion Plaza Shopping Center (the "Development" ) and that in order to facilitate the conststruction and operation of the Development, the Trustor, South Plaza Associates and North Plaza Associates will , from time to time , execute `and deliver deeds of trust, mortgages , financing statements , easements , leases , assignments of rents and assignments of leases (hereinafter collectively referred to as "Encumbrances" ) each of which may create legal and beneficial interests in the Premises covered by this Deed of Trust. It is the intention of the Trustor, Trustee, the Beneficiary, and the Surety that this Deed of Trust shall be subordinate to all such Encumbrances, whether now or hereafter created . Without limitation of the foregoing , such parties specifically agree that this Deed of Trust shall be , without further act by the Trustee , the Beneficiary , or the Surety , subordinate to: (a ) any deed of trust and related instruments securing a construction loan to the Developer by Goldome Realty Credit Corporation or an affiliate thereof ; (b) any lease by the Trustor to Federated Department Stores , Inc. , or an affiliate thereof ; ( c ) any lease by the Trustor to Saks & Company or an affiliate thereof ; (d) the Easement and Operating Agreement to be entered into by and between Trustor , North Plaza Associates and South Plaza Associates . The Trustee and the Beneficiary agree to execute and deliver such subordination and nondisturbance agreements as the Trustor may reasonably request in conjunction with the foregoing Encumbrances and such other Encumbrances as may be created from time to time in conjunction with the Development within ten ( 10 ) days after receipt of written request therefor. If the Trustee or Beneficiary shall fail to comply with this requirement within the time permitted therefor, the Trustor shall be authorized to execute such instruments in the name of the Trustee or Beneficiary, as the case may be , and the Trustee and Beneficiary each appoint Trustor as their attorney in fact for such purpose . -7- ARTICLE II DEFAULT It is mutually agreed that: 2 .01 Events of Default . Any event of detault under and as defined in the Second Installment Sale Agreement which Trustor shall have failed to cure within the time permitted therefor shall be deemed to be and shall constitute an event of default under this Deea of Trust (an "Event of Default" ) . 2 .02 Remedies . ( a ) Upon and after such Event of Default , the Beneficiary without further demand on the Trustor may, ( i ) institute proceedings for the complete or partial foreclosure of this Deed of Trust ; or ( ii ) apply to any court or competent jurisdiction for the appointment of a receiver or receivers for the Premises and of all the earnings, revenues , rents, issues , profits and income thereof ; ( iii ) take such steps to protect and enforce its rights whether by action, suit or proceeoing in equity or at law for the specific performance of any covenant , condition or agreement in the Second Installment Sale Agreement , or in aid of the execution of any power herein granted, or for any foreclosure hereunder , or for the enforcement of any other appropriate legal or equitable remedy or otherwise as the Beneficiary shall elect. (b) The Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale , and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement; and , except as otherwise provided by any applicable provision of law, the Trustee, without further notice or publication , may make such sale at the time and place to which the same shall be so postponed. (c) Upon the completion of any sale or sales made by the Trustee under or by virtue of this Section, the Trustee shall execute and deliver to the accepted purchaser or purchasers a good and sufticient instrument , or good and sufficient instruments, conveying , assigning and transferring all estate, right, title and interest in and to the property —8— and rights sold, but without any covenant or warranty, express or implied. The recitals in such deed of, any matters or facts shall be conclusive proof of the truthfulness thereof . Any such sale or sales made under or by virtue of this Section under the power of sale herein granted shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law or in equity against the Trustor and against any and all persons claiming or who may claim the same , or any part thereof from, through or under the Trustor . (d) The purchase money, proceeds or avails of any sale made upon or by virtue of this Section, together with any other sums which then may be held by the Trustee or the Beneficiary under this Deed of Trust whether under the provisions of this Section or otherwise, shall be applied as follows : FIRST: To the payment of the costs and expenses of such sale, including reasonable compensation to the Trustee, its agents and counsel , and of any judicial proceedings wherein the same may be made , and of all expenses , liabilities and advances made or incurred by the Trustee or the Beneficiary under this Deed of Trust and all taxes or assessments , except any taxes , assessments or other charges subject to which the Premises shall have been sold. SECOND: To the payment of the whole amount then due, owing or unpaid with respect to the Second Installment Sale Agreement for principal interest, prepayment premiums and late charges as stated in the Second Installment Sale Agreement. THIRD: To the payment of any other sums required to be paid by the Trustor pursuant to any provisions of this Deed of Trust or of the Second Installment Sale Agreement. FOURTH: To the payment of the surplus , if any, to whomsoever may be lawfully entitled to receive the same. (e) Upon any sale made upon the power of sale granted under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Premises or any part thereof and in lieu of paying cash therefor may offset the bid(s ) to the extent of the total amount due hereunder including the Trustee' s fees and expenses . The Beneficiary upon so -9- acquiring the Premises , or any part thereof shall be entitled • to hold, lease, rent, operate, manage and sell the same in any manner provided by applicable laws . (f) No remedy herein conferred upon or reserved to the Trustee or the Beneficiary is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute . Every power or remedy given by this instrument to the Trustee or the Beneficiary, or to which either of them may be otherwise entitled, may be exercised from time to time and as often as may be deemed expedient by the Trustee or the Beneficiary, and either of them may pursue inconsistent remedies . If there exists additional security for the performance of the obligations secured hereby, the Beneficiary, at its sole option and without limiting or affecting any rights or remedies hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder either concurrently with whatever other rights it may have in connection with such other security or in such order as it may determine. 2 .03 Limitation on Trustor ' s Liability . Notwithstanding the foregoing, or any other provision in this Deed of Trust or any other agreement, instrument or document, neither the Trustor nor any present or future partner of the Trustor, nor any present or future individual general partner of any partnership which is now or hereafter a general partner of the Trustor shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement, instrument or document made, entered into or given under or in connection with or pursuant to this Agreement ( including , without limitation , the certificates given by the Trustor pursuant to the provisions hereof ) , or any amendment or amendments to any of the foregoing made at any time or times , heretofore or hereafter, and the Agency and the Beneficiary hereby waive any and all such personal liability. Upon the occurrence of an Event of Default, neither the Beneficiary nor the Agency shall have the right to proceed directly against the Trustor, or any of its present or future partners (or partners of partners ) ; nor shall the Beneficiary or the Agency have the right to obtain a deficiency judgment after foreclosure. The limitation of liability provided in this paragraph is in addition to, and no in limitation of, any limitation on liability applicable to the Trustor provided by law or by any other agreement, instrument or document. • -10- ARTICLE III MISCELLANEOUS AND CONDITIONS It is further agreed that: 3 .01 Assignment of Beneficiary' s Interest. The Trustor acknowledges and agrees that the interest of the Beneficiary under this Deed of Trust shall be assigned by the Beneficiary to either Industrial Indemnify Company (the "Surety" ) or The Edward J. DeBartolo Corporation (the "Guarantor" ) pursuant to the terms of either the Trust Agreement or that certain Guaranty Agreement of even date herewith given by the Guarantor to the Trustee, in the event of a payment by the Surety to the Beneficiary under the Surety Bond (as such term is defined in the Trust Agreement) arising from an event of default under the Second Installment Sale Agreement . Upon any such assignment, all right, title and interest of the Beneficiary hereunder shall be vested in the Surety or the Guarantor, as the case may be, without the requirement for any notice of such assignment to the Trustor. 3 . 02 Acceptance of Trust Notice of Indemnification. The Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, becomes a public record as provided by law. The Trustee is not obligated to notify any party hereto of any pending, sale under any other Deed of Trust or of any action or proceeding in which the Trustor , the Beneficiary or the Trustee shall be a party unless the Trustee brings such action . The Trustee shall not be obligated to perform any act required of it hereunder unless the performance of such act is requested in writing and the Trustee is reasonably indemnified against loss , cost, liability and expense. 3. 03 Powers of Trustee . From time to time written request of the Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability, if any, of any person for payment of any indebtedness or performance of the obligations secured hereby, the Trustee may, without liability therefor and without notice: reconvey all or any part of the Premises; consent to the making of any map or plat thereor; join in granting any easement thereon; join in any declaration of covenants and restrictions ; or join in any extension agreement or any agreement subordinating the lien or charge hereof. The Trustee or the Beneficiary may from time to time apply in any court of competent jurisdiction for aid and direction in the execution of the trusts hereunder and the enforcement of the rights and remedies available hereunder, • -11- and the Trustee or the Beneficiary may obtain orders or decrees directing or confirming or approving acts in the execution of said trusts and the enforcement of said remedies . The Trustee has no obligation to notify any party of any pending sale or any action or proceeding unless held or commenced and maintained by the Trustee under this Deed of Trust . The Trustor shall pay to the Trustee reasonable compensation and reimbursement for services and expenses in the administration of the trusts created hereunder , including reasonable attorneys ' fees . The Trustor indemnifies the Trustee and the Beneficiary against all losses , claims , demands , and liabilities which either may incur , surfer, or sustain in the execution of the trusts created hereunder or in the performance of any act required or permitted hereunder or by law unless such losses, claims, demands or liabilities result from the wrongful act or neglect of the Trustee or the Beneficiary. 3 .04 Substitution of Trustee . From time to time , by a writing signed and acknowledged by the Beneficiary and filed for record in the Office of the Recorder of the County in which the Premises are situated , the Beneficiary may appoint another trustee to act in the place and stead of the Trustee or any successor. Such writing shall refer to this Deed of Trust and set forth the date , book and page of its recordation . The recordation of such instrument of substitution shall discharge the Trustee herein named and shall appoint the new trustee as the trustee hereunder with the same effect as if originally named the Trustee herein. A writing recorded pursuant to the provisions of this paragraph shall be conclusive proot of the proper substitution of such new trustee . 3 .05 Reconvevance . Upon written request of the Beneficiary stating--that all sums secured hereby have been paid and upon surrender to the Trustee of this Deed of Trust and the Second Installment Sale Agreement secured hereby for cancellation and retention and upon payment of its fees, the Trustee shall reconvey , without warranty , the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof . The grantee in such reconveyance may be described as "the person or persons legally entitled hereto" . 3 .06 Dedication or Road Improvements . Beneficiary acknowledges that the Trustor is constructing certain roadway improvements upon portion of the Premises and that upon the completion thereof , such improvements shall be conveyed and dedicated to the City of Palm Sprinys , California as a public right of way . Beneficiary consents to -12- such conveyance and dedication, and agrees to cause the Trustee to reconvey , without warranty , such portions of the Premises as may be necessary to effect such conveyance and dedication. 3 .07 Marshallinu of Assets . The Trustor on its own behalf and on behal of its successors and assigns of any portion of the Premises , and of future lienholders on any future estate or interest of the Trustor hereunder hereby expressly waives all rights .to require a marshalling of assets by the Trustee or the Beneficiary or to require the Trustee or the Beneficiary to first resort to the sale of any portion of the Premises which might have been retained by the Trustor before foreclosing upon and selling any other portion as may be conveyed by the Trustor subject to this Deed of Trust . 3 .08 Non-Waiver . By accepting payment of any sum secured hereby after its due date or late performance of any indebtedness secured hereby , the Beneficiary shall not waive its right against any person obligated directly or indirectly hereunder or on any indebtedness hereby secured , either to require prompt payment when due of all other sums so secured or to declare default for failure to make such prompt payment. No exercise of any right or remedy by the Trustee or the Beneficiary hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law. No delay or omission of the Trustee or the Beneficiary in the exercise of any right , power or remedy accruing hereunder or arising otherwise shall impair any such right , power or remedy , or be construed to be a waiver of any default or acquiescence therein. Receipt of rents , awards and any other monies or evidences thereof , pursuant to the provisions of this Deed of Trust and any disposition of the same by the Trustee or the Beneficiary shall not constitute a waiver of the power of sale or right of foreclosure by the Trustee or the Beneficiary in the event of detault or failure of performance by the Trustor of any covenant or agreement contained herein or any note secured hereby. 3.09 Rules of Construction . When the identity of the parties hereto or other circumstances make it appropriate, the masculine gender includes the feminine and/or neuter and vice versa , and the singular number includes the plural . The headings of each paragraph are for information and convenience only and do not limit or construe the contents of any provision hereof . 3 . 10 Severability . If any term of this Deed of Trust or the application thereof to any person or circumstances , shall , to any extent , be invalid or unenforceable , the remainder of this Deed of Trust , or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable , shall not be affected thereby, and each term of this Deed of Trust shall be valid and enforceable to the tullest extent permitted by law. 3 . 11 Successors in Interest . This Deed of Trust applies to , inures to the benetit of , and is binding not only on the parties hereto, but on their heirs , executors , administrators , successors and assigns . All obligations of the Trustor hereunder are joint and several. The term "the Beneficiary" shall mean and include all successors to the original Beneficiary herein named , as trustee under the Trust Agreement . The Beneficiary agrees to provide notice thereof to the Trustor in the manner provided herein for giving notice . 3 . 12 Notices . The Trustor requests that a copy of any notice of detault and of any notice of sale hereunder be mailed to said the Trustor at its address hereinabove set forth. All other notices to be given pursuant to this Deed of Trust shall be sufficient if mailed postage prepaid , certified or registered mail , return receipt requested, to the above-described addresses of the parties hereto , or to such other address as a party may request in writing . Any time period provided in the giving of any notice hereunder shall commence upon the date such notice is delivered ; provided that if such delivery is retused , such notice shall be deemed delivered seventy-two ( 72 ) hours after deposit in the United States Mail . Any notice , certificate or communication required to be given hereunder to the Surety shall be sufficiently given and shall be deemed given on the second business day following the date on which the same shall have been mailed by certified mail , postage prepaid , addressed to the Surety at 225 California Street, San Francisco , California 94111 , Attention : Financial Guarantees . 3 . 13 Modifications . This Deed of Trust may not be amended, modified or changed nor shall any waiver of any provision hereof be effective , except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change , modification or discharge is sought. 3 . 14 Governing Law. This Deed of Trust shall be construed according to and governed by the laws of the State of California . -14- 3. 15 Trust Irrevocable . This Deed of Trust is • irrevocable by the Trustor. 3 . 16 _Counterparts . This Deed of Trust may be executed in several counterparts, each of which shall be deemed an original , and all such counterparts shall constitute one and the same instrument. IN WITNESS WHEREOF , the Trustor has caused this instrument to be executed as of the date first above written. TRUSTOR: PRATT/NORTH PLAZA ASSOCIATES By : NORTH PLAZA ASSOCIATES, Gen 1 Partner By : David Blum, Gertli4ral Partner of North Plaza Associates By : E'� J . ' �� Gerson I . Fox, Gener Partner of North Plaza Associates , by David Blum, his Attorney- in-Fact By: DESERT FASHION PLAZA, INC. , an Ohio corporation, as General Partner of North Plaza ssociates By :_ Richard S. Sokolov Vice President By : Ar ur D. le , 3r Secretary Wol c • -15- BENEFICIARY: SECURITY PACIFIC NATIONAL BANK By : / By : STATE OFG1�1 TI ' ) COUNTY OF �(A/ � SS : On 1984, before me , the undersigned, a Notary Public in an for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person that executed this instrument on behalf of PRATT/NORTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official spa . Signature `y> STATE OF U� ) COUNTY OF SS:_ C ) On , 1984, before me , the undersigned , a Notary Pu lic in and for said State , personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence ) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of PRATT/NORTH PLAZA, ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official sea . . Signature -16- STATE OE' OHIO ) ) SS: COUNTY OF MAHONING) On this day of September, 1984 , before me , a Notary Public , in and for said State, personally appeared Richard S. Sokolov and Arthur D. Wolfcale , jr . , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary, respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executea the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of PRATT/NORTH PLAZA ASSOCIATES . WITNESS my hand and official seal . G� Signature / � Ul� � „��•� MNISE A. YAVORSKY, Noj ry Publ;c state ^f nhio --- My Commission Expires October 14, 1985 STATE OF TEXAS ) SS: COUNTY OF ) On this day of September, 1984, before me , a Notary Public, in and for said State, personally appeared and , personally known to me (or proven to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as and , respectively, of SECURITY PACIFIC NATIONAL BANK , the corporation therein named, and who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the and , respective y, o suc corporation, and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors . WITNESS my hand and official seal . Signature • -17- STATE OF' OHIO ) SS : COUNTY OF MAHONING) On this day of September, 1984 , before me , a Notary Public , in and for said State, personally appeared Richard S . Sokolov and Arthur D. Wolfcale , jr . , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary , respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or proved to me on the basis of satisfactory evidence) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of PRATT/NORTH PLAZA ASSOCIATES . WITNESS my hand and official seal . Signature MN15E A. YAVORSKY, NoAry Public 1/ state ^f nhio ___ My Commission Expires October 14, 1985 STATE OF TEXAS ) SS: COUNTY OF' ) On this day of September, 1984, before me , a Notary Public , in and for said State , personally appeared and , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as and , respectively, of SECURITY PACIFIC NATIONAL BANK, the corporation therein named, and who are personally known to be (or proved to me on the basis of satisfactory evidence ) to be the and respective y, o suc corporation, and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors. WITNESS my hand and official seal . Signature • -17- BENEFICIARY: SECURITY PACIFIC NATIONAL BANK By : Pis ant \ i By : Assistant STATE OF ) SS : COUNTY OF ) On , 1984, before me , the undersigned , a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person that executed this instrument on behalf of PRATT/NORTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official seal . Signature STATE OF ) SS: COUNTY OF ) On , 1984, before me , the undersigned, a Notary Public in and for said State, personally appeared David Blum, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, as the Attorney-in- Fact of Gerson I . Fox, and acknowledged to me that David Blum subscribed the name of Gerson I . Fox thereto as principal and his own name as Attorney-in-Fact that executed this instrument on behalf of PRATT/NORTH PLAZA ASSOCIATES, and acknowledged to me that such partnership executed it . WITNESS my hand and official seal . Signature -16- STATE OF OHIO ) ) SS: COUNTY OF MAHONING) On this day of September, 1984, before me , a Notary Public , in and for said State, personally appeared Richard S . Sokolov and Arthur D. Wolfcale , jr . , personally known to me (or proved to me on the basis of satisfactory evidence ) to be the persons who executed the within instrument as Vice President and Secretary, respectively, of DESERT FASHION PLAZA, INC . , the corporation therein named , and who are personally known to be (or proved to me on the basis of satisfactory evidence ) to be the Vice President and Secretary , respectively , of such corporation , and who acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors , and that such action was taken as a general partner on behalf of PRATT/NORTH PLAZA ASSOCIATES . WITNESS my hand and official seal . Signature STATE OF TEXAS ) STATE OF CALIFORNIA SS. COUNTY OF Los Angeles On $eDti r_19 1E ,before me, the undersigned,a Notary Public in and for said State,personally appeared Cynthia B. Dillard personally known to me or proved to me on the basis of satisfactor evidence to be the President,and Sandra Leess , y Assistant Assistant Vice known to me to be the Secretary of the Corporation that executed the within Instrument,known to me to be the persons who executed the within Instrument on behalf of the Corporation therein named,and acknowledged to me that such Corporation executed the same,and L acknowledged to me that such Corporation executed the within Instrument pursuant to its by-laws or a resolution of its board of directors. W ITNFeft$�m4(Beall ^vr� LOS iriVGELES COUNTY - c My Epmmmsipn Expires April 16,1955 (Notary Public's Sign urel 023077 9-82't 25 PS Corporation Notarial Acknowledgment v WITNESS my hand and official seal . Signature -17- EXHIBIT "A" Situated in the City of Palm Springs , County of Riverside and State of California and known as : Being all of Lots 1 to 14 inclusive, and all of Lots 30 to 36 inclusive, and portion of Lots 15 and 29, all in Block 22 , of Palm Springs, as shown by Map on file in Book 9, Page 432 of Maps , San Diego County Records , described as follows : BEGINNING at the Northeast corner of said Block 22; THENCE along the East line of said Block 22, also being the East line of Lots 1 to 14 inclusive and portion of Lot 15 , South 0'08' 00" East, 365.00 feet; THENCE parallel with the North line of said Block 22 , South 89'49' 50" West, 80.00 feet; THENCE parallel with the East line of said Block 22, South 0008' 00" East , 8.00 feet; • THCNCE parallel with the North line of said Block 22 , South 89'49' 50" West, 177.48 feet to a point in the West line of said Block 22, said point also being in the West line of Lot 29; THENCE along the West line of said Block 22 and the I-lest line of Lots 29 to 34 inclusive, North 0'08' 00" West, 373.00 feet, to the Northwest corner of said Block 22, said point also being the Northwest corner of Lot 34 ; THENCE along the North line of said Block 22, also being the North line of Lots 34 to 36 inclusive and Lot 1 , North 89'49' 50" East , 257 .4R feet, to the POINT OF BEGINNING. Containing 95,400.02 S. F./2 .19 Acres. .L'X�T-'LA n i1��G� /'art et • 2345F JHHW:CFA:dfd 05/18/84 O8/10/84 08/21/84 09/21/84 GUARANTY AGREEMENT by and between SECURITY PACIFIC NATIONAL BANK, as trustee and THE EDWARD J. DEBARTOLO CORPORATION Dated as of September 1, 1984 GUARANTY AGREEMENT • THIS GUARANTY AGREEMENT (the "Guaranty") is made and entered into as of September 1, 1984 by and between THE EDWARD J. DEBARTOLO CORPORATION, a corporation duly organized and existing under the laws of the State of Ohio ("Guarantor") and SECURITY PACIFIC NATIONAL BANK, a national bank duly organized and existing under and by virtue of the laws of the United States of America, as trustee (the "Trustee") ; WITNESSETH: WHEREAS, the Community Redevelopment Agency of the City of Palm Springs (the Agency ) has entered into a First Installment Sale Agreement (the "First Installment Sale Agreement") dated as of September 1, 1984, by and between the Agency and Desert Fashion Plaza, Inc. , a corporation duly organized and existing under and by virtue of the laws of the State of Ohio (the "Seller") whereby the Agency has agreed to acquire certain real property (the "Project") from the Seller and pay certain installment payments in the amounts and at the times set forth in Section 4.3(a) of the First Installment Sale Agreement (the "Agency Obligations") as the purchase price thereof; and WHEREAS, the Agency and each of North Plaza Associates, South Plaza Associates and Pratt/North Plaza Associates, each of which is a general partnership duly organized and existing under and by virtue of the laws of the State of California (collectively, the "Developers") have entered into a Second Installment Sale Agreement (collectively, the "Second Installment Sale Agreements") dated as of September 1, 1984, whereby the Developers have agreed to acquire their respective portions of the Project from the Agency and pay certain installment payments (collectively, the "Installment Payments") in the amounts and at the times set forth in Section 4.3(a) of the Second Installment Sale Agreements as the respective purchase prices thereof, which Installment Payments have been assigned by the Agency to the Seller to secure the Agency Obligations; and WHEREAS, the obligations of the Developers to pay the Installment Payments are each secured by Deed of Trust and Security Agreements, each dated as of September 1, 1984, by each of the Developers as trustor to the Trustee as beneficiary (collectively, the "Deeds of Trust") ; and WHEREAS, in order to provide funds to construct and acquire the Project, the Seller has entered into a First Assignment Agreement with the Trustee, pursuant to which the Seller has assigned the Agency Obligations to the Trustee, and the Agency, the Trustee and the Seller have entered into a Trust Agreement dated as of September 1, 1984, (the "Trust Agreement") pursuant to which the Trustee has agreed to execute and deliver Certificates of Participation (the "Certificates") in the aggregate principal amount of $23,250,000 representing proportionate interests of the owners thereof in the Agency Obligations; and WHEREAS, the Guarantor desires to facilitate the financing of the improvements described more fully in Exhibit A attached hereto and by this reference incorporated herein (the "Project") and is willing to enter into this • Guaranty in order to enhance the marketability of the Certificates and thereby achieve interest cost and other savings to the Developers and as an inducement to the purchase of the Certificates by all who shall at any time become owners thereof; NOW, THEREFORE, in consideration of the premises, Guarantor does hereby, subject to the terms hereof, covenant and agree with the Trustee as follows: i • 2 ARTICLE I REPRESENTATIONS AND WARRANTIES OF GUARANTOR The Guarantor hereby represents and warrants that: (a) It is a corporation organized and in good standing under the laws of the State of Ohio and has full legal right, power and authority to enter into this Guaranty, and the Guarantor by proper corporate action has duly authorized the execution of this Guaranty. (b) There are no actions, suits or proceedings threatened or pending against the Guarantor which would result in any material adverse change in the assets or financial condition of the Guarantor, and the Guarantor, to the best of the undersigned' s knowledge, is not in default with respect to any order or decree of any court or any valid, binding and enforceable order or regulation of any federal , state, municipal or governmental agency which default might have consequences that would materially and adversely affect the financial condition of the Guarantor. (c) The Guarantor' s execution and delivery of this Guaranty will not violate any provision of law, any order of any court or any agency of government, and will not conflict with or constitute a breach of or default under the articles of incorporation and bylaws of the Guarantor or any bond, debenture, note or other evidence of indebtedness, or any material contract, agreement or lease to which the Guarantor is a party. (d) This Guaranty constitutes a legal , valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted and by the exercise of judicial discretion in accordance with general principles of equity. This Guaranty has been duly authorized by all necessary corporate action on the part of the Guarantor and has been duly executed and delivered by the Guarantor. (e) the assumption of its obligations hereunder will result in a direct financial benefit to the Guarantor. 3 ARTICLE II • COVENANTS AND AGREEMENTS Section 2.1. Guarantee. The Guarantor hereby unconditionally guarantees the obligations of each of the Developers under the respective Second Installment Sale Agreements to pay the Installment Payments when and as the same shall become due, whether at the stated maturity thereof, by acceleration, prepayment or otherwise, in the manner and at the times set forth in Section 2.2. In each and every case, the Guarantor agrees, upon the occurrence of an event of default under and as defined in Section 8.1 of any of the Second Installment Sale Agreements resulting in the acceleration of all or a portion of the Agency Obligations under Section 5.2 of the First Installment Sale Agreement, to pay in full all amounts due and owing under the First Installment Sale Agreement as a result of such event of default, as such amounts shall be determined by the Trustee pursuant to Section 13. 10 of the Trust Agreement. Each and every event of default under and as defined in the Second Installment Sale Agreements shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. Section 2.2. Time and Manner of Payment. Demand for payment under this Guaranty Agreement may be made by the Trustee at any time during the business hours of the Guarantor on a Business Day at 7620 Market Street, Youngstown, Ohio, Attention: General Counsel , or Senior Vice President, Finance. If demand for payment is received by the Guarantor pursuant to this Section 2.2 at or prior to 5:00 p.m. Eastern Time, on a Business Day, payment shall be made to the Trustee by the Guarantor hereunder no later than 5:00 p.m. Eastern Time on the second Business day thereafter. Demand for payment may be made upon the Guarantor in writing, by oral communication to the General Counsel of the Guarantor confirmed in writing within one Business Day, or by telex or other writing transmitted by an telecommunication facility, in any case given or sent by an authorized officer of the Trustee and received by the Guarantor at the above address. Any such demand for payment shall be deemed received by the Guarantor and effective as of the time of receipt by Guarantor of such writing, oral communication, telex or other telecommunication. All payments hereunder shall be made by the Guarantor to the Trustee at 333 South Hope Street, Los Angeles, California 90071, in immediately available funds. In the event of any dispute between the Guarantor and the Trustee as to the occurrence of an event of default under and as defined in any of the Second Installment Sale Agreements, as to the amount payable hereunder as a result of any such event of default, or otherwise as to the obligation of the Guarantor to make any payment in the amount and within the time demanded by the Trustee hereunder, the Guarantor shall nevertheless pay to the Trustee the full amount demanded hereunder by the Trustee within the time claimed by the Trustee to be required by this Section 2.2, without any setoff or counterclaim whatsoever. As used herein, the term "Business Day" means any day on which banks in the State of California are open for business and on which the New York Stock Exchange is not closed. Section 2.3. Obligations Absolute. The obligations of Guarantor under this Guaranty shall be absolute and unconditional and shall remain in full force and • 4 effect until all of the Installment Payments shall have been paid or provided for; and such obligations of Guarantor shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, Guarantor: (a) the failure to give notice to Guarantor of the occurrence of an event of default under the terms and provisions of this Guaranty, the Second Installment Sale Agreements, the First Installment Sale Agreement, the Trust Agreement or the Deeds of Trust; (b) the assignment or mortgaging or the purported assignment or mortgaging of all or any part of the interest of any of the Developers in the Project or any failure of title with respect to any of the Developers' interests in the Project; (c) the waiver of the payment, performance or observance by the Agency, any of the Developers or the Seller of any of the obligations, covenants or agreements of them contained in the Second Installment Sale Agreements, the First Installment Sale Agreement, the Trust Agreement, the Deeds of Trust or this Guaranty; (d) the extension of the time for payment of any Installment Payment or under this Guaranty or of the time for performance of any other obligations, covenants or agreements under or arising from the Second Installment Sale Agreements, the First Installment Sale Agreement, the Trust Agreement, this Guaranty, the Deeds of Trust or the extension or the renewal of any of them; (e) the taking or the omission of any of the actions referred to in the Second Installment Sale Agreements, the First Installment Agreement, the Trust Agreement, the Deeds of Trust and any actions under this Guaranty; (f) any failure, omission, delay or lack on the part of the the Agency or Trustee to enforce, assert or exercise any right, power or remedy conferred on the Agency or the Trustee arising from this Guaranty, the Second Installment Sale Agreements, the First Installment Sale Agreement, the Deeds of Trust, the Trust Agreement, or any other act or acts on the part of the Agency or the Trustee; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of assets, or other similar proceedings affecting the Guarantor, the Seller, the Developers or the Agency or any of the assets of them, or any allegation or contest of the validity of this Guaranty in any such proceeding; provided, however, that the Trustee shall not cause any such sale without first providing written notice thereof to the Guarantor at least ten (10) days prior to the date of such sale; (h) to the extent permitted by law, the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law; or 5 M the default or failure of the Guarantor fully to perform any of its obligations set forth in this Guaranty; provided that the specific enumeration of the above—mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligations of Guarantor shall be absolute and unconditional to the extent and except as expressly otherwise specified herein, and shall not be discharged, impaired or varied except by the payment of the Installment Payments in accordance with the terms of the Second Installment Sale Agreements, and then only to the extent of such payments. Without limiting any of the other terms or provisions hereof, it is understood and agreed that, in order to hold Guarantor liable hereunder, there shall be no obligation on the part of Trustee to resort in any manner or form for payment to the Developers, the Agency or to any other person , firm or corporation, their properties or estates. Section 2.4. No Setoff. No setoff, counterclaim, reduction or diminution of an obligation, or any defense of any kind or nature which Guarantor has or may come to have against the Agency, the Trustee, the Seller or any of the Developers shall be available hereunder to Guarantor against any such party. Section 2.5. Proceedinq in Event of Default. In the event of a default in the payment of any Installment Payment when and as the same shall become due, whether at the stated maturity thereof, by acceleration, prepayment or otherwise, the Trustee may in accordance with Trust Agreement proceed hereunder, and the Trustee, in its sole discretion, shall have the right to proceed first and directly against Guarantor under this Guaranty without proceeding against or exhausting any . other remedies which it may have and without resorting to any other security held by the Developer, the Agency, the Seller or the Trustee. Section 2.6. Waiver of Notice. Guarantor hereby expressly waives notice from the Trustee or the owners from time to time of the Certificates of their acceptance and reliance on this Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees which may be incurred by the Trustee or the Seller in enforcing or attempting to enforce this Guaranty following any default on the part of Guarantor hereunder, whether the same shall be enforced by suit or otherwise. The Trustee and the Seller shall be entitled to the benefits of the Trust Agreement in the exercise of their rights and duties hereunder. Section 2.7. Notice in Event of Developer Nonpayment. In the event the Trustee shall not have received from any of the Developers payment in full of any Installment Payment prior to the close of business on the first Business Day preceding the date on which such Installment Payment is due and payable, the Trustee shall promptly notify the Guarantor, and any other person to whom the Guarantor has requested in writing that such notice be sent, of such fact by telephonic communication confirmed in writing. The parties hereto acknowledge and agree that the Guarantor, and other person, shall have the right to pay, on behalf of any Developer, any Installment Payment which is due and payable by such Developer under the applicable Second Installment Sale Agreement; and that if such payment in full of any delinquent Installment Payment is made by the Guarantor or 6 any other person prior to the occurrence of an event of default under and as defined in Section 8. 1(a) of the applicable Second Installment Sale Agreement, no such event of default shall be deemed to have occurred and the Guarantor shall have no obligations under this Guaranty Agreement with respect thereto. Section 2.8. Rights to Subrogation. In the event of a payment by the Guarantor hereunder, the Guarantor shall be subrogated to the rights of the Trustee under the Trust Agreement, the First Installment Sale Agreement and the Second Installment Sale Agreements to the extent of such payment. In accordance with Section 13. 12 of the Trust Agreement, in the event of a payment by the Guarantor hereunder the Trustee shall assign to the Guarantor all right, title and interest of the Trustee in and to the Deed of Trust qith respect to which any event of default shall have occurred. 7 F I I ARTICLE III MISCELLANEOUS Section 3.1 . Notice; Service of Process. The Guarantor hereby designates and appoints, without power of revocation, CT Corporation System, 700 South Flower Street, Los Angeles, California 90017, and if such agent shall cease to act, the Secretary of State of the State, as the respective agents of Guarantor upon whom may be served all process, pleadings, notices or other papers which may be served upon Guarantor as a result of any of its obligations under this Guaranty, other than as set forth in Section 2.2 hereof, provided that simultaneously with the service of any such item upon such agent, the party making such service shall concurrently send a copy thereof to the Guarantor by United States mail , return receipt requested, at the address set forth in Section 2.2 hereof. Assuming such service as above stated, Guarantor specifically agrees and consents to the jurisdiction of the courts of the State with regard to any action or proceeding brought under this Guaranty. Section 3.2. Effective Date. The obligations of Guarantor hereunder shall arise absolutely and unconditionally when the Certificates shall have been executed and delivered by the Trustee and the proceeds thereof deposited with the Trustee. Section 3.3. Remedies Not Exclusive. No remedy herein conferred upon or reserved to Trustee is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power • accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Trustee and the Certificate Owners to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. In the event any provision contained in this Guaranty should be breached by Guarantor and thereafter duly waived by the Trustee, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by Trustee. The Trustee shall not consent to any waiver, amendment, release or modification of this Guaranty without the written approval or consent of the owners of at least two-thirds (2/3) in aggregate principal amount of the Certificates at the time outstanding. Nothing contained herein shall permit or be construed as permitting, without the written approval or consent of the Seller, any waiver, amendment, release or modification of this Guaranty which would (a) reduce the amount payable by Guarantor hereunder, (b) change the time for payment of the amounts payable by Guarantor hereunder, or (c) change the unconditional nature of the Agreement herein contained. Section 3.4. Entire Agreement. This Guaranty constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and i 8 oral , between the parties with respect to the subject matter hereof and may be . executed simultaneously in several counterparts , each of which shall be deemed an original , and all of which together shall constitute one and the same instrument. Section 3.5. Binding Effect; Successors. This Guaranty shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Whenever in this Guaranty either the Guarantor, the Agency, the Developer, the Seller or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Guaranty contained by or on behalf of the Guarantor or the Trustee shall bind and inure to the benefit of the respective successors or assigns thereof whether so expressed or not. Section 3.6. Separability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or Sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty or any part thereof. Section 3.7. Governing Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed in its name and behalf and its corporate seal to be affixed hereto and attested by its duly authorized officers as of the date first above written. THE EDWARD J. DEBARTOLO CORPORATION By Richard S. So 0 ov, Vice rest ent Attest: �� :GL% f �; t` Arthur L. vdolfcale,�jr. , Secretary SECURITY PACIFIC NATIONAL BANK, as trustee By Ti t,l : CYNTHIA B. E)I ARE) Assistant Vice President 9 is REIMBURSEMENT AND INDEMNITY AGREEMENT BETWEEN INDUSTRIAL INDEMNITY COMPANY M AND THE EDWARD J. DE BARTOLO CORPORATION REIMBURSEMENT AND INDEMNITY AGREEMENT This Agreement is made as of this day of September , �&, by and between INDUSTRIAL INDEMNITY COMPANY, a corporation duly organized and existing under the laws of the State of California (hereafter called "Surety") and THE EDWARD J. DeBARTOLO CORPORATION, a corporation duly organized and existing under the laws of the State of Ohio (hereafter called "Company") . WITNESSETH: WHEREAS , the Community Redevelopment Agencv of the City of Palm Springs (the "Agency") has entered into a First Installment Sale Agreement (the "First Installment Sale Agreement") dated as of September 1, 1984 , by and between the Agency and Desert Fashion Plaza, Inc. , a corporation duly organized and existing under and by virtue of the laws of the State of Ohio (the "Seller") whereby the Agency has agreed to acquire certain improvements to be constructed by Seller (the "Project") from the Seller which improvements consist of certain public parking facilities and related amenities and pay certain installment pavments in the amounts and at the times set forth in Section 4 . 3 (a) of the First Installment Sale Agreement (the "Agency Obligations") as the purchase price thereof; and WHEREAS , the Agency has entered into separate Second Installment Sale Agreements (the "Second Installment Sale Agreements") dated as of September 1, 1984 , with Pratt/North Plaza Associates, a California general partnership, North Plaza Associates, a California general partnership and South Plaza Associates , a California general partnership (collectively referred to herein as the "Developers" and each one individually referred to as a "Developer") whereby each Developer has agreed to acquire a portion of the Project from the Agency and pay certain installment pavments (the "Installment Payments") in the amounts and at the times set forth in Section 4 .3 (a) of the Second Installment Sale Agreements as the purchase price thereof, which Installment Payments have been assigned by the Agency to the Seller to secure the Agency Obligations; and WHEREAS , the obligations of the Developers to pay the Installment Payments are secured by Deeds of Trust and Security Agreements, dated as of September 1, 1984 , by each of the Developers as trustors to Security Pacific National Bank , as trustee (the "Trustee") as beneficiary (the "Deeds of Trust") ; and WHEREAS , in order to provide funds to construct and acquire the Project, the Seller has entered into a First Assignment Agreement with the Trustee, pursuant to which the Seller has assiqned the Agency Obligations to the Trustee, and the Agency, the Trustee and the Seller have entered into a Trust Agreement dated as of September 1, 1984 , (the "Trust Agreement") pursuant to which the Trustee has agreed to execute and deliver Certificates of Participation (the "Certificates") in the aggre- gate principal amount of $23 ,250 ,000 representing proportionate interests of the owners thereof in the Agency Obligations; and WHEREAS , the Company desires to facilitate the financ- ing of the Developers' portions of the Project and has entered into a Guaranty Agreement (the "Guaranty") dated as of September 1, 1984 in order to enhance the marketability of the Certificates and thereby achieve interest cost and other savings to the Developer and as an inducement to the purchase of the Certificates by all who shall at any time become owners thereof; and WHEREAS , the Agency has requested that the Surety issue its surety bond (the "Surety Bond") to guarantee the obligations of the Company pursuant to the Guaranty; NOW THEREFORE , in consideration of the representations, warranties and covenants contained herein and in consideration of the issuance and continuance of the Surety Bond, the Surety and the Company agree as follows . Representations, Warranties and Covenants of Company. The Company represents and warrants that: (a) It is a corporation organized and in good standinq under the laws of the State of Ohio and has full leqal right, power and authority to enter into this Agreement, and the Company by proper corporate action has duly authorized the execution of this Agreement. (b) There are no actions, suits or proceedings threatened or pending against the Companv which would result in any material change in the assets or financial condition of the Company, and to the best of its knowledge, the Company is not in default with respect to any order or decree of any court or any order , regulation or demand of any Federal, state, municipal or qovernmental agency which default might have consequences that would materially and adversely affect the operation of the Company or its properties. (c) The Company' s execution and delivery of this Agreement will not, to the best of its knowledge, violate any provision of law, any order of any court or any agency of govern- -2- ment, and will not conflict with or constitute a breach of or default under the articles of incorporation and bylaws of the Company or anv bond , debenture, note or other evidence of indebt- edness, or any material contract, agreement or lease to which the Company is a party. (d) Subject to (i) the rights of creditors under applicable law, ( ii) the effects of bankruptcy, insolvency or other laws of general application affecting creditors' rights , and (iii) subject to limitations on remedies available at law or in equity, this Agreement constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms. This Agreement has been duly authorized by all necessary corporate action on the part of the Comnany and has been duly executed and delivered by the Company. The Company hereby covenants and agrees: (a) Not to perform or fail to nerform any act if such performance or failure would encumber, pledge or hypothecate the Collateral or in any manner impair the security intended to be afforded thereby except as permitted under the Deeds of Trust; M (h) To conform to and comply with each and every requirement or regulation imposed by governmental authority or other regulatory body with respect to the Collateral except that their validity or applicability with respect to the Collateral may be in good faith contested by the Company; (c) To deliver to the Surety within 30 days after the end of each fiscal year and each annual anniversary thereof of the Company a certificate executed by an officer of the Company stating that to his knowledge the Company is not in default under this Agreement, the Corporate Guaranty or any documents related thereto or , if in default, specifying the nature of such default; Term of the Agreement This Agreement shall apply to the Surety Bond (being the Surety' s Bond No. YU855-1859) . The term of this Agreement shall commence on the date of delivery of the Bonds and shall continue until all of the Surety' s obligations under the Surety Bond have been discharged and all of the Company' s obligations under this Agreement and any other agreement relating to the issuance of the Surety Bond have been fulfilled. Certain Conditions to the Issuance of the Surety Bond. . . (a) The Company shall cause the Developers to pay to the Surety, on the date of or prior to the issuance of the Bonds, -3- • a one-time nonrefundable premium in the amount of $1,162,500. Such payment shall be made in immediately available funds to the Surety at its address herein specified or as otherwise specified by the Surety. (b) The Company shall cause the Developers to execute and deliver to the Trustee the Deeds of Trust to secure its obligations under this Agreement. Companv Obligations Subiect to the applicable notice and cure provisions set forth herein , the Company will indemnify the Surety on demand against any an,9 all liability, loss , costs , damages, reasonable fees of attorneys and other expenses which the Surety may sustain (other than by Suretv' s wilful misconduct or (;efault) or incur by reason of, or in consequence of: (i) the issuance anq delivery of the Surety Bond and the continuation thereof, ( ii) the inaccuracy of any representation or warranty of the Company in this Agreement or the Guaranty, ( iii) the failure of the Company to perform or comply with the covenants or conditions of this Agreement, the Guaranty, the Surety Bond or any agreements related thereto, (iv) enforcing any covenants or conditions of this Agreement including but not limited to sums paid , liabili- ties incurred or expenses paid or incurred or expenses paid or incurred in connection with , (a) settlement or claims, suits or judgments under the Surety Bond , (b) in enforcing the terms of the Surety Bond , (c) in procuring or attempting to procure release from liability, or (d) in recovering or attempting to recover losses or expenses paid or incurred . Nature of Obligations of Companv The obligations of the Company hereunder are absolute and unconditional and will be paid or performed strictly in accordance with this Agreement irrespective of (a) any lack of validity or enforceability of, or any amendment or other modifications of, or waiver with respect to (provided that the Company shall have consented to such amendment, modification or waiver) , ( i) the Surety Bond , (ii) the • • Guaranty, or ( iii) any agreement of the Company relating to the Suretv Bond or the Guaranty; or -4- • (b) any exchange or non-perfection of the Collateral under this Agreement or any other collateral for all or any obligations hereunder ; or (c) anv other circumstance which might otherwise con- stitute a defense available to, or discharge of, the Companv in respect to this Agreement except the Surety' s failure to pay under the Surety Bond when so duly requested by the Trustee. Events of Default Each of the following shall constitute an Event of Default hereunder: (a) if the Company shall fail to perform any of the obligations under this Agreement as required and when due; (h) if the Company has made any material misrepresen- tation in or with respect to, or has breached any provision of this Agreement, the Guaranty, the Surety Bond or any related agreement, including but not limited to the timely payment of principal and/or interest under the Guaranty and any such monetary breach continues uncured for 10 days after notice thereof to the Company and any such non-monetary breach continues uncured for 60 days after notice thereof to the Company (as such period shall he extended for non-monetary defaults which cannot be cured within 60 days, provided that the Company promptly commences and diligently continues to cure such default) ; (c) if the Company shall become insolvent or generally fail to pay, or admit in writing its inability to pay its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law seeking dissolution or reorganization or the appointment of a receiver, trustee, custodian or liquidator for itself or a sub- stantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be adjudi- cated bankrupt, or shall make a general assignment for the benefit of creditors , or shall consent to, or acquiesce in the appointment of, a receiver , trustee, custodian or liquidator for itself or a substantial_ portion of its property, assets or business, or corporate action shall be taken by the Company for the purpose of effectuating any of the foregoing; • (d) involuntary proceedings or an involuntary petition shall be commenced or filed against the Company tinder any bank- -5- • ruptcv, insolvency or similar law or seeking the dissolution or reorganization of the Company or the appointment of a receiver. , trustee , custodian or liquidator for the Company or of a substan- tial part of the property, assets or business of the Company and such proceedings or petition shall not have been vacated or dismissed within 60 days after commencement, or any writ, order , judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of the property, assets or business of the Company, and such proceeding, petition, writ, order, judgment, warrant of attachment, execution or similar process shall not he dismissed , released , vacated or fully bonded within 60 days after commencement, filing or levy, as the case may be; (e) if any of the Collateral pledged under this Agreement shall be attached or subject to levy or seizure at any time pursuant to any court order or other legal process and such attachment is not dissolved, released or bonded within 60 days; or (f) if the security interest created in the Collateral M under the Deeds of Trust shall for any reason cease to be a perfected , security interest. Remedies Upon Default Upon the occurrence of an Event of Default and anv pavment by the Suretv under the Suretv Bond, the Surety may, in addition to any rights and remedies under applicable law or in equity, declare all or any of the monetary obligations under this Agreement, to the extent Surety has made payments on behalf of the Company, immediatelv due and payable by written notice to the Company whereupon the same shall be due and payable. The Suretv' s rights and remedies provided herein and by law are cumulative, and none of such rights is conditional or contingent on any attempt or forebearance by the Surety to exercise any other such rights. Settlement of Claims The Surety shall have the exclusive right to decide and determine whether any claim, liability, suit or judgment made or brought against the Surety and the Company or either one of them on the Surety Bond shall or shall not be paid, compromised, resisted , defended , tried or appealed, and the Surety' s decision thereon, if made in good faith, shall be final and binding upon • the Company provided (a) that if the Company shall not then be in default under the terms of this Agreement, the Companv shall have the reasonable right to approve any such action by the Surety, -6- and (b) that the Surety shall notify the Company prior to making any payment pursuant to the Surety Bond. An itemized statement of payments made by the Surety for any of the purposes specified herein, certified by an Officer of the Surety, or the voucher or vouchers for such payments , shall be prima facie evidence of the liability of the Company to reimburse the Surety for such amounts, with interest at the lesser rate of twelve percent (12%) per annum or the maximum legal rate of interest in California. Changed or Substitute Surety Bond The Company hereby authorizes the Surety, in its sole discretion and from time to time, to make or consent to any change in, or issue any substitute for the Surety Bond and this Agreement shall apply to such substituted or changed Surety Bond without further action by the parties hereto, as if the same were the Surety Bond. Provided that no such amendment change or modification may be made without the prior written consent of the Company if it would in any way increase the liability of or prejudice the Company or the Developers. Waivers and Notices of Execution MThe Company hereby waives notice of the execution of the Surety Bond or of any act, fact or information coming to the notice or knowledge of the Surety concerning or affecting its rights or liabilities under anv Surety Bond or rights or liabili- ties of the Company hereunder , notice of all such being hereby expressly waived, except as otherwise provided herein. Other Sureties If the Surety shall procure any other surety or companies to execute or join with it in executing, or to reinsure, the Surety Bond , this instrument shall inure to the benefit of such other surety or companies, its or their successors and assigns, so as to give to it or them a direct right of action against the Company to enforce this instrument and, in that event, the word "Surety" , wherever used herein, shall be deemed to include such other surety or companies, as their respective interests may appear. Execution of Surety Bond The liability of the Company hereunder shall not be affected by the failure of any party to sign the Surety Bond nor by any claim that other indemnity or security was to have been obtained nor by the release of any indemnity, or indemnitor, nor • the return or exchange of any collateral that may have been obtained. -7- f Precedence Waiver o rece nce e The Company waives , if applicable, any defense that this Agreement was executed subsequent to the date of the Surety Bond , admitting and covenanting that the Surety Bond was executed Pursuant to the Company' s request and in reliance on the Company' s promise to execute this Agreement. Severahilitv In the event any part of this Agreement shall be void under the law of the place governing the construction hereof, then such part only shall he considered as deleted and the remainder of this Agreement shall remain in full force and effect. Subrogation Rights (Omitted. ) Rights Cumulative All rights and remedies of the Surety under this Agreement shall he cumulative, and the exercise of or failure to exercise , any right or remedy at any time shall not be an elec- tion of remedy or a waiver of anv other right or remedy. Failure of the Surety to pursue any remedy against the Company shall not release or waive anv right of the Surety against the Company. The rights , powers and remedies given to the Surety by this Agreement shall be and are in addition to, and not in lieu of, any and all other rights , Powers , and remedies which the Surety may have or acquire against the Company whether by the terms of any other agreement , by operation of law or otherwise . Entirety of Agreement This Agreement, together with the Surety Bond consti- tutes the entire agreement between the Surety and the Company. No addition, waiver , change or modification shall be effective unless specifically agreed to and provided in writing. • -8- Notices Except where telephonic instructions, prepaid Telex, Telecopier, TWX or telegram (with messenger delivery specified in the case of a telegram) or by telecopier are authorized and agreed to by the parties, all notices, demands, instructions and other communications required or permitted to be given to or made upon either party hereto shall be in writing and shall be person- ally delivered or sent to the addresses listed below by regis- tered , certified mail or overnight courier service, postage prepaid , return receipt requested . Unless otherwise agreed upon by the parties in writing, such notice shall he deemed duly given or served on the date of service, when delivered personally or upon receipt if by certified or registered mail. Surety: Company: Industrial Indemnity Company The Edward J. De Bartolo 255 California Street Corporation San Francisco, California 94111 7620 Market Street Attn: Financial Guarantee Dept. Youngstown, Ohio 44512 Attention: General Counsel Headings The section headings appearing in this Agreement are for convenience only and shall not he taken into consideration in any construction or interpretation of this Agreement. Governing Law This Agreement shall be construed in accordance and under the laws of the State of Ohio. • -9- • This Agreement is entered into on the- -LE day of September, 1984 . THE EDWARD J. DeBARTOLO INDUSTRIAL INDEMNITY COMPANY CORPORATION 1 By: di � BV: � Richard S. Sokolov Title: Vice President Title Artl- ur D. Wol cal , jr. Title: Secretary/ ) Title -10-