HomeMy WebLinkAbout00093C - DESERT FASHION PLAZA SOUTH PLAZA PRATT NORTH PLAZA 2ND INSTALLMENT SALE AGR 2956F JHHW:CFA:dfd 9/15/84
:tec 9/19/84
9/20/84
Pratt & North Plaza Assoc-2nd /84
Installment Sale Agr for purch
& sale of land & prkg facil
AGREEMENT #93, 9-1-84
Res #238, 8-15-84
SECOND INSTALLMENT SALE AGREEMENT
by and between
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
as seller
and
PRATT/NORTH PLAZA ASSOCIATES, as purchaser
Dated as of September 1, 1984
TABLE OF CONTENTS
iPage
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1. 1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1 Representations, Covenants and Warranties of
theAgency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.2 Representations, Covenants and Warranties of
the Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
ACQUISITION AND CONSTRUCTION OF THE PRATT/NORTH PLAZA SITE
AND PRATT/NORTH PLAZA PROJECT 11
ARTICLE IV
SALE OF PRATT/NORTH PLAZA PROJECT;
TERMINATION OF THIS AGREEMENT; INSTALLMENT PAYMENTS; TITLE
Section4. 1 Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.2 Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.3 Installment Payments; Additional Payments. . . . . . . . . . . 12
Section 4.4 Obligations of Developer Hereunder
Unconditional ; Payments Assigned. . . . . . . . . . . . . . . . . . 13
Section 4.5 Limitation on Developer' s Liability. . . . . . . . . . . . . . . . . 14
Section 4.6 Title to the Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.7 Deed of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V
INSURANCE; EMINENT DOMAIN
Section 5. 1 Application of Net Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.2 Net Proceeds of $50,00 or Less. . . . . . . . . . . . . . . . . . . . . 16
Section 5.3 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(i)
Page
• ARTICLE VI
SPECIAL COVENANTS
Section 6. 1 Disclaimer of Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.2 Access to the Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.3 Release and Indemnification Covenants. . . . . . . . . . . . . . . 17
Section 6.4 No Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
ASSIGNMENT AND AMENDMENTS
Section 7. 1 Assignment by the Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.2 Assignment, Selling and Leasing. . . . . . . . . . . . . . . . . . . . . 19
Section 7.3 Amendment of this Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8. 1 Events of Default Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.2 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
• Section 8.3 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.4 No Remedy Exclusive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.5 Agreement to Pay Attorneys' Fees and Expenses. . . . . . . 22
Section 8.6 No Additional Waiver by One Waiver. . . . . . . . . . . . . . . . . . 22
Section 8.7 Trustee and Certificate Owner to Exercise Rights. . . . 22
Section 8.8 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IX
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 9. 1 Advance Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.2 Optional Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.3 Extraordinary Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.4 Prepayment From Excess Construction Fund. . . . . . . . . . . . 25
(ii)
Page
ARTICLE X
ADMINISTRATIVE PROVISIONS
Section 10. 1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.2 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.3 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.4 Net Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.5 Further Assurances and Corrective Instruments. . . . . . . 27
Section 10.6 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.7 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.8 Payment on Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.9 Developer, Surety and Agency Representatives. . . . . . . . 28
Section 10. 10 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(iii)
SECOND INSTALLMENT SALE AGREEMENT
•
THIS SECOND 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, duly organized and existing under the laws of
the State of California, as seller (the "Agency") , and PRATT/NORTH PLAZA
ASSOCIATES, a general partnership duly organized and existing under the laws of the
State of California, as purchaser (the "Developer") ;
WITNESSETH:
WHEREAS, Desert Fashion Plaza, Inc. , a corporation organized under the laws
of the State of Ohio, (the "Seller") has agreed to construct parking facilities and
related and appurtenant facilities and property as described more fully in Exhibit
B hereto (the "Pratt/North Plaza Project") to be located on certain land within the
Palm Springs Central Business District Redevelopment Project of the Agency; and
WHEREAS, the Seller has agreed to sell the Pratt/North Plaza Project to the
Agency pursuant to a First Installment Sale Agreement dated as of the date hereof
between the Seller and the Agency; and
WHEREAS, the Developer wishes to purchase the Pratt/North Plaza Project from
the Agency pursuant to this Agreement;
NOW, THEREFORE, in consideration of the above premises and of the mutual
covenants hereinafter contained and for other good and valuable consideration, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
Section I. I. Definitions. Unless the context otherwise requires, the terms
defined in this Section shall , for all purposes of this 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 Guarantor, the Insurer,
the Surety and the Developer.
"Agreement" or "Second Installment Sale Agreement" means this Second
Installment Sale Agreement and any duly authorized and executed amendment hereto.
"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 the Community
Redevelopment Agency of the City of Palm Springs Certificates of Participation
(Desert Fashion Plaza Public Parking Project) executed and delivered pursuant to
the Trust Agreement.
"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 Pratt/North Plaza 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 Pratt/North Plaza Project;
2
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
Pratt/North Plaza Project, including reimbursement to the Seller or the Developers,
their respective affiliates or the Guarantor for all advances and payments made in
connection with the Pratt/North Plaza 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 Pratt/North Plaza 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 Pratt/North Plaza 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 Pratt/North Plaza Project; and
(vi) the interest components of any Installment Payments coming due or
accruing during the period of construction', improvement and equipping of the
Pratt/North Plaza Project.
"Construction Fund" means the fund by that name established and held by the
Trustee under the Trust Agreement.
"Deed of Trust" means the Deed of Trust, Assignment of Rents and Security
Agreement executed by the Developer pursuant to Section 4.6 hereof, securing (among
other things) the obligations of the Developer hereunder, 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 Pratt/North Plaza 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.
"Developer" means Pratt/North Plaza Associates, a general partnership
organized and existing under the laws of the State of California, its successors
and assigns.
"Developer Project" means the portion of the Project to be constructed on
the Pratt/North Plaza Site, and all other buildings and related and appurtenant
improvements, facilities, property and improvements identified more particularly
in Exhibit B attached hereto.
3
"Developer Representative" means a representative of the Developer
authorized to act as such pursuant to written instrument executed by a duly
authorized officer of the Developer and filed with the Seller, the Agency, the
Surety, the Guarantor and the Trustee.
"Event of Default" means any event of default pursuant to and described in
Section 8.-hereof.
"Federal Securities" means any of the following which at the time of
investment are legal investments under the laws of the State of California for the
moneys proposed to be invested therein :
(a) direct general obligations of (including obligations issued 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 Pratt/North Plaza 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 securing the obligations of the Developer
hereunder and the obligations of the Program Participants under their respective
second installment sale agreements with the Agency, 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, the Developer, any Program Participant, 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 the Developer.
4
"Installment Payment Date" means any date specified in Exhibit A hereto
with respect to the payment of an Installment Payment.
"Installment Payments" means each semiannual payment required to be paid by
the Developer pursuant to Section 4.3(a) of this Agreement, and includes any
prepayment thereof or other amount required to be credited towards the payment
thereof.
"Insurance and Condemnation Award" means the fund by that name established
and held by the Trustee pursuant to Article VII of the Trust 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.
"Insurer" mans Industrial Indemnity Company, a corporation organized under
the laws of the State of California.
"Law" means the Community Redevelopment Law of the State of California,
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 Pratt/North Plaza Project or the Pratt/North
Plaza 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.
"Owners" or "Certificate Owners", or any similar term, when used with
respect to a Certificate, means the person in whose name the ownership of such
Certificate shall be registered.
"Pratt/North Plaza Project" means that portion of the Project located on
the Pratt/North Plaza Site.
"Pratt/North Plaza Site" means the real property located in the Palm
Springs Central Business District Redevelopment Project of the Agency in the City
of Palm Springs, described in Exhibit B hereto.
"Program Participants" means, collectively, North Plaza Associates and
South Plaza Associates, each of which is a general partnership organized and
existing under the laws of the State of California, their respective successors and
assigns.
"Project" means the public parking structure to be constructed by the Seller
and sold to the Agency pursuant to the First Installment Sale Agreement.
5
"Proportionate Share" means the fraction obtained by dividing (a) the
Purchase Price by (b) the amount of $23,250,000.
"Purchase Price" means the purchase price of the Project determined in
accordance with Section 4. 1 hereof.
"Reserve Fund" means the fund by that name established and held by the
Trustee pursuant to Article VI of the Trust Agreement.
"Second Assignment Agreement" means the Second Assignment Agreement, dated
the date hereof, between the Agency as assignor and the Seller as assignee, and any
duly authorized and executed amendment thereto.
"Seller" means Desert Fashion Plaza, Inc. , a corporation organized and in
good standing under the laws of the State of Ohio, its successors and assigns.
"Seller Representative" means any person authorized by the Seller or the
Executive Director of the Seller to act on behalf of the Seller under or with
respect to this Agreement pursuant to written instrument filed with the Agency, the
Trustee, the Surety, the Guarantor and the Developer.
"Site" means the real property located in Palm Springs Central Business
District Redevelopment Project of the Agency in the City of Palm Springs, on which
the Project is located, as described more fully in Exhibit C to the First
Installment Sale Agreement.
"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 in connection with
the Certificates.
"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 the Developer.
"Term of this Agreement" or "Term" means the time during which this
Agreement is in effect, as provided for in Section 4.2 of this Agreement.
"Trust Agreement" means the Trust Agreement, dated the date hereof, by and
among the Trustee, the Seller and the Agency, and any duly authorized and executed
amendment thereto.
"Trustee" means Security Pacific National Bank or any successor thereto
acting as Trustee pursuant to the Trust Agreement.
Section 1.2. Exhibits. The following Exhibits are attached to, and by
reference made a part of, this Agreement:
Exhibit A: The schedule of Installment Payments.
6
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2. 1. Representations Covenants and Warranties of the Agency. The
Agency represents, covenants and warrants to the Developer as follows:
(a) Due Organization and Existence. The Agency is a public body,
corporate and politic, duly organized and existing under the Law.
(b) Authorization. The Law authorizes the Agency to enter into this
Agreement, the First Installment Sale Agreement, the Trust Agreement and the Second
Assignment Agreement and to enter into the transactions contemplated by and to
carry out its obligations under all of the aforesaid Agreements, and the Agency has
duly authorized and executed all of the aforesaid Agreements.
(c) No Violations. Neither the execution and delivery of this
Agreement, the First Installment Sale Agreement, the Trust Agreement or the Second
Assignment Agreement, nor the fulfillment of or compliance with the terms and
conditions hereof or thereof, nor the consummation of the transactions contemplated
hereby or thereby, conflicts with or results in a breach of the terms, conditions
or provisions of any restriction or any agreement or instrument to which the Agency
is now a party or by which the Agency is bound, or constitutes a default under any
of the foregoing, or results in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of the Agency, except
upon the Pratt/North Plaza Site.
(d) Execution and Delivery. The Agency has duly authorized, executed
and delivered this Agreement in accordance with the laws of the State of
California.
(e) Project Location. The Pratt/North Plaza Project and the
Pratt/North Plaza Site are situated within the boundaries of the Palm Springs
Central Business District Redevelopment Project of the Agency in the City of Palm
Springs, California, which constitutes a duly designated redevelopment project
area under the Law.
Section 2.2. Representations Covenants and Warranties of the
Developer. The Developer represents, covenants and warrants to the Agency as
follows:
(a) Due Organization and Existence• Authorization. The Developer is
a general partnership duly organized, existing and in good standing under and by
virtue of the laws of the State of California; is possessed of full power to own the
Pratt/North Plaza Project, and to purchase the Pratt/North Plaza Project and to
enter into this Agreement and the Deed of Trust; and has duly authorized the
execution and delivery of this Agreement and the Deed of Trust. All consents,
approvals, authorizations, or other orders of any governmental body or regulatory
authority required to be obtained by the Developer for the authorization,
execution, delivery and performance of this Agreement and the Deed of Trust, or
otherwise to consummate the transactions contemplated by this Agreement and the
8
Deed of Trust, have been obtained. No further approval , consent, order or
authorization of or designation , declaration, qualification or filing with any
governmental authority is required in connection with the validity, execution and
delivery of the Agreement and the Deed of Trust or the carrying out of the
transactions contemplated thereby or the enforcement of any remedies provided
therein.
(b) No Violations. Neither the execution and delivery of this
Agreement and the Deed of Trust, nor the fulfillment of or compliance with the
terms and conditions hereof or thereof, nor the consummation of the transactions
contemplated hereby or thereby, conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any of the laws of the State of
California or under any agreement, instrument, undertaking, judgment or decree to
which the Developer is now a party or by which the Developer is bound, or
constitutes a default under any of the foregoing, or results in the creation of
imposition of any lien, charge or encumbrance whatsoever upon of the property or
assets of the Developer, or upon the Pratt/North Plaza Project, except upon the
Pratt/North Plaza Site.
(c) Approvals. All consents, approvals, authorizations, or other
orders of any governmental body or regulatory authority required to be obtained by
the Developer for the authorization, delivery and performance of this Second
Installment Sale Agreement or the Deed of Trust by the Developer, or otherwise to
consummate the transactions contemplated hereby or thereby, have been obtained. No
further approval , consent, order or authorization of or designation, declaration,
qualification or filing with any governmental authority is required in connection
with the validity, execution and delivery of this Second Installment Sale Agreement
or the Deed of Trust, or the carrying out of the transactions contemplated hereby
or thereby or the enforcement of any remedies provided herein or therein.
(d) No Litigation. There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or body,
known to be pending or threatened against or affecting the Developer, nor to the
best of the knowledge of the Developer is there any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely affect the
transactions contemplated by this Agreement or by the Deed of Trust or which, in
any way, would materially adversely affect the validity or enforceability of this
Agreement or the Deed of Trust, or any agreement or instrument to which the
Developer is a party, used or contemplated for use in the consummation of the
transactions contemplated hereby or thereby.
(e) Use of Proceeds. The Pratt/North Plaza Project constitutes and
will constitute either land or property of a character subject to the allowance for
depreciation under Section 167 of the Code, and the Developer will assure that at
least ninety percent (90%) of the proceeds of the Certificates, including
investment earnings on the Construction Fund held by the Trustee under the Trust
Agreement, shall be used (i) for payment of Construction Costs 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 the Code, or (ii) for payment of Construction
Costs incurred after December 21, 1983, which are, for federal income tax purposes,
9
chargeable to the Pratt/North Plaza Project' s capital account or would be so
chargeable either with a proper election or but for a proper election to deduct
such amounts.
(f) Covenants With Respect to Section 103(b)(4) of the Code. The
Developer acknowledges that the Pratt/North Plaza Project consists of a portion of
the Project, and that the exemption from federal income taxation of interest
represented by the Certificates depends upon the Project constituting, at all times
during the Term of this Agreement, public parking facilities and functionally
related and subordinate facilities which are available on a regular basis for
general public use, all within the meaning of Section 103(b)(4)(D) of the Code.
The Developer covenants to enter into an agreement with all of the Program
Participants, on or before the Closing Date, whereby the Developer and all of the
Program Participants covenant that the Project will constitute such public parking
facilities and functionally related and subordinate facilities so long as any
Certificates remain outstanding under the Trust Agreement, and that no more than
ten percent (10%) of such public parking facilities will be used exclusively by or
for the benefit of non-exempt persons (within the meaning of Section 103(b)(4)(D)
of the Code) by reason of a formal or informal agreement or by reason of the remote
geographic location of the facilities.
(g) Economic Life of Facilities. On the date on which the Pratt/North
Plaza Project is placed in service (or expected to be placed in service) , one
hundred twenty percent (120%) of the average reasonably expected economic life of
the Pratt/North Plaza Project, determined in accordance with the provisions of
Section 103(b)(14) of the Code, shall be greater than or equal to the average
maturity of the Agency' s obligations under the First Installment Sale Agreement.
. (h) Tax-Exempt Status. The Developer will not take or permit to be
taken any action which would have the effect, directly or indirectly, or subjecting
the interest component of the Agency' s payments under Section 4.3(a) of the First
Installment Sale Agreement to federal income taxation.
(i) Arbitrage Covenant. The Developer hereby covenants that it will
make no use of the moneys on deposit in any fund or account held under the Trust
Agreement which, is such use 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. To that end, the Developer will comply with all requirements of said
Section 103(c) and all regulations of the United States Department of the Treasury
issued thereunder, to the extent that such requirements are, at the time,
applicable and in effect.
10
ARTICLE III
• ACQUISITION AND CONSTRUCTION OF
THE PRATT/NORTH PLAZA SITE AND PRATT/NORTH PLAZA PROJECT
The Developer represents and warrants that it presently owns a leasehold
estate in the Pratt/North Plaza Site, the term of which exceeds the term of the
Installment Payments. The Seller has agreed, pursuant to the First Installment
Sale Agreement to construct, improve and equip the Pratt/North Plaza Project
thereon in accordance with the First Installment Sale Agreement. Payment of the
Construction Costs and the Delivery Costs shall be made from the moneys in the
Construction Fund held by the Trustee, which shall be disbursed for this purpose in
accordance and upon compliance with Section 3.03 of the Trust Agreement.
11
ARTICLE IV
iSALE OF PRATT/NORTH PLAZA PROJECT; TERMINATION OF THIS
AGREEMENT; INSTALLMENT PAYMENTS; TITLE
Section 4. 1. Sale. In consideration of the payment by the Developer of the
Installment Payments, the Agency hereby grants, conveys, bargains and sells the
Pratt/North Plaza Project to the Developer, and the Developer hereby purchases the
Pratt/North Plaza Project from the Agency, upon the terms and conditions set forth
in this Agreement. The Developer and the Agency agree that title to each component
or item of the Pratt/North Plaza Project shall be deemed vested in the Developer
upon the installation thereof. The Purchase Price of the Pratt/North Plaza Project
shall be equal to the sum of Four Million Thirty-Eight Thousand Five Hundred
Twenty-Five Dollars ($4,038,525) , subject to adjustment as hereinafter provided in
this Section 4. 1. Within one hundred twenty (120) days following the Completion
Date, the Developer and the Program Participants may file with the Trustee a
written notice, executed by the Developer Representative and an authorized
representative of each of the Program Participants, designating the Purchase Price
of the Pratt/North Plaza Project and the respective purchase prices of each of the
other projects of the Program Participants financed under the First Installment
Sale Agreement. Provided that the aggregate amount of all such purchase prices
designated in such notice equals Twenty Three Million Two Hundred Fifty Thousand
Dollars ($23,250,000) , the Purchase Price of the Pratt/North Plaza Project shall ,
effective upon the date of receipt of such notice by the Trustee, be adjusted to
equal the amount of such Purchase Price designated in such notice.
Section 4.2. Term of Agreement. The Term of this Agreement shall commence
as of the date hereof and shall remain in effect until the date which is two hundred
eighty (280) days following the date on which all Installment Payments have been
paid in full or provision made for payment payment in full pursuant to Section 9. 1
hereof.
Section 4.3. Installment Payments; Additional Payments.
(a) Installment Payments. The Developer hereby agrees to pay
installments of the Purchase Price, together with interest thereon, as set forth in
this Section 4.3(a). The principal components of such installments shall be equal
in aggregate amount to the Purchase Price determined as provided in Section 4. 1,
and shall be due and payable no later than the close of business on the August 15
immediately preceding each of the September 1 Installment Payment Dates specified
in Exhibit A. The interest components of such installments shall be due and
payable no later than the close of business on the February 15 and August 15,
respectively, immediately preceding each of the March 1 and September 1 Installment
Payment Dates specified in Exhibit A. The amount of the principal component due
and payable with respect to any Installment Payment Date shall be equal to the
amount obtained by multiplying (a) the Proportionate Share times (b) the amount
identified as the "Aggregate Principal Payment" in Exhibit A hereto opposite such
Installment Payment Date. The amount of the interest component due and payable
with respect to any Installment Payment Date shall be equal to the amount obtained
by multiplying (a) the Proportionate Share times (b) the amount identified as the
"Aggregate Interest Payment" in Exhibit A hereto opposite such Installment Payment
•
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Date. Any amount held in the Installment Payment Fund on any Installment Payment
Date (other than amounts resulting from the prepayment of the Installment Payments
in part but not in whole pursuant to Article IX and other than amounts required for
payment of past due principal or interest with respect to any Certificate not
presented for payment) shall be credited towards the Installment Payment then due
and payable.
(b) Effect of Prepayment. In the event that the Developer prepays all
remaining Installment Payments pursuant to Article IX, the Developer' s obligations
under this Agreement shall thereupon cease and terminate, including but not limited
to the Developer' s obligation to pay Installment Payments under this Section. In
the event the Developer prepays less than all of the remaining principal components
of the Installment Payments pursuant to Article IX, the principal components of the
remaining Installment Payments shall be reduced in chronological order of payment
date, and the interest component of each remaining Installment Payment shall be
reduced by the aggregate corresponding amount of interest which would otherwise be
payable with respect to the Certificates redeemed as a result of such prepayment.
(c) Manner of Payment. The Installment Payments have been assigned
by the Agency to the Seller pursuant to the Second Assignment Agreement, and by the
Seller to the Trustee pursuant to the First Assignment Agreement. Accordingly, the
Agency hereby directs the Developer, and the Developer hereby agrees, to pay to the
Trustee at 333 South Hope Street, Los Angeles, California 90071, Attention:
Corporate Trust Department, or to the Trustee at such other place as the Trustee
shall direct in writing, all Installment Payments payable by the Developer pursuant
to the preceding subsection (a) of this Section. Such payments shall be made in
lawful money of the United States of America which at the time of payment is legal
tender for the payment of public and private debts.
(d) Payment of Additional Costs. The Developer hereby agrees to pay
all costs, fees and expenses relating to the Surety Bond, and its Proportionate
Share of all reasonable costs and expenses of the Agency and the Trustee incurred
in connection with the transactions contemplated hereby, by the First Installment
Sale Agreement or by the Trust Agreement, when and as the same shall become due and
payable. The Developer' s Proportionate Share of all Delivery Costs shall be paid
from the proceeds of sale of the Certificates deposited in the Construction Fund,
when and as the same shall become due and payable.
Section 4.4. Obligations of Developer Hereunder Unconditional • Payments
Assigned. The obligations of the Developer to make the payments required in
Section 4.3 and other sections hereof and to perform and observe the other
agreements contained herein shall be absolute and unconditional and shall not be
subject to any defense or any right of setoff, counterclaim or recoupment arising
out of any breach of the Agency or the Trustee of any obligation to the Developer or
otherwise with respect to the Pratt/North Plaza Project, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Developer by the Agency or the Trustee. Until* such time as all of the Installment
Payments shall have been fully paid or prepaid, the Developer (i) will not suspend
or discontinue any payments provided for in Section 4.3 hereof, (ii ) will perform
and observe all other agreements contained in this Agreement, and (iii) will not
terminate the Term of Agreement for any cause, including, without limiting the
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generality of the foregoing, failure of the Agency or any other person to complete
the acquisition, construction, improving and equipping of the Pratt/North Plaza
Project, the occurrence of any acts or circumstances that may constitute failure of
consideration, eviction or constructive eviction , destruction of or damage to the
Pratt/North Plaza Project, the taking by eminent domain of title to or temporary
use of any or all of the Pratt/North Plaza Project, commercial frustration of
purpose, any change in the tax or other laws of the United States of America or of
the State or any political subdivision of either thereof or any failure of the
Agency or the Trustee to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or connected with the
Trust Agreement, the First Installment Sale Agreement, this Agreement, the Deed of
Trust, the Reimbursement Agreement, the Guaranty Agreement or the Surety Bond.
Nothing contained in this Section shall be construed to release the Agency from the
performance of any of the agreements on its part herein contained or to release the
Trustee from the performance of any of the agreements on its part contained in the
Trust Agreement, and in the event the Agency or the Trustee should fail to perform
any such agreements on its part, the Developer may institute such action against
the Agency or the Trustee as the Developer may deem necessary to compel performance
so long as such action does not abrogate the obligations of the Developer contained
in the first sentence of this Section. The Developer may, however, at the
Developer' s own cost and expense and in the Developer' s own name or in the name of
the Agency, prosecute or defend any action or proceeding or take any other action
involving third persons which the Developer deems reasonably necessary in order to
secure or protect the Developer' s right of possession, occupancy and use hereunder,
and in such event the Agency hereby agrees to cooperate fully with the Developer
and to take all action necessary to effect the substitution of the Developer for
the Agency in any such action or proceeding if the Developer shall so request.
Section 4.5. Limitation on Developer' s Liability. Notwithstanding the
foregoing, or any other provision in this Agreement or any other agreement,
instrument or document, neither the Developer nor any present or future partner of
the Developer, nor any present or future individual general partner of any
partnership which is now or hereafter a general partner of the Developer, 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 Developer 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 City and the Trustee hereby waive any and
all such personal liability. Upon the occurrence of an Event of Default under this
Agreement, neither the Trustee nor the Agency shall have the right to proceed
directly against the Developer, or any of its present or future partners (or
partners of partners) ; nor shall the Trustee 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 not in limitation of, any limitation on
liability applicable to the Developer provided by law or by any other agreement,
instrument or document.
Section 4.6. Title to the Project. The Developer hereby agrees that title
to the Project shall be vested in the Seller upon the acquisition and construction
thereof and shall be transferred to the Agency pursuant to and in accordance with
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the First Installment Sale Agreement. Title to the Pratt/North Plaza Project shall
• at all times from and after the conveyance thereof to the Developer pursuant to
Section 4. 1 be vested in the Developer, subject to various encumbrances to all of
which the Developer hereby consents. The Agency and its officers shall take all
actions necessary to authorize, execute and deliver to the Developer any other
documents necessary to vest in the Developer all of the Agency' s rights in and
title to the Pratt/North Plaza Site and the Pratt/North Plaza Project.
Section 4.7. Deed of Trust. On or before the Closing Date, the Developer
shall execute, acknowledge and deliver to the Trustee the Deed of Trust. The Deed
of Trust shall name the Trustee as beneficiary, shall create a lien upon all of the
Developer' s right, title and interest in the real property constituting the
Pratt/North Plaza Site and the Pratt/North Plaza Project, and shall secure the
payment of (among other things) the Developer' s obligations hereunder. The
Developer covenants that it will perform and observe all of the covenants,
agreements and conditions on its part to be performed and observed under the Deed
of Trust. Upon termination of this Agreement, the lien of the Deed of Trust shall
be released and the Agency and the Trustee shall execute such documents as may be
necessary to evidence such release.
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ARTICLE V
INSURANCE; EMINENT DOMAIN
Section 5. 1. Application of Net Proceeds. Any Net Proceeds of insurance
against accident to or destruction of any structure constituting any part of the
Pratt/North Plaza Project or the Pratt/North Plaza Site collected by the Developer
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 by the Developer promptly upon the
receipt of such Net Proceeds, to be deposited in the Insurance and Condemnation
Fund and applied pursuant to the provisions of Section 7.02 of the Trust Agreement,
to all of which provisions the Developer hereby consents and agrees.
Section 5.2. Net Proceeds of $50,000 or Less. The parties hereto agree
that the provisions of this Article V 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 Developer and applied in the sole discretion of
the Developer for any lawful purposes.
Section 5.3. Cooperation. The Seller, the Trustee and the Agency shall
cooperate fully with the Developer at the expense of the Developer in filing any
proof of loss with respect to any insurance policy maintained pursuant to the Deed
of Trust and in the prosecution or defense of any prospective or pending eminent
domain proceeding with respect to the Pratt/North Plaza Project, the Pratt/North
Plaza Site or any portion thereof.
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ARTICLE VI
SPECIAL COVENANTS
Section 6.1. Disclaimer of Warranties. THE DEVELOPER UNDERSTANDS AND
AGREES THAT NEITHER THE SELLER, THE TRUSTEE, THE SURETY NOR THE AGENCY MAKE ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN,
CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE CONTEMPLATED BY
THE DEVELOPER OF THE SITE AND THE PROJECT OR ANY COMPONENT THEREOF, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROJECT OR ANY COMPONENT THEREOF.
IN NO EVENT SHALL THE SELLER, THE TRUSTEE, THE SURETY OR THE AGENCY BE LIABLE FOR
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT, OR THE EXISTENCE, FURNISHING, FUNCTIONING OR THE
DEVELOPER'S USE OF THE SITE AND THE PROJECT.
Section 6.2. Access to the Project. The Developer agrees that the Seller,
the Trustee, the Surety, the Guarantor and any representative of any thereof shall
have the right at all reasonable times to enter upon and to examine and inspect the
Pratt/North Plaza Project or the Pratt/North Plaza Site. The Developer further
agrees that the Seller and any representative thereof or employee or contractor
thereof shall have such rights of access to the Pratt/North Plaza Project and the
Pratt/North Plaza Site as may be necessary to cause the completion of acquisition,
construction, improvement and equipping thereof.
Section 6.3. Release and Indemnification Covenants. The Developer hereby
agrees to indemnify and save the Seller, the Agency, the Surety and the Trustee
harmless from and against all claims, losses and damages, including reasonable
. legal fees and expenses, arising out of (i) the use, maintenance, condition or
management of, or from any work or thing done on , the Pratt/North Plaza Project or
the Pratt/North Plaza Site by the Developer or any other person (other than the
Agency) , (ii) any breach or default on the part of the Developer in the performance
of any of its obligations under this Agreement, (iii ) any act of negligence of the
Developer or any other person or of any of their respective agents, contractors,
servants, employees or licensees with respect to the Pratt/North Plaza Project or
the Pratt/North Plaza Site, or (iv) the construction, improvement and equipping of
the Pratt/North Plaza Project or the authorization of payment of the Construction
Costs, to the extent permitted by law. No indemnification shall be deemed to be
made under this Section or elsewhere in this Agreement for gross negligence or
intentional misconduct or breach of duty by the Agency, the Seller, the Trustee,
the Surety or their respective officers, agents, employees, successors or assigns.
Section 6.4. No Discrimination. Developer shall refrain from restricting
the rental , sale or lease of the Pratt/North Plaza Project or the Pratt/North Plaza
Site on the basis of race, color, creed, religion, sex, marital status, national
origin or ancestry of any person. All deeds, leases or contracts hereinafter
executed by Developer with respect to the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of all or any portion of the Pratt/North Plaza
Project and the Pratt/North Plaza Site shall contain and be subject to the
following nondiscrimination and nonsegregation clauses:
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(a) In deeds: "The grantee herein covenants by and for itself, its
heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin or ancestry in the sale, lease, sublease, transfer,
development, use, occupancy, tenure or enjoyment of the premises herein conveyed,
nor shall the grantee itself or any person claiming under or through it establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the premises herein conveyed. The foregoing
covenants shall run with the premises. "
(b) In leases: "The lessee herein covenants by and for itself, its
heirs, executors, administrators and assigns, and all persons claiming under or
through them and this lease is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee
itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall
the transferee itself or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the premises herein conveyed. These
provisions shall be binding upon and shall obligate the parties hereto and any
assignee or other transferee under this agreement."
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ARTICLE VII
iASSIGNMENTS AND AMENDMENTS
Section 7. 1. Assignment by the Agency. Certain of the Agency' s rights
under this Agreement, including the right to receive and enforce payment of the
Installment Payments to be made by the Developer under this Agreement, have been
assigned to the Seller pursuant to the Second Assignment Agreement and by the
Seller to the Trustee pursuant to the First Assignment Agreement, to each of which
assignments the Developer hereby consents.
Section 7.2. Assignment, Selling and Leasing. The Pratt/North Plaza
Project and the Pratt/North Plaza Site may be leased, as a whole or in part, by the
Developer without the prior written consent of the Trustee, the Agency, the Seller,
the Insurer or the Surety. The Developer may at any time, without the consent of
the Trustee, the Agency, the Seller, the Insurer or the Surety, sell or otherwise
transfer all or a portion of the Pratt/North Plaza Project and the Pratt/North
Plaza Site, and assign its rights and obligations hereunder in connection
therewith, to any entity which is in any way related or affiliated with the
Developer, incuding but not limited to any Program Participant, provided that the
obligations of the Guarantor under the Guaranty Agreement remain unaffected
thereby. The Developer may, with the prior written consent of the Surety
Representative (which written consent shall not unreasonably be withheld) , sell or
otherwise transfer to another legal entity all or any portion of the Pratt/North
Plaza Project and the Pratt/North Plaza Site, and assign its rights and obligations
hereunder in connection therewith, to any other entity provided that: (a) the
transferee legal entity shall be qualified to do business in the State of
• California and, if such transferee legal entity is not organized and existing under
the laws of the United States of America or any state or territory thereof or the
District of Columbia, shall deliver to the Agency and the Trustee an irrevocable
consent to service of process in, and to the jurisdiction of the courts of, the
State of California with respect to any action or suit, at law or in equity, brought
by the Agency or the Trustee to enforce this Agreement or the Deed of Trust; (b)
such legal entity shall assume in writing the obligations of the Developer under
this Agreement and the Deed of Trust with respect to the Pratt/North Plaza Project
and the Pratt/North Plaza Site or the portion thereof so sold or transferred; (c)
there shall have been filed with the Trustee and the Agency an opinion of
Independent Counsel to the effect that such sale or transfer does not adversely
affect the tax—exempt status of the interest represented by the Certificates; and
(d) in connection with such sale or transfer the Trustee shall be furnished, within
thirty (30) days following such sale or transfer, with a certificate of the
Developer Representative stating that in the opinion of such Developer
Representative none of the covenants contained in this Agreement will be violated
as a result of such sale or transfer. Nothing herein is intended to restrict or
require any consent to the leasing by the Developer of all or any part of the
Pratt/North Plaza Project or the Pratt/North Plaza Site, in connection with which
the Developer does also purport to assign its obligations hereunder.
Section 7.3. Amendment of this Agreement. The Developer and the Agency
will not alter, modify or cancel , or agree or consent to alter, modify or cancel ,
this Agreement, except pursuant to and in accordance with Article X of the Trust
Agreement.
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ARTICLE VIII
iEVENTS OF DEFAULT AND REMEDIES
Section 8. 1. Events of Default Defined. The following shall be "Events of
Default" under this Agreement and the terms "Events of Default" and "default" shall
mean, whenever they are used-in this Agreement, any one or more of the following
events:
(a) Failure by the Developer to pay any Installment Payment or any
other payment required to be paid or prepaid hereunder when and as the same
become due and payable, and the continuation of such failure for a period of
two (2) calendar days following the later of (i) the date on which such
Installment shall have becoe due and payable, or (ii) the date on which the
Trustee shall have notified the Developer of such failure.
(b) Failure by the Developer to observe and perform any covenant,
condition or agreement on its part to be observed or performed hereunder,
other than as referred to in clause (a) of this Section, or the breach of any
material warranty by the Developer herein if in the reasonable opinion of
the Trustee such breach adversely affects the interests of the Certificates
Owners, for a period of sixty (60) days after written notice specifying such
failure or breach and requesting that it be remedied has been given to the
Developer by the Agency, the Surety or the Trustee, 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 Developer within the applicable period and
diligently pursued until the default is corrected.
(c) The entry of an order or decree, by a court having jurisdiction in
the premises, for relief against the Developer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official ) of the Developer or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of such order or decree unstayed and in
effect for a period of sixty (60) consecutive days; or the institution or
commencement by the Developer of a voluntary case under any applicable
bankruptcy, insolvency or other similar law nor or hereafter in effect, or
the consent by it to the entry of an order for relief against it in any
involuntary case under any such law, or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official ) of the Developer or of any substantial part of its property, or
the making of it of an assignment for the benefit of creditors, or the
failure of it generally to pay its debts as they become due, or the
admission by it in writing of such failure, or if a receiver of the business
or of the property or assets of the Developer shall be appointed by any
court and such appointment is not set aside within sixty (60) days.
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(d) The entry of an order or decree, by a court having jurisdiction in
. the premises, for relief against the Guarantor in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official ) of the Guarantor or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of such order or decree unstayed and in
effect for a period of sixty (60) consecutive days; or the institution or
commencement by the Guarantor of a voluntary case under any applicable
bankruptcy, insolvency or other similar law nor or hereafter in effect, or
the consent by it to the entry of an order for relief against it in any
involuntary case under any such law, or to the appointment of a receiver,
liquidator, assignee, custodian , trustee, sequestrator (or other similar
official ) of the Guarantor or of any substantial part of its property, or
the making of it of an assignment for the benefit of creditors, or the
failure of it generally to pay its debts as they become due, or the
admission by it in writing of such failure, or if the receiver of the
business or of the property or assets of the Guarantor shall be appointed by
any court and such appointment is not set aside within sixty (60) days.
Section 8.2. Acceleration. Whenever any Event of Default referred to in
subsections (a) , (c) or (d) of Section 8. 1 hereof shall have happened and be
continuing, the Trustee as assignee of the Agency may (and under certain
circumstances shall ) take any one or more of the following remedial steps:
(a) If an Event of Default has occurred as defined under subsection
(d) of Section 8.1 and is continuing, then and in each and every such case during
the continuance of such Event of Default, unless the principal components of all of
the Installment Payments shall have already become due and payable, the Trustee
shall , but only upon the written request of the Insurer or, if the Insurance Policy
shall not then be in effect, upon the written request of the Surety Representative,
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, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Second Installment Sale
Agreement or in the First Installment Sale Agreement or the Trust Agreement to the
contrary notwithstanding.
(b) If an Event of Default has occurred under subsections (a) or (c)
of Section 8.1 and is continuing, the Trustee shall , but only upon the written
request of the Insurer or, if the Insurance Policy shall not then be in effect, upon
the written request of the Surety Representative, 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, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Second Installment Sale Agreement or in the First
Installment Sale Agreement or the Trust Agreement to the contrary notwithstanding.
The foregoing provisions, are 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
21
(a) , (c) or (d) only of Section 8. 1, 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 or the Surety
Bond, 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 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.
Section 8.3. Other Remedies. Upon the occurrence of an Event of Default
hereunder, the Agency may pursue any available remedy, in addition to the remedies
specified in Section 8.2, at law or in equity to enforce the rights of the Agency
hereunder.
Section 8.4. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Agency is intended to be exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay
in exercising or omission to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be a waiver thereof,
but any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the exercise of any remedy reserved to it
in this Article it shall not be necessary to give any notice, other than such notice
as may be required in this Article or by law.
Section 8.5. Agreement to Pay Attorneys' Fees and Expenses. In the event
the Developer should default under any of the provisions hereof and the Agency or
the Trustee should employ attorneys or incur other expenses for the collection of
moneys or the enforcement or performance or observance of any obligation or
agreement on the part of the Developer herein contained, the Developer agrees that
it will on demand therefor pay to the Agency, the Seller or the Trustee the
reasonable fees of such attorneys and such other reasonable expenses so incurred by
the Agency, the Seller or the Trustee.
Section 8.6. No Additional Waiver by One Waiver. In the event any
agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
Section 8.7. Trustee and Certificate Owners to Exercise Rights. Such
rights and remedies as are given to the Agency under this Article V have been
assigned to the Seller under the Second Assignment Agreement and to the Trustee
22
under the First Assignment Agreement, to all of which assignments the Developer
hereby consents. Such rights and remedies shall be exercised by the Trustee and
the Owners of the Certificates as provided in the Trust Agreement.
Section 8.8. _Application of Proceeds. All amounts derived as a result of an
Event of Default hereunder shall be transferred to the Trustee promptly upon
receipt thereof and shall be deposited by the Trustee in the Installment Payment
Fund to be applied as provided in Article XIII of the Trust Agreement.
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ARTICLE IX
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 9. 1. Advance Prepayment. Notwithstanding any other provision of
this Second Installment Sale Agreement, the Developer may on any date prepay the
Installment Payments in full by depositing with the Trustee: (i ) an amount of cash
which, together with the Proportionate Share of amounts on deposit in the
Installment Payment Fund, the Insurance and Condemnation Fund and the Reserve Fund,
is sufficient to pay all unpaid Installment Payments, including the principal and
interest components thereof, in accordance with the Installment Payment schedule
set forth in Exhibit A, or (ii) Federal Securities together with cash, if required,
in such amount as will , in the opinion of an independent certified public
accountant, together with interest to accrue thereon and, if required, the
Proportionate Share of the moneys or Federal Securities then on deposit in the
Installment Payment Fund, the Insurance and Condemnation Fund and the Reserve Fund,
be fully sufficient to pay all unpaid Installment Payments on their respective
Installment Payment Dates or by prepayment thereof pursuant to Section 6.2 hereof,
as the Developer shall instruct in writing at the time of said deposit. In the
event of a deposit pursuant to this Section, all obligations of the Developer under
this Second Installment Sale Agreement, and all security provided by this Second
Installment Sale Agreement for said obligations, shall cease and terminate,
excepting only the obligation of the Developer to make, or cause to be made,
Installment Payments from the deposit made by the Developer pursuant to this
Section. Said deposit shall be deemed to be and shall constitute a special fund for
the payment of Installment Payments in accordance with the provisions of this
Second Installment Sale Agreement.
. Section 9.2. Optional Prepayment. The Developer may prepay the unpaid
principal balance of the Installment Payments, in whole or in part, on any
semiannual Installment Payment Date following September 1, 1991, at a prepayment
price equal to 100% of the unpaid principal balance of the Installment Payments,
together with accrued interest thereon to such Installment Payment Date, plus a
premium (expressed as a percentage of the principal amount to be prepaid) , as
follows:
Prepayment 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%
Section 9.3. Extraordinary Prepayment. The Developer shall be obligated to
prepay the unpaid principal balance of the Installment Payments, in whole or in
part, to the extent of the Net Proceeds of insurance or eminent domain award which
are not used to repair, replace or rebuild the Pratt/North Plaza Project but are
transferred from the Insurance and Condemnation Fund to the Installment Payment for
the purpose of making such prepayment pursuant to Section 5. 1 hereof and Section
7.02 of the Trust Agreement, on any Installment Payment Date, at a prepayment price
equal to the principal amount to be prepaid together with accrued interest thereon
to such Installment Payment Date, without premium.
24
Section 9.4. Prepayment From Excess Construction Funds. The Developer
• shall be obligated to prepay the unpaid principal balance of the Installment
Payments, in whole or in part, from the Proportionate Share of the amounts
transferred from the Construction Fund to the Installment Payment fund for such
purpose, on September 1 , 1987, at a prepayment price equal to the principal amount
to be prepaid together with accrued interest thereon to the prepayment date,
without premium. All amounts so transferred to the Installment Payment Fund from
the Construction Fund shall be credited to the Developer' s obligations under this
Section 9.4.
•
25
ARTICLE X
ADMINISTRATIVE PROVISIONS
Section 10. 1. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered or
deposited in the United States mail in certified or registered form with postage
fully prepaid:
If to the Agency: Community Redevelopment Agency of the
City of Palm Springs
3200 Tahquitz-McCallum Way
Palm Springs, California 92262
Attention: Redevelopment Director
If to the Trustee: Security Pacific National Bank
333 South Hope Street, 42nd Floor
Los Angeles, California 90071
Attention: Corporate Trust
Services H42-9
If to the Seller: Desert Fashion Plaza, Inc.
7620 Market Street
Youngstown, Ohio 44512
Attention: General Counsel
If to the Developer: North Plaza Associates
7620 Market Street
Youngstown , Ohio 44512
Attention: General Counsel
With a copy to:
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, Ohio 44512
Attention: General Counsel
Gerson I . Fox
1430 Huntington Drive
Duarte, California 91010
David Blum
c/o Gerson I . Fox
1430 Huntington Drive
Duarte, California 91010
Pratt Hotel Corporation
4099 McEwen Street, Suite 800
Dallas, Texas 75234
Attention: Mr. William B. Moriarty, II
26
The Arthur Gilbert and
Rosalinde Gilbert 1982 Trust
9570 Wilshire Boulevard
Beverly Hills, California 90212
If to the Surety: Industrial Indemnity Company
255 California Street
San Francisco, California 91203
Attention: Financial Guarantees
The Seller, the Trustee, the Developer, the Surety and the Agency, by notice given
hereunder, may designate different addresses to which subsequent notices,
certificates or other communications will be sent. In addition, the Developer may
from time to time designate additional parties to whom a copy of any notice,
certificate or other communication required to be given to the Developer hereunder
shall also be given, as set forth in written notice given by the Developer to the
Seller, the Trustee, the Surety and the Agency.
Section 10.2. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Developer and the Agency and their respective
successors and assigns.
Section 10.3. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
Section 10.4. Net Contract. This Agreement shall be deemed and construed
to be a "net contract" , and the Developer shall pay absolutely and absolutely net
during the Term of this Agreement the Installment Payments and all other payments
required hereunder, free of any deductions, without abatement, diminution or set-
off.
Section 10.5. Further Assurances and Corrective Instruments. The
Developer and the Agency agree that they will , from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required for
correcting any inadequate or incorrect description of the Pratt/North Plaza Project
or the Pratt/North Plaza Site hereby sold or intended so to be or for carrying out
the expressed intention of this Agreement.
Section 10.6. Execution in Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
Section 10.7. Applicable Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California.
Section 10.8. 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.
27
Section 10.9. Developer, Surety and Agency Representatives. Whenever
under the provisions of this Agreement the approval of the Developer, the Surety or
the Agency is required, or the Developer or the Agency is required to take some
action at the request of the other, such approval of such request shall be given for
the Developer, by the Developer Representative, for the Surety by the Surety
Representative and for the Agency by the Agency Representative, and any party
hereto shall be authorized to rely upon any such approval or request.
Section 10. 10. Captions. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent of
any provisions of Sections of this Agreement.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names by their respective duly authorized officers,
• all as of the day and year first above written.
PRATT/NORTH PLAZA ASSOCIATES, as
purchaser
By DESERT FASHION PLAZA, INC. , an Ohio
corporation, as general partner_
By y
Vice President `
Goa' d S, akolov
By
MTHUk 0. woLFCALESPcretary/p
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, as seller
By
Chairman
Attest:
•
Secretary
(S EAL)
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
• executed in their respective names by their respective duly authorized officers,
all as of the day and year first above written.
PRATT/NORTH PLAZA ASSOCIATES, as
purchaser
By DESERT FASHION PLAZA, INC. , an Ohio
corporation, as general partner
By
Vice President
By
Secretary
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, as seller
By —
i n
Attest:
Secretary
(SEAL) ��
28
EXHIBIT A
SCHEDULE OF INSTALLMENT PAYMENTS
Installment Aggregate Aggregate
Payment Date Principal Payment** Interest Payment"
Closing Date* $ -0- $3,481,500
March 1, 1985 -0- 1,160,500
September 1, 1985 -0- 1 ,160,500
March 1, 1986 -0- 1,160,500
September 1, 1986 -0- 1,160,500
March 1, 1987 -0- 1,160,500
September 1, 1987 -0- 1,160,500
March 1, 1988 -0- 1,160,500
September 1, 1988 -0- 1,160,500
March 1, 1989 -0- 1 ,160,500
September 1, 1989 -0- 1,160,500
March 1 , 1990 -0- 1,160,500
September 1, 1990 -0- 1,160,500
March 1, 1991 -0- 1,160,500
September 1, 1991 -0- 1 , 160,500
March 1, 1992 -0- 1 ,160,500
September 1, 1992 -0- 1,160,500
. March 1, 1993 -0- 1,160,500
September 1, 1993 -0- 1,160,500
March 1, 1994 -0- 1,160,500
September 1, 1994 -0- 1, 160,500
March 1, 1995 -0- 1 ,160,500
September 1, 1995 -0- 1,160,500
March 1, 1996 -0- 1,160,500
September 1, 1996 -0- 1,160,500
March 1, 1997 -0- 1,160,500
September 1, 1997 4,000,000 1,160,500
March 1, 1998 -0- 962,500
September 1, 1998 7,000,000 962,500
March 1, 1999 -0- 612,500
September 1, 1999 $12,250,000 612,500
*To be provided from a portion of proceeds of the Certificates pursuant to Section
3. 1 hereof.
**Installment Payment for any Installment Payment Date to be calculated by
multiplying Aggregate Principal Payment and Aggregate Interest Payment opposite
such Installment Payment Date by the Proportionate Share.
30
EXHIBIT
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, Pane 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" !Jest,
80.00 feet;
THENCE parallel with the East line of said Block 22, South 0°08' 00" East,
0.00 feet;
THENCE parallel with the North line of said Block 22 , South 89°49' 50" West ,
177 .48 feet to a point in the ,lest 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;
THENCE along the North line of said Block 22 , also being the North line of
Lots 34 to 36 inclusive and Lot 1 , North 89049' 50" East , 257.4R feet , to. the
POINT OF BEGINNING.
Containing 95,400.02 S. F./2 .19 Acres.
}�rti L I'RKL'Ei.
2705F JHHW:CFA:dfd 8/01/84
SECOND ASSIGNMENT AGREEMENT
THIS SECOND ASSIGNMENT AGREEMENT, made and entered into as of the 1st day of
September, 1984, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS (the "Agency") and DESERT FASHION PLAZA, INC. (the "Seller");
WITNESSETH:
In the joint and mutual exercise of their powers, in consideration of the
mutual covenants herein contained, and for other valuable consideration, the
parties hereto recite and agree as follows:
Section 1. Recitals.
(a) The Agency and the Seller have entered into an agreement entitled
"First Installment Sale Agreement" , dated as of September 1, 1984 (the "First
Installment Sale Agreement") , whereby the Seller has agreed to construct, improve
and equip certain property therein defined as the "Project" , and to sell the
Project to the Agency in the manner and on the terms set forth in the First
Installment Sale Agreement.
(b) The Agency and each of North Plaza Associates, South Plaza
Associates and Pratt/North Plaza Associates (collectively, the "Developers") have
entered into an agreement entitled "Second Installment Sale Agreement" dated as of
September 1, 1984, (collectively, the "Second Installment Sale Agreements") ,
whereby the Agency has agreed to sell the Project to each of the Developers and each
of the Developers has agreed to pay certain installment payments under Section
4.3(a) thereof (collectively, the "Installment Payments").
(c) In order to secure the obligations of the Agency under the First
Installment Sale Agreement, the Agency, as purchaser under the First Installment
Sale Agreement, has agreed to assign and transfer certain of its rights under the
Second Installment Sale Agreement to the Seller.
(d) Each of the parties has authority to enter into this Second
Assignment Agreement, and has taken all action necessary to authorize its officers
to execute it.
Section 2. Assignment.
The Agency, as purchaser under the First Installment Sale Agreement, hereby
transfers, assigns and sets over to the Seller, all of the Agency' s rights under
the Second Installment Sale Agreements (excepting only the Agency' s rights under
Sections 4.3(c) , 6.4 and 8.4 of the Second Installment Sale Agreements) , including
without limitation (1) the right to receive and collect all of the Installment
Payments (including prepayments thereof), (2) its right to receive and collect any
proceeds of insurance maintained thereunder, or of any condemnation award rendered
with respect to the Site and the Project, and (3) its rights to exercise such rights
and remedies conferred on the Agency pursaunt to the Second Installment Sale
Agreements as may be necessary or convenient (i ) to enforce payment of the
• Installment Payments and prepayments thereof, or (ii) otherwise to protect the
interests of the Agency thereunder in the event of a default by the Developer the
Second Installment Sale Agreement. All right assigned by the Agency hereunder
shall , in accordance with the First Installment Sale Agreement, be assigned by the
Seller to Security Pacific National Bank, as trustee (the "Trustee") under that
certain Trust Agreement dated as of September 1, 1984, by and among the Seller, the
Agency and said Trustee.
Section 3. Acceptance.
The Seller hereby accepts such assignment for the purpose of discharging the
installment payments to be made pursuant to Section 4.3(a) of the First Installment
Sale Agreement by the Agency.
Section 4. Covenant Not To Assign.
Except for the assignment by the Seller to the Servicing Agent of the rights
of the Agency assigned hereunder, pursuant to that certain First Assignment
Agreement dated as of September 1 , 1984, the Seller agrees not to assign or
hypothecate in any manner whatsoever any of the rights of the Agency hereunder
assigned to the Seller.
IN WITNESS WHEREOF, the parties have executed this Second Assignment
Agreement by their officers thereunto duly authorized as of the day and yar first
above written.
• COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
By
Chairman
[SEAL]
Attest:
Secretary
DESERT FASHION PLAZA INC.
By
Title: Richard S . Sokolov,
Vice President
Attu /� r
Arthur D. WoltcIdle, jr ,
Secretary
2
and remedies conferred on the Agency pursaunt to the Second Installment Sale
Agreements as may be necessary or convenient (i) to enforce payment of the
Installment Payments and prepayments thereof, or (ii) otherwise to protect the
interests of the Agency thereunder in the event of a default by the Developer the
Second Installment Sale Agreement. All right assigned by the Agency hereunder
shall , in accordance with the First Installment Sale Agreement, be assigned by the
Seller to Security Pacific National Bank, as trustee (the "Trustee") under that
certain Trust Agreement dated as of September 1, 1984, by and among the Seller, the
Agency and said Trustee.
Section 3. Acceptance.
The Seller hereby accepts such assignment for the purpose of discharging the
installment payments to be made pursuant to Section 4.3(a) of the First Installment
Sale Agreement by the Agency.
Section 4. Covenant Not To Assign .
Except for the assignment by the Seller to the Servicing Agent of the rights
of the Agency assigned hereunder, pursuant to that certain First Assignment
Agreement dated as of September 1, 1984, the Seller agrees not to assign or
hypothecate in any manner whatsoever any of the rights of the Agency hereunder
assigned to the Seller.
IN WITNESS WHEREOF, the parties have executed this Second Assignment
Agreement by their officers thereunto duly authorized as of the day and yar first
above written.
• COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
By
[S E A L] Ch an
Attest:
Secretary
DESERT FASHION PLAZA INC.
By
Title:
2