HomeMy WebLinkAbout00090C - DESERT FASHION PLAZA 1ST INSTALLMENT SALE AGR 2700F JHHW:CFA:dfd:jog 7/31/84
8/10/84
8/21/84
9/15/84
9/20/84
9/21/84
. Desert Fashion Plaza 1st
Installment Sale Agr for purch
& sale of land & prkg facil
AGREEMENT #90, 9-1-84
Res #238, 8-15-84
FIRST INSTALLMENT SALE AGREEMENT
by and between
DESERT FASHION PLAZA, INC.
as seller
and
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
as purchaser
Dated as of September 1, 1984
TABLE OF CONTENTS
Page
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
the Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Representations, Covenants and Warranties of
theSeller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
ACQUISITION AND CONSTRUCTION OF THE PROJECT
Section 3. 1 Agreement to Acquire and Construct. . . . . . . . . . . . 9
Section 3.2 Application of Amounts in Construction Fund. . . . . . . . . 9
Section 3.3 Establishment of Completion Date;
Disposition of Excess Proceeds. . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Seller Required to Pay in Event
Construction Fund Insufficient. . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
SALE OF PROJECT; TERMINATION OF THIS
AGREEMENT; INSTALLMENT PAYMENTS; TITLE
Section 4. 1 Sale 11
. . . . . . . . . . . .
Section 4.2 Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.3 Installment Payments; Additional Payments. . . . . . . . . .
• 11
Section 4.4 Special Obligations; Limitation of Liability to
Revenues; Waiver of Personal Liability. . . . . . . . . . . . 12
Section 4.5 Assignment of Revenues and Rights Under
Second Installment Sale Agreements. . . . . . . . . . . . . . . . 12
Section 4.6 Title to the Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.7 Consent to Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.8 No Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.9 Limitation on Seller' s Liability. . . . . . . . . . . . . . . . . . . . 13
(i)
Page
. ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5. 1 Events of Default Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.2 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.4 No Remedy Exclusive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.5 No Additional Waiver by One Waiver. . . . . . . . . . . . . . . . . . 16
Section 5.6 Liability Limited to Revenues. . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.7 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.8 Trustee and Certificate Owners to Exercise Rights. . . 16
ARTICLE XI
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 6.1 Advance Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.2 Optional Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.3 Extraordinary Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4 Prepayment From Excess Construction Funds. . . . . . . . . . . 18
ARTICLE VII
ADMINISTRATIVE PROVISIONS
Section 7. 1. Amendment of this Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.3. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.4. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.5. Net Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.6. Further Assurances and Corrective Instruments. . . . . . . 19
Section 7.7. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.8. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7 .9. Seller, Surety, Developer and Agency Representatives 20
Section 7. 10. Payment on Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7. 11. Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(ii )
FIRST INSTALLMENT SALE AGREEMENT
THIS FIRST INSTALLMENT SALE AGREEMENT, dated as of September 1, 1984, by and
between DESERT FASHION PLAZA, INC. , a corporation duly organized and existing under
the laws of the State of Ohio, as seller (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, as
purchaser (the "Agency") ;
WITNESSETH:
WHEREAS, the Agency wishes to finance certain public parking facilities and
related and appurtenant facilities and property described more fully in Exhibit B
hereto (the "Project") to be located on certain land within the Palm Springs
Central Business District Redevelopment Project of the Agency; and
WHEREAS, the Agency has requested the Seller to assist in the financing of
the Project and to that end the Agency has agreed to purchase the Project from the
Seller 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 Surety
and each of the Developers.
"Agreement" or "First Installment Sale Agreement" means this First
Installment Sale Agreement and any duly authorized and executed amendment hereto.
"Certificates" means the $23,250,ODO 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
hereof.
"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
affiliates or the Guarantor for all advances and payments made in connection with
2
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 under the Trust Agreement.
"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 hereunder as defined in Section
5.1 hereof.
3
"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 Seller, 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.
"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 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 Agency pursuant to Section 4.3(a) of this Agreement, as set forth in Exhibit A
hereto, and includes any prepayment thereof or other amount required to be credited
towards the payment thereof.
"Insurance and Condemnation Fund" means the fund by that name established
and held by the Trustee pursuant to Article VII of the Trust Agreement.
"Law" means the 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 Project or the Site remaining after payment
therefrom of all expenses incurred in the collection thereof.
4
"Original Purchaser" means Birr, Wilson & Co. , Inc. , as original purchaser
of the Certificates.
"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 Certificate
shall be registered.
"Project" means the public parking structure to be constructed on the Site,
and all other buildings and related and appurtenant improvements, facilities,
property and improvements identified more particularly in Exhibit B attached
hereto.
"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 of the Trust Agreement.
"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.
"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.
"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.
5
"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 Palm Springs Central Business
District Redevelopment Project of the Agency in the City of Palm Springs,
California, described in Exhibit C hereto.
"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.
"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.
Exhibit B: The description of the Project.
Exhibit C: The description of real property constituting the Site.
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 Seller 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 Second Installment Sale Agreements, 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 Second Installment Sale Agreements, 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,
or upon the Project, except upon the 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 Project and the 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 Seller. The
Seller represents, covenants and warrants to the Agency as follows:
(a) Due Organization and Existence• Authorization. The Seller is a
corporation duly organized and existing under and by virtue of the laws of the
State of Ohio; is possessed of full power to construct, improve, equip and own the
Project, and to sell the same and to enter into this Agreement, the Trust
Agreement, the First Assignment Agreement and the Second Assignment Agreement; and
has duly authorized the execution and delivery of this Agreement, the Trust
Agreement, the Agency Agreement, the First Assignment Agreement and the Second
Assignment Agreement.
(b) No Violations. Neither the execution and delivery of this
Agreement, the Trust Agreement, the First Assignment Agreement or the Second
Assignment Agreement, nor the fulfillment of or compliance with the terms and
7
conditions hereof or thereof, nor the consummation of the transactions contemplated
hereby or thereby, conflicts with or results in a violation of or constitute an
event of default under the terms or provisions of any of the laws of the State of
California or under any instrument, agreement, undertaking, judgment or decree to
which the Seller is now a party or by which the Seller 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
Seller, except upon the Project.
(c) 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 Seller, nor to the best
of the knowledge of the Seller is there any basis therefor, wherein an unfavorable
decision, ruling or finding would materially adversely affect the transactions
contemplated by this Agreement or which, in any way, would materially adversely
affect the validity or enforceability of this Agreement, the Trust Agreement, the
First Assignment Agreement, the Second Assignment Agreement, or any agreement or
instrument to which the Seller is a party, used or contemplated for use in the
consummation of the transactions contemplated hereby or thereby.
(d) Use of Proceeds. The Project constitutes and will constitute land
or property of a character subject to the allowance for depreciation under Section
167 of the Code, and the Seller 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, 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.
(e) Tax-Exempt Status. The Seller 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 Installment Payments to federal income taxation.
8
ARTICLE III
so ACQUISITION AND CONSTRUCTION OF THE PROJECT
Section 3. 1. Agreement to Acquire and Construct. The Seller hereby agrees
to construct, improve and equip the Project on the Site as hereinafter provided.
Except as herein in this Article III expressly provided to the contrary, all
Construction Costs and Delivery Costs shall be paid from the Construction Fund as
hereinafter set forth.
Section 3.2. Application of Amounts in the Construction Fund. In
accordance with the Trust Agreement, all of the proceeds of sale of the
Certificates shall be paid to the Trustee on the Closing Date. The Trustee shall
deposit a portion of said proceeds in the Installment Payment Fund (in an amount
equal to the advance Installment Payment required to be paid on the Closing Date)
and the Reserve Fund (in an amount equal to the Reserve Requirement) pursuant to
Section 2.07 of the Trust Agreement, and shall deposit the remainder of said
proceeds in the Construction Fund. Moneys in the Construction Fund shall be
applied to pay all Delivery Costs and all Construction Costs, all as provided in
Section 3.02 of the Trust Agreement, upon receipt of requisitions in the form set
forth in Section 3.02 of the Trust Agreement. The Project shall be constructed,
improved and equipped, and moneys disbursed from the Construction Fund to pay
Construction Costs, in all respects pursuant to this Agreement and the Trust
Agreement.
Section 3.3. Establishment of Completion Date; Disposition of Excess
Proceeds. The Completion Date shall be evidenced by a certificate signed by each
of the Developer Representatives stating that, except for amounts retained by the
Trustee at the Seller' s direction for any Construction Costs estimated by the
Seller to be paid or incurred thereafter, (i ) the construction, improvement and
equipping of the Project have been completed and all costs of labor, services,
materials and supplies used in connection therewith have been paid, (ii) all
equipment for the Project has been installed to the Seller Representative' s
satisfaction, such equipment so installed is suitable and sufficient for the
operation of the Project, and all costs and expenses incurred in the acquisition
and installation of such equipment have been paid, and (iii) all other facilities
necessary in connection with the Project have been acquired, constructed, improved
and equipped and all costs and expenses incurred in connection therewith have been
paid. Notwithstanding the foregoing, such certificate shall state that it is given
without prejudice to any rights against third parties which exist at the date of
such certificate or which may subsequently come into being. Forthwith upon
completion of the construction, improving and equipping of the Project, the Seller
agrees to cause such certificate to be furnished to the Agency Representative, the
Surety Representative, the Trustee and each of the Developer Representatives.
Upon the earlier of the filing of such certificate or July 1, 1987, any
amount not to be retained in the Construction Fund for payment of the Construction
Costs, and thereafter all amounts so retained 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 be withdrawn by the Trustee and applied as provided in
Section 3.03 of the Trust Agreement.
9
Section 3.4. Seller Required to Pay In Event Construction Fund
Insufficient. In the event the moneys in the Construction Fund available for
payment of the Construction Costs are not sufficient to pay the Construction Costs
in full , the Seller agrees to complete the construction of the Project and to pay to
the Trustee, for deposit into the Construction Fund, that portion of the
Construction Costs in excess of the moneys available therefor in the Construction
Fund. The Agency does not make any warranty, either express or implied, that the
moneys paid into the Construction Fund and available for payment of the
Construction Costs will be sufficient to pay all of the Construction Costs. In the
event the Seller pays any portion of the Construction Costs pursuant to the
provisions of this Section 3.4, the Seller shall not be entitled to any
reimbursement therefor from the Agency, the Trustee or the Owners of any of the
Certificates, nor shall the Seller be entitled to receive any increase in the
amounts payable under Section 3.4 hereof; provided that any moneys remaining in the
Construction Fund following completion of construction of the Project, to the
extent deposited therein from payments made by the Seller pursuant to this Section
3.4, shall be withdrawn from the Construction Fund by the Trustee and paid to the
Seller so long as the Seller is not then in default hereunder, notwithstanding the
provisions of Section 3.3 hereof.
10
ARTICLE IV
SALE OF PROJECT; TERMINATION OF THIS
AGREEMENT; INSTALLMENT PAYMENTS; TITLE
Section 4. 1. Sale. In consideration of the payment by the Agency of the
Installment Payments, the Seller hereby grants, conveys, bargains and sells the
Project to the Agency, and the Agency hereby purchases the Project from the Seller,
upon the terms and conditions set forth in this Agreement. The Seller and the
Agency agree that title to each component or item of the Project shall be deemed
vested in the Agency upon the installation thereof. The Purchase Price of the
Project shall be the sum of Twenty-Three Million Two Hundred Fifty Thousand Dollars
($23,250,000) , payable in installments together with interest thereon as set forth
in Section 4.3(a) hereof.
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 in full pursuant to Section 6. 1 hereof,
and all payments required to be paid by the Developers under Section 4.3 of the
Second Installment Sale Agreements shall have been paid in full or provision made
for such payment in full .
Section 4.3. Installment Payments; Additional Payments.
(a) Installment Payments. The Agency hereby agrees to pay, as the
purchase price of the Project hereunder, but only from the Revenues, the principal
amount of Twenty-Three Million Two Hundred Fifty Thousand Dollars ($23,250,000)
together with interest thereon, payable in the respective amounts and on the
respective Installment Payment Oates specified in Exhibit A. 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 VI and other than amounts required for payment of past due
principal or interest with respect to any Certificates not presented for payment)
shall be credited towards the Installment Payment then due and payable.
(b) Effect of Prepayment. In the event that the Agency prepays all
remaining Installment Payments pursuant to Article VI , the Agency' s obligations
under this Agreement shall thereupon cease and terminate, including but not limited
to the Agency' s obligation to pay Installment Payments under this Section. In the
event the Agency prepays less than all of the remaining principal components of the
Installment Payments pursuant to Article VI , 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 Seller to the Trustee pursuant to the First Assignment Agreement.
Accordingly, the Seller hereby directs the Agency, and the Agency hereby agrees, to
pay to the Trustee at 333 South Hope Street, Los Angeles, California 90071 ,
11
Attention: Corporate Trust Department, or such other place as the Trustee shall
direct in writing, all Installment Payments payable by the Agency 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.
Section 4.4. Special Obligation; Limitation of Liability to Revenues;
Waiver of Personal Liability. 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 hereunder or for the maintenance or operation of the Project, nor shall
any other funds or property of the Agency be liable in any manner whatsoever for the
payment of the Installment Payments.
Subject to the first paragraph of this Section 4.4, the Agency' s obligation
to pay Installment Payments from Revenues and observe the other agreements on its
part contained in this Agreement shall be absolute and unconditional . Until such
time as all Installment Payments have been fully paid, the Agency (i ) will not
suspend or discontinue paying the Installment Payments when due, (ii) will perform
and observe all of its other agreements contained in this Agreement, and (iii) will
not terminate this Agreement for any cause, including, without limiting the
generality of the foregoing, failure to complete the Project, any acts or
circumstances that may constitute failure of consideration, destruction of or
damage to the Project, commercial frustration of purpose, any change in the laws of
the United States of America or the State of California or any failure of the
Trustee, the Developers or the Seller to perform and observe any agreement, whether
. express or implied, or any duty, liability or obligation arising out of or
connected with this Agreement or the Second Installment Sale Agreements.
No Agency member, officer, agent or employee shall be individually or
pesonally liable for the payment of the Installment Payments or be subject to any
personal liability or accountability by reason of the execution, delivery or
performance by the Agency of this Agreement; but nothing herein contained shall
relieve any such officer, agent or employee from the performance of any official
duty provided by law or by this Agreement.
Section 4.5. Assignment of Revenues and Rights under Second Installment
Sale Agreement. All Revenues shall be applied to the obligations of the Agency
hereunder. The Agency has, in the Second Assignment Agreement, transferred,
assigned and set over to the Seller all of the Revenues and all of the Agency' s
rights under the Second Installment Sale Agreements to exercise such rights and
remedies conferred upon the Agency thereunder as may be necessary to enforce
payment of the Revenues thereunder when due or otherwise protect its interests in
an event of default thereunder. The Trustee, as assignee of the Seller under the
First Assignment Agreement, shall be entitled to collect and receive all of the
Revenues. All of the Revenues are assigned to the payment and prepayment of the
Installment Payments, and shall be credited towards the payment and prepayment of
the obligations of the Agency hereunder.
•
12
Section 4.6. Title to the Project. The Seller hereby represents and
• warrants that fee title to the Project shall be transferred from the Seller to the
Agency hereby, and that fee title to the Project shall be vested in the Agency at
the times specified in Section 4. 1, subject to various encumbrances to all of which
the Agency hereby consents. The Seller and the Seller Representative shall take
all actions necessary to authorize, execute and deliver to the Agency any other
documents necessary to vest in the Agency all of the Seller' s rights in and title to
the Project. Notwithstanding the foregoing provisions of this Section 4.6,
however, title to the respective portions of the Project shall be vested in each of
the Developers concurrently with the vesting of title in the Agency hereunder,
pursuant to and in accordance with the respective Second Installment Sale
Agreements.
Section 4.7. Consent to Assignment. The Seller' s rights under this
Agreement, including the right to receive and enforce payment of the Installment
Payments to be made by the Agency under this Agreement, have been assigned to the
Trustee pursuant to the First Assignment Agreement, to which assignment the Agency
hereby consents.
Section 4.8. No Merger. It is the express intention of the parties hereto
that this Agreement and the obligations of the parties hereunder shall remain
separate and distinct from each of the Second Installment Sale Agreements and the
obligations of the parties hereunder, and that no merger of title or interest shall
occur or be deemed to occur as a result of the relationship of interest between any
of the Developers and the Seller.
Section 4.9. Limitation on Seller' s Liability. Notwithstanding the
foregoing, or any other provision in this Agreement or any other agreement,
instrument or document, neither the Seller nor any present or future partner of the
Seller, nor any present or future individual general partner of any partnership
which is now or hereafter a general partner of the Seller, 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 Seller 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 or any of the Second Installment Sale Agreements, neither the Trustee nor
the Agency shall have the right to proceed directly against the Seller, 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 Seller provided by law
or by any other agreement, instrument or document.
13
ARTICLE V
. EVENTS OF DEFAULT AND REMEDIES
Section 5. 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, anyone or more of the following
events:
(a) Failure by the Agency 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.
(b) Failure by the Agency 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 Agency herein if in the reasonable opinion of the
Trustee such breach adversely affects the interests of the Certificate
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
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 the Trust Agreement to observe and perform
any material covenant, condition or agreement on its part to be observed or
performed thereunder 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 5. 1, 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 defaulting party by any
other party to the Trust 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 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 5.2. Acceleration. Whenever any Event of Default referred to in
subsection (a) of Section 5. 1 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 earlir of
14
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 due and payable, anything in this First Installment Sale
Agreement or in the 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 then 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, 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 Insurer, 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 5.3. Other Remedies. Upon the occurrence of an event of default
hereunder, the Trustee as assignee of the Seller may pursue any available remedy,
in addition to the remedies specified in Section 5.2, at law or in equity to enforce
the rights of the Trustee hereunder and under the Second Installment Sale
Agreements.
Section 5.4. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Seller or the Trustee is intended to be exclusive and every such
remedy shall be cumulative and shall be in addition to every other remedy given
15
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 exercise of any remedy
reserved 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 5.5. 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 5.6. Liability Limited to Revenues. Notwithstanding anything in
this Agreement, the Agency' s liability to pay and prepay the Installment Payments
and other amounts hereunder shall be limited solely to the Revenues as provided in
Section 4.4, and no Agency funds or property other than the Revenues shall be
liable to pay or prepay any Installment Payment or any such other amount in the
event of deficiency in the Revenues for such purpose.
Section 5.7. Application of Proceeds. All amounts derived by the Seller or
the Trustee 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.
Section 5.8. Trustee and Certificate Owners to Exercise Rights. Such
rights and remedies as are given to the Seller under this Article V have been
assigned to the Trustee under the First Assignment Agreement, to which assignment
the Agency hereby consents. Such rights and remedies shall be exercised by the
Trustee and the Owners of the Certificates as provided in the Trust Agreement.
16
ARTICLE VI
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 6. 1. Advance Prepayment. Notwithstanding any other provision of
this First Installment Sale Agreement, the Agency may on any date prepay the
Installment Payments in whole or in part by depositing with the Trustee: (i) an
amount of cash which, in the case of such prepayment in whole, together with
amounts on deposit in the Installment Payment Fund, the Insurance and Condemnation
Fund and the Reserve Fund, is sufficient to pay all or a portion of the 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 and in the case of such prepayment in whole, all or
a portion of 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 or a portion of the unpaid Installment Payments on their
respective Installment Payment Dates or by prepayment thereof pursuant to Section
6.2 hereof, as the Agency shall instruct in writing at the time of said deposit. In
the event of a deposit pursuant to this Section sufficient to pay all of the unpaid
Installment Payments, all obligations of the Agency under this First Installment
Sale Agreement, and all security provided by this First Installment Sale Agreement
for said obligations, shall cease and terminate, excepting only the obligation of
the Agency to make, or cause to be made, Installment Payments from the deposit made
by the Agency 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 First Installment Sale Agreement. Any
advance prepayment made by any of the Developers pursuant to Section 9. 1 of the
respective Second Installment Sale Agreements shall be credited to the payment
permitted to be made by the Agency under this Section 6. 1.
Section 6.2. Optional Prepayment. The Agency shall be obligated to prepay
the unpaid principal balance of the Installment Payments, in whole or in part, in
the event any of the Developers exercises its option to prepay its obligations in
full under Section 9.2 of the respective Second Installment Sale Agreements and
from the Revenues derived from such exercise, 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 6.3. Extraordinary Prepayment. The Agency shall be obligated to
prepay the unpaid principal balance of the Installment Payments, in whole or in
17
part, from the Revenues derived from any prepayment made by any of the Developers
pursuant to Section 9.3 of the respective Second Installment Sale Agreement from
the Net Proceeds of insurance or eminent domain award, 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.
Section 6.4. Prepayment From Excess Construction Funds. The Agency shall
be obligated to prepay the unpaid principal balance of the Installment Payments, in
whole or in part, from the Revenues derived from the prepayment made by the
Developers pursuant to Section 9.4 of the Second Installment Sale Agreements from
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.
18
ARTICLE VII
ADMINISTRATIVE PROVISIONS
Section 7. 1. Amendment of this Agreement. The Agency and the Seller 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.
Section 7.2. 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 Developers: At the respective addresses and with
the respective copies set forth in
Section 10. 1 of each of the Second
Installment Sale Agreements
If to the Surety: Industrial Indemnity Company
255 California Street
San Francisco, California 94111
Attention: Corporate Secretary
The Seller, the Trustee, the Developers, the Surety and the Agency, by notice given
hereunder, may designate different addresses to which subsequent notices,
certificates or other communications will be sent.
Section 7.3. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Seller and the Agency and their respective successors
and assigns.
Section 7.4. 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 7.5. Net Contract. This Agreement shall be deemed and construed to
be a "net contract" , and the Agency shall pay absolutely net during the Term of this
Agreement the Installment Payments and all other payments required hereunder, free
of any deduction, without abatement, diminution or set—off.
Section 7.6. Further Assurances and Corrective Instruments. The Seller
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
19
any inadequate or incorrect description of the Site or the Project hereby sold or
• intended so to be or for carrying out the expressed intention of this Agreement.
Section 7.7. 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 7.8. Applicable Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California.
Section 7.9. Seller, Surety, Developer and Agency Representatives.
Whenever under the provisions of this Agreement the approval of the Seller, the
Surety, any of the Developers or the Agency is required, or the Seller, the Surety,
any of the Developers 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 Seller by the
Seller Representative, for the Surety by the Surety Representative, for a Developer
by its Developer 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 7.10. Payment on Business Day. In the event that any amount is
required to be paid hereunder on a day which is not a Business Day, such payments
shall be required to be made hereunder on the next preceding Business Day. As used
herein, the term "Business Day" shall mean 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 and on which the New York Stock Exchange is not closed.
Section 7. 11. 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.
•
20
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.
DESERT FASHION PLAZA, INC. , as"seller- _
B Y
VichardS.SokolovVice President
G
By
tMUs .. WOLFCAU, �ecre a y
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, as purchaser
By
Chairman
Attest:
Secretary
(SEAL)
21
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.
DESERT FASHION PLAZA, INC. , as seller
By
Vice President
By
Secretary
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, as purchaser
By
Ch
Attest: a' n
Ccc«�_? Secretary
(SEAL)
21
EXHIBIT A
i
SCHEDULE OF INSTALLMENT PAYMENTS
Installment Principal Interest Total
Payment Date Component Component Installment Payment
Closing Date* $ -0- $3,481,500 $3,481,500
March 1, 1985 -0- 1 ,160,500 1,160,500
September 1 , 1985 -0- 1, 160,500 1,160,500
March 1, 1986 -0- 1,160,500 1 ,160,500
September 1, 1986 -0- 1 ,160,500 1,160,500
March 1, 1987 -0- 1,160,500 1,160,500
September 1, 1987 -0- 1 ,160,500 1 , 160,500
March 1, 1988 -0- 1 ,160,500 1,160,500
September 1, 1988 -0- 1,160,500 1,160,500
March 1 , 1989 -0- 1,160,500 1 ,160,500
September 1, 1989 -0- 1 ,160,500 1,160,500
March 1, 1990 -0- 1,160,500 1,160,500
September 1, 1990 -0- 1 ,160;500 1 , 160,500
March 1, 1991 -0- 1,160:500 1,160,500
September 1, 1991 -0- 1, 160,500 1,160,500
March 1, 1992 -0- 1,160,500 1 , 160,500
September 1, 1992 -0- 1 ,160,500 1,160,500
March 1, 1993 -0- 1, 160,500 1 ,160,500
September 1, 1993 -0- 1,160,500 1, 160,500
March 1, 1994 -0- 1 ,160,500 1,160,500
September 1, 1994 -0- 1, 160,500 1,160,500
March 1, 1995 -0- 1 ,160,500 1, 160,500
September 1, 1995 -0- 1 ,160,500 1,160,500
March 1, 1996 -0- 1 ,160,500 1 ,160,500
September 1, 1996 -0- 1 ,160,500 1 , 160,500
March 1, 1997 -0- 1 , 160,500 1,160,500
September 1, 1997 4,000,000 1,160,500 5, 160,500
March 1, 1998 -0- 962,500 962,500
September 1, 1998 7,000,000 962,500 7,962,500
March 1, 1999 -0- 615,500 612,500
September 1, 1999 12,250,000 612,500 12,862,500
To be provided from a portion of proceeds of the Certificates pursuant to Section
3. 1 hereof.
22
EXHIBIT B
PROJECT DESCRIPTION
The "Project" contemplated herein consists of certain public parking
facilities, a sculpture garden court and certain other amenities, to be constructed
on the Site. The Project, along with other improvements to be constructed by the
Developers, is further described in certain Planned Development District Drawings
and related documents, as the same may be amended from time to time, filed with the
City of Palm Springs, California in Planned Development District Case No. 5.0275-
PD-147.
The Project, as defined above, is being undertaken in connection with the
expansion and renovation of Desert Fashion Plaza, an enclosed, high-fashion
shopping center in Palm Springs, California (the "Development") . The Development,
excluding the Project, shall be financed through conventional construction loans
and therefore the cost of various items will be apportioned between the Project and
the balance of the Development, as hereinafter set forth.
Costs for the following items of work shall be included, in their entirety,
within the Project:
a. tree relocation;
b. demolition of existing buildings and removal of existing utilities;
C. sheeting and shoring;
d. mass excavation;
e. soil stabilization;
f. relocation of existing utilities;
g. utility lines servicing the parking structure;
h. lighting servicing the parking structure;
i . electrical and exhaust systems servicing the parking structure;
j . sprinklers;
k. painting;
1 . parking equipment;
M. parking offices;
n. graphics;
o. landscaping and amenities required for sculpture garden court;
p. development fees, reasonably determined, to be paid to Developers.
Costs for the following items of work will be pro-rated by the Developers'
general contractor, between the Project and the rest of the Development:
a. footings and foundations;
b. columns which also support the hotel or retail areas;
C. permanent and temporary utility lines along Andreas Road;
d. the roof of the parking structure, to the extent it serves as a
structural platform for the hotel and the mall ;
23
e. stairs;
f. vertical transportation;
g. the general contractor' s general conditions, overhead and profit;
h. construction manager' s overhead;
i . architectural and engineering fees.
Costs for such items will be included within the Project only to the extent
such costs are determined by the general contractor to be allocated to the Project.
Costs of the following items of work shall be excluded from the Project:
a. any areas constructed within the parking structure that constitute
service areas for the hotel — eg. , laundry and employees areas;
b. loading docks servicing the hotel and the mall .
•
24
Cx h 'f
PART I
A FEE SIMPLE INTEREST IN AND TO THE FOLLOWING PARCELS OF LAND SITUATED
IN THE CITY OF PALM SPRINCS, .COUNTY OF RIVERSIDE, STATE OF CALTFOFNIA. .
PARCEL NO. 1 :
L_OT"S 1 , 2 AND 3 1N E:LOCK 22 DF PALM SPRINGS AS SIIOWN
MAP ON FILE IN BOOK 9, PAGE 432 OF MAPS, SAN DIEGO COUNTY
RECORDS.
PARCEL NO. 2:
LOT 4 IN BLOCK 22 OF PALM SPRINGS , AS PER MAP RECORUCD
114 BOOK 90 PAGE 432 OF MAF'3, IN THE OFFICE Of THE COUNTY
RECORDER OF SAN DIEGO COUNTY .
PARCEL NO. 3:
LOT S IN BLOCK 22 OF PALM SF'RINGS, AS SHOWN E:Y MAP (IN FILE
1N UOOK 99 PAGE 432 OF MAPS, SAN DIEGO COUNTY RECORDS .
PARCEL NO. 4 :
LOTS 6 THROUGH 14 , INCLUSIVE_, THE Nor, 111 33 TEET OF LOT
20, LOTS 29 THROUGH 36 INCLUSIVE, IN F_'LOCK 22 OF PALM SF'RINGS,
AS SHOWN BY MAf ON FILE IN BOOK 9, PAGE 432 OF MAPS, SAN
DIEGO COUNTY RECORDS.
F'ARCEL NO. 5 :
LOTS 15, 16 , 17 , 10, AND THE NORTHERLY RECTANGULAR 3 FEET
OF LOT 19, 1N OLOCK 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 BLOCK 22 OF PALM SPRINGS, AS
SHOWN BY MAP ON FILE IN,f:OOK 9 , F'AGE 132 OF MAPS, SAN DIEGO
COUNTY RECORDS; EXCEPTING FROM SAID LOTS 25 , 26 AND 27
THE SOUTHERLY 147 FEET; ALSO EXCEPTING FROM SAID LOT 28,
THE NORTHERLY 33 FEET.
PARCEL NO. 7A:
THAT PORTION OF BLOCK 22 OF PALM SPRINGS , AS SHOWN UY MAP
ON FILE IN BOOK 91 PAGE 432 OF MAF'S , SAN DIEGO COUNTY RECORDS,
DESCRIBED AS FOLLOWS:
DEGINNING AT A POINT ON THE WEST LINT' OF MAIN STREET, AS
SHOWN ON SAID MAP, 75-4 FEET NUR1 H [IF THE NUFt T I I LINE (II
SPRING STREET ; THENCE WEST , T'Ai�M_L_EL WITH 1111- NORTH LINO
OF SPRING S1 F2CE f, 125 F EE1 ; 1 HENCE NIIN I H. F ARALLEL 141111
THE WEST LINE OF MAIN STREET , 47 F'EE1 ; THENCE EAST . PARAL_LF'L
WITH THE. NORTH LINE OF SPRING STREET , 125 FEET 10 THE. WEST
LINE OF MAIN SIREET ; THENCE SOUTH , ALONG THE: WC51 LINE
OF MAIN STREET, 47 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 7B:
THAT PORTION OF PALM AVENUE AND OF BLOCK 22 OF PALM SPRINGS,
AS SHOWN DY MAP' ON FILE IN POOK 9, PAGE 432 OF' MAPS, SP?1
DIEGO COUNTY RECORDS , DESCRIBED AS FOLLOWS: '
COMMENCING AT A POINT ON THE WEST LAN[ OF MAIN STRFET,
AS SHOWN ON SAID MAP, 754 FEET NORTH OF THE NORTH LINE
OF SPRING STREET; THENCE WEST , PARALLEL W11H 111E NORTH
LINE OF SPRING STREET, 125 FEET TO THE TRUE POINT OF DEGINNINO;
THENCE NORTH, PARALLFL WITH 1HE WEST LINF. OF MAIN STREET ,
47 FEET; THENCE WEST , PARALLEL WITH TIIE NORTH LINE OF SPRING
STREET , 165 FEET; THENCE SUUJH, PARALLEL WITH THE WEST
LINE OF MAIN STREET , 47 FEET ; THENCE EAST, PARALLEL WllH
THE NORTH LINE OF SPRING STREET , 165 FEET TO THE.. TRUE POINT
OF BEGINNING .
EXCEPTING THEREFROM THAT PORTION THEREOF AS DESCRIBED IN
PARCEL. NO. 11 HEREIN.
• PARCEL NO. 0 :
THAT PORTION OF LOTS 21 , 22, 23 AND 24 10 CLOCK 22 Or PALM
SPRINGS, AS SHOWN DY MAP ON FIL..E 1N BOOK 9, PAUr 432 OF
MAPS, SAN DIEGO COUNTY RECORDS, DESCRIBED AS FOLLOWS :
UEGINNING AT A POINT ON THE WEST LINE OF' MAIN STREET , AS
SHOWN ON SAID MAP, 675 FEET NORTH OF THE NORTHERLY LINE
OF SPRING STREET ; THENCE WEST , PARALLEL WITH THE NORTH
LINE OF SPRING STREET, 55 FEET ; THENCE NORTH, PARALLEL
WITH THE WEST LINE OF MAIN STREET, 33 FEET ; 1HENCE WEST ,
PARALLEL WITH THE NORTH LINE OF SPRING STREET , 0 FEE. T ;
THENCE NORTH, PARALLEL WITH THE WEST LINE Or MAIN STREE.I' ,
46 FEET; THENCE EAST , PARALLEL W11H TIIE NORTH LINE OF SPRING;
STREET, 63 FEET; THENCE SOUTH, ALONG THE WEST LINE OF MAIL!
STREET, 79 FEET, TO THE-POINT OF BEGINNING .
PARCEL NO. 9:
THOSE PORTIONS OF LAWN STREET, AS VACATED BY RESOLUTION
OF THE BOARD OF SUPERVISORS OF RIVERS1017 COUNTY ON OC1ODER
11 , 1916, A CERTIFIED COPY OF SAID RESOLUTION BEING FILED
FOR RECORD OCIOBER 17, 1916 IN BOOK 451 , PAGE 177 OF DEEDS,
AND THAT PORTION OF LOT 1 IN BLOCK 21. AND 1HOSE PORTIONS
OF LOTS 21 , 22, 23 , 24 AND 25, IN CLOCK 22 Or PALM SPRINGS,
ALL AS SHOWN BY MAP ON FILE 1N BOOK 9, PAGE 432 OF MAPS ,
SAN DIEGO COUNTY RECOROS, DESCRIBED AS FOLLOWS,
BEGINNING AT A POINT IN THE WEST LLNF OF MAIN STREET ( NOW
PALM CANYON DRIVE) 579 FEET NORTH FROM IIIE NORTH LINE OF
SPRING STREET (NOW IAHOUITZ DRIVE) ; THENCE WEST, PARALLEl
WITH THE NORTH LINE OF SPRING SIRFE. T , 150. 5 FE'E1 ; 1HLNCE.
NORTH PARALLEL. WITH THE WEST LINE OF MAIN STREET , 15S FEET ;
THENCE EAST PARALLEL WITH 1 HE NORTH LINE OF sr-[ mu S T RE_r T
150 .5 FEET TO THE WEST LINE OF MAIN STREET ; THENCE SOUTH
Old THE WEST LINE OF MAIN STREET 155 FEET 10 1HE POINT Of
BEGINNING .
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PORTION :
BEGINNING AT A POINT ON THE. WEST LINE.': Of MAIN SIREE:. T', 675
FEET NORTH OF THE NORTH LINE OF SPRING SIREET ; THENCE. WEST
PARALLEL WITH THE NORTH LINE OF SPRING GTREF' T 55 FEET ;
1HF_NCE NORTH PARALLEL WITH THE WEST LINE OF MAIN STRrE'T ,
33 FEET ; THENCE WEST PARALLEL_ WITH THE NORTH LINE OF SPRINT;
STREET , G FEET; THENCE NORTH PARALLEL. WIIH THE WEST L.IN
OF MAIN STREET , 46 FEET ; THENCE EAST T`ORAL.L_EL WITH THE:
NORTH LINE OF SPRING STREET , 63 FEET 10 THE WEST LINE OF
MAIN STREET; THENCE SUU1H ON THE WEST LINE OF MAIN SIREET ,
79 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 10:
THAT PORTION OF LAWN STREET, PALM AVENUE , AND OF BLOCK
22 OF' PALM SPRINGS , AS SHOWN BY MAP ON FILE IN PO ON 9,
PAGE 432 OF MAPS , SAN DIEGO COUNTY RECORDS, DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT ON THE WESTERLY LINE OF MAIN STREET ,
AS SHOWN ON SAID MAP, 604 FEET NORTHERLY OF THE: NOR I HE RLY
LINE OF SPRING STREET; THENCE WESTERLY , PARALLEL W11H THE
NORTHERLY LINE OF SPRING STREET , 150.5 F'EF.T 10 THE 1 RUF..
POINT OF BEGINNING; THENCE WESIERLY , PARALLEL WITH IHU1
NORTHERLY LINE OF SPRING STREET, 140 FEET; 1HE:.NCE NORTHERLY,
PARALLEL WITH THE WESTERLY LINE OF MAIN SIREET' , 150 FE.E1 ;
'THENCE EASTERLY , PARALLEL. W 1 T H 'T THE NOR1 HERLY LINE OP SPRING
STREET , 140 FEET ; THENCE SOUTHERLY , PARALLEL WITH THE WESTERLY
LINE OF MAIN STREET, 150 FEET, TO 1HE 1RUE POINT OF PCGIUNING.
EXCEPTING THEREFROM THAT PORTION THEREOF AS DESCRIBED IN
PARCEL NO. 11 HEREIN—
PARCEL NO. li :
THAT PORTION OF THE EAST HALF OF RELARDO ROAD AND THE NCIRTH
FIALF OF ANDREAS ROAD LYING EASTERLY Or 1HE CE: NI ERL I NC OF
VELARDO ROAD AS SAID STREETS WERE GRANTED TO THE CITY or,
PALM SPRINGS AS EASEMENIS FOR STREET PURPOSES IN 'THOSE.:
CERTAIN DOCUMENTS RECORDED JANUARY 3 , 1967 , AS DOCUMENT
NO. 157, RECORDED NOVEMBER 20 , 1960 , AS DOCUMENT NO. 111S94 ,
RECORDED NOVEMP•ER 22, 1960, AS DOCUMENT MO. 112099 nP[)
RECORDED FEBRUARY 16, 1977, AS DOCUMENT NO. 23276, AND
AS VACATED IN THAT CERTAIN DOCUMENT ENTITLED 'RFSOLUtION
NO. 14704 OF THE CITY COUNCIL OF THE: CITY OP' PALM SPIi:1NGS,
CALIFORNIA& RECORDED APRIL 13 , 1904 AS INSTRUMENT NU .
76179 , ALL OF OFFICIAL RECORDS OF RIVFRSIOE COUNTY , CALIFORNIA,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OV PARCEL 13 AS SHOWN
ON PARCEL MAP FtLCORDED IN COOK 1 , V60C 17 Or PARCEL MANS,
RECORDS OF RIVERSIDE COUNTY , CALIFORNIA, THENCE SOUTH 0''
00 ' 00 ' EAST , ALONG THE EASTERLY TIME OF SAID P=LU 13 ,
A DISTANCE OF 7. 07 FEET TO THE TRUE_ POINT OF BEGINNING ;
THENCE CONTINUING SOUTH 00 00 ' 00' FAST , ALONG SAID EASTERLY
LINE , A DISTANCE OF 199 . 13 FEET ; THENCE SOUTH 89^ 50'
WEST ( RECORD SOUTH 09. 50, WEST ) , A DISTANCE OF 402. 60
FEET ; THENCE SOUTH 0' 00' 00" EAST , A U151ANCE OF 67 . 99
FEET TO A POINT ON THE ARC OF A CURVE CONCAVF KOUTHCASTERnY ,
HAVING A RADIUS OF 20. 00 FEET , A RADIAL LINE PASSING 1HROU(311
SO ID POINT PEARS SOUTH 890 02' 00' WF51 ; THENCE NORTHERLY ,
NORTHEASTERLY AND EASTERLY ALONG THE ARC OF SAID CURVE.`,
"THROUGH A CENTRAL ANGLE OF 89° 50 ' 20' , A DISTANCE OF' 31 - 41.
FEET; THENCE TANGENT TO SAID CURVE_ NORTH 09* 50' 2ii' FAST-
(RECORD NORTH 09" 50' EAST ) A DISTANCE OF 302 . 61 FLET ;
THENCE SOUTH 0' 00 ' 00' EAST , A DISTANCE OF 5 .00 FEET ;
THENCE NORTH 07- 50' 275' EAST (RECORD NORTH 07- 50' FAST ) ,
A DISTANCE OF Z83.47 FEET TO THE BEGINNING OF A TANGENT
CURVE CONCAVE SOUTHWE.5IERLY, HAVING A RADIUS OF 20. 00 FEET;
THENCE EASTERLY , SOUTHEASTERLY AND SOUTUCRLY ALONG THI!
ARC OF SAID CURVE THROUGH A CENTRAL ANGLE: OF SO" 01 ' 31' ,
A DISTANCE OF 31 .43 FEET 10 A POINT ON THE ARC OF SAID
CURVE, A RADIAL LINE PASSING lHRUUGH SAID POINT BEARS NORTH
09* 52 ' 00 " EAST ; THENCE NORTH 0" 00 ' 00' WEST, A DISIANCE
OF 20 .01 FEET ; THTNCE. NORTH 190 11 ' 55" EAST , A DISTANCE
OF 60 . 42 FEET ; THENCE SOUTH 09" 50 ' 25' WEST ( RECORD SOUTH
09° 50' WEST) , A DISTANCE OF 150 .50 FEET ; THENCE: NORTH
0' 08 ' 00' WEST , A DISTANCE OF 5.00 FEET ; THENCE SOUTH
09- 50' 25' WEST (RECORD SOUTH 09' 50 ' WEST ) , A DISTANCE
OF 71 .96 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
NORTHEASTERLY HAVING A RADIUS OF 35 .00 FEET ; THENCE WFSIERLY ,
NORTHWESTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE,
THROUGH A CENTRAL ANGLE OF 700 01 ' 35' , A DISTANCE OF 54 . 99
FEET; THENCE NORTH 0' 00 ' 00' WEST , A DISTANCE OF 221 . 11
FEET ; THENCE SOUTH 410 51 ' 12' WEST , A DISTANCE OF 93 .36
FEET TO THE TRUE POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF F:C:LARDO ROAD AS DESCRICE:D
IN THAT CERTAIN PUITCLAIM DEED FROM THE CITY OF PALM SrRINUC ,
A MUNICiF'AL CORPORATION, RECORDED APRIL 13, 1904 AS INSTRUMENT
00. 76100 .
. PARCEL 12:
THAT PORTION OF BLOCK 9, BLOCK 14 , BLOCK 21 , AND A F'OF(TION
OF PALM AVENUE (NOW ABANDONED ) AND ORANGE AVENUE (NOW ABANDONED) ,
AS PER MAP RECORDED IN BOOK 9, PAGE 432 OF MAPS, IN 'THF:
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 COOK 2 PAGE 87 OF PARCEL MAPS, PARCEL HAF RECORDED
IN BOOK 7 PAGE 04 OF PARCEL MAPS, ALL RECORDS OF RIVERSIDE
COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF RAID BLOCK 21 ;
THENCE SOUTH 0?0 50 ' WEST ALONG THE SOUTH LINE OF SAID
BLOCK 21 , A DISTANCE OF 20.00 FEET ;
1HENCE NORTH 00. 08' WEST AND PARALLEL TO THE EAST LINE
OF SAID BLOCK 21 , A DISTANCE OF 20.79 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE CONTINUING NORTH 00^ 00 ' WEST , A DISTANCE OF 493.00
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SDUIHWES'T'ERL.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 99% 50' WEST , A DISTANCE OF 203.53
FEET;
THENCE NORTH 00. 08' WEST , A DISTANCE OF 5.00 FEET ;
THENCE SOUTH 090 50' WEST, A DISTANCE OF 302. 51 FEET 10
IHE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY
AND HAVING A RADIUS OF 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 4?6.00
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY
AND HAVING A RADIUS OF 20.00 FEET ;
THENCE SOUTHEA 1ERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 90. 02' 00' AND A LENGTH OF 31 . 43 FEET ;
THENCE TANGENT NORTH 89° 50' EAST , A DISTANCE OF 660. 04
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY
411 AND HAVING A RADIUS OF 10.00 FEET;
THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 89^
50 00' AND A LENGTH OF 20.26 FEET TO THE TRUE POINT OF
BEGINNING.
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 MAPS, 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.
2704F JHHW:CFA:dfd 8/01/84
FIRST ASSIGNMENT AGREEMENT
THIS FIRST ASSIGNMENT AGREEMENT, made and entered into as of the 1st day of
September, 1984, by and between DESERT FASHION PLAZA, INC. , (the "Seller") and
SECURITY PACIFIC NATIONAL BANK, as trustee (the "Trustee") ;
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 Community Redevelopment Agency of the City of Palm Springs
(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, which terms include payment by the Agency of certain installment
payments under Section 4.3(a) thereof (the "Installment Payments") .
(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 Agreements dated as of
September 1, 1984 (collectively, the "Second Installment Sale Agreements") ,
whereby the Agency has agreed to sell the Project to the Developer.
(c) In accordance with the First Installment Sale Agreement the Agency
has executed and delivered to the Seller an assignment of certain of its interests
under the Second Installment Sale Agreement, pursuant to that certain Second
Assignment Agreement dated as of September 1, 1984, (the "Second Assignment
Agreement").
(d) Under the First Installment Sale Agreement, the Seller is required
to cause to be deposited with the Trustee, certain sums of money to be credited,
held and applied in accordance with the First Installment Sale Agreement and with a
Trust Agreement dated as of September 1, 1984 (the "Trust Agreement") , among the
Agency, the Seller and the Trustee.
(e) Upon delivery of the First Installment Sale Agreement, the Seller
is required to cause to be deposited with the Trustee moneys for the construction
and acquisition of the Site and the Project. For the purpose of obtaining such
moneys, the Seller is willing to assign to the Trustee the Installment Payments,
undivided interests therein to be evidenced by certificates of participation (the
"Certificates"). To that end, the Seller is willing to assign and transfer its
M
I
rights under the First Installment Sale Agreement and the Second Assignment
Agreement to the Trustee for the benefit of the Owners from time to time of the
Certificates (the "Owner") . Concurrently with the delivery of this Agreement, the
Trustee has agreed to execute and deliver the Certificates in an aggregate face
amount of Twenty-three Million , Two Hundred-fifty Thousand Dollars ($23,250,000)
to Birr, Wilson & Co. , Inc. as original Owner. The proceeds of such sale are
anticipated to be sufficient to make the deposits required under the First
Installment Sale Agreement and to permit the Seller to pay therewith the cost of
acquisition and construction of the Site and the Project.
Section 2. Assignment.
The Seller hereby transfers, assigns and sets over to the Trustee for the
benefit of the Owners from time to time of the Certificates executed and delivered
under the Trust Agreement, all of the Seller' s right, title and interest as
assignee pursuant to the Second Assignment Agreement, and all of the Seller' s
rights under the First Installment Sale Agreement; including without limitation (1)
the right to receive and collect all of the Installment Payments (including
prepayments thereof) , (2) the 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, (3) the 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 and
prepayments thereof, or (ii) otherwise to protect the interests of the Seller
thereunder in the event of a default by the Agency under the First Installment Sale
Agreement, (4) all right, title and interest of the Seller, as assignee of the
Agency, in, to and under the Second Installment Sale Agreements, and (5) all rights
and interest of the Seller as assignee of the Revenues (as such term is defined in
the First Installment Sale Agreement) .
Section 3. Acceptance.
The Trustee hereby accepts such assignment to enable the Trustee to make the
payments to be made to, and protect the rights of, the Owner from time to time of
the Certificates executed and delivered pursuant to the Trust Agreement, subject to
the terms of the Trust Agreement.
Section 4. Conditions.
This Agreement shall impose no duties upon the Trustee other than as
expressly provided in the Trust Agreement.
Section 5. Covenant Not to Assign.
The Trustee agrees not to assign or hypothecate in any manner whatsoever any
of the rights hereunder assigned to the Trustee.
2
IN WITNESS WHEREOF, the parties have executed this First Assignment
Agreement by their officers thereunto duly authorized as of the day and year first
above written.
SECURITY PACIFIC NATIONAL BANK,
as trustee
By r6.& e/ �
Tile:
Assistant Vi��, F,;
DESERT I/FAAS�IHION PLAZA, INC.
By
i Title: Richard S. Sokolov;
vice President
At e
�A tr D. o le, jr.
// Secretary
l�
3