HomeMy WebLinkAboutA3914 - ALLSTATE INSURANCE SETTLEMENT AD 155 BONDS MO 6107 Allstate Insurance Company
. Settlement Agr. AD 155 Bonds
AGREEMENT #3914
M06107, 2-18-98
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Settlement Agreement") is
entered into as of March 2, 1998 by and among THE CITY OF PALM
SPRINGS ( "City" ) and ALLSTATE INSURANCE COMPANY ( "Allstate")
(collectively the "Parties" ) .
RECITALS
A. In or around July, 1989 the City formed Assessment
District No. 155 ( "AD 15511) and issued assessment bonds (the
"Bonds" ) to fund certain infrastructure improvements within the
boundaries of AD 155 (the "Improvements" ) .
B. The City issued $7, 638 , 119 . 64 of the Bonds . Stone &
Youngberg LLC ( "Stone & Youngberg") acted as underwriter for the
issuance and sale of the Bonds . Currently, $5, 590, 000 of the Bonds
remain outstanding.
C. Principal and interest due on the Bonds is paid through
assessments imposed upon certain fee properties, contributions from
the City' s Airport Enterprise Fund and certain possessory interests
in Indian land within AD 155 which receive the benefits of AD 155
improvements .
D. AD 155 includes approximately 80 acres of land owned by
members of the Agua Caliente Indian Tribe ( "Indian Allottees" ) .
Pursuant to federal law, assessment liens may not be maintained
against such Indian owned lands . However, where an Indian Allottee
leases Indian land to third persons, the possessory interest in the
leasehold can serve as security for assessments based upon the
benefit conferred by the Improvements upon the Indian land.
Consequently, assessments for the benefit of improvements affecting
Indian owned lands in AD 155 were secured by possessory interests
in certain leaseholds (the "Indian Leases" ) . These Indian Leases
represented almost 500 of the total security for the Bonds .
E. Since the creation of AD 155, the Indian Leases have gone
into default thereby adversely affecting the ability to pay
Principal and interest on the Bonds and, consequently, the market
value of the Bonds . As a result, Allstate, as a principal
bondholder of the Bonds, has asserted certain claims relating to
the creation and administration of AD 155 and the issuance of the
Bonds . The City and Stone & Youngberg contend that primary
liability for such claims rests with bond counsel ( "Original Bond
Counsel " ) who advised the City about formation of AD 155 and
structuring the bond issue and who issued its opinion to Stone &
Youngberg to the effect that there was adequate disclosure to
Bondholders in the Official Statement pertaining to the offering of
the Bonds .
F. In pursuit of the aforementioned claims, Allstate
threatened to file litigation against the City and Stone &
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Youngberg. In fact, absent a tolling or settlement agreement or
agreements, Allstate would have filed such litigation. However,
the City, Stone & Youngberg and Allstate have developed a plan to
resolve the claims and disputes between the City and Allstate and
between Stone & Youngberg and Allstate without any admission of
wrongdoing or liability. The City and Allstate wish to resolve any
claims and disputes between themselves and without any admission of
wrongdoing or liability. Pursuant to that wish, the Parties
entered into a Tolling Agreement as of June 4, 1997 (the "Tolling
Agreement" ) . The Parties have subsequently extended the Tolling
Agreement at various times . By signing this Settlement Agreement,
the Parties intend to extend the terms of the Tolling Agreement to
the extent permitted by law up until and including the Effective
Date as set forth in this Settlement Agreement .
G. Toward the end of resolving the disputes between Allstate
and the City and Allstate and Stone & Youngberg, the City is
attempting to restructure AD 155 related debt as follows : The
Bonds will be called by the City in their entirety pursuant to the
optional redemption provisions of the Bond Indenture. The Bonds
will be reclassified as "Class 1" and "Class 211 . The Class 1 Bonds
will have a senior lien on assessments from AD 155 and the Class 2
Bonds will have a junior lien. Outstanding Bonds will be redeemed
at a price equal to their principal amount plus accrued interest
and premium as provided in the Bond Indenture and statute.
Pursuant to a Bond Exchange Agreement, Allstate will purchase AD
155 ,Bonds (Class 2) in the principal amount of $1, 030, 000 . Bonds
(Class 1) in the principal amount of $3 , 425 , 000 will be held by the
City of Palm Springs Financing Authority (the "Authority" ) as local
obligations securing the issuance of the Authority' s 1998 Limited
Obligation Revenue Bonds, Series A ( "Assessment District No. 155
Bond Refunding" ) in the aggregate principal amount of $3 , 725 , 000
(the "Series A Authority Bonds" ) . The Series A Authority Bonds
will be sold to Stone & Youngberg pursuant to a Bond Purchase
Agreement and offered to the public for sale by Stone & Youngberg
pursuant to various disclosure documents prepared by the City and
Rod Gunn Associates, Inc. (the "Financing Consultant" ) . The
Authority will also issue its 1998 Limited Obligation Revenue
Bonds, Series B (Assessment District No. 155 Bond Refinancing) (the
"Series B Authority Bonds" ) which will be acquired in their
entirety by Allstate pursuant to a Purchase Agreement . Stone &
Youngberg will enter into an Agreement with Allstate ( "S&Y Allstate
Agreement" ) regarding the Class 2 Bonds held by Allstate. The
Authority on behalf of the City will also hold AD 155 Class 2 Bonds
in an aggregate principal amount of $1, 030, 000 as local obligations
securing in part the Series B Authority Bonds held by Allstate .
The City will fund a reserve fund for the Series A Authority Bonds
and advance the full costs of issuing the Series B Authority Bonds .
Allstate will provide the City and the Redevelopment Agency for the
City of Palm Springs (the "Agency" ) with a liability release and
certain other nonmonetary benefits . Allstate also will provide
Stone & Youngberg with a liability release to be effective if and
when certain conditions out.-Lined in the S&Y Allstate Agreement
occur. The aggregate of the transactions and agreements described
348/014084-0085/3137799.3 02127/98 -2-
above constitute an integrated transaction which must be completed
in its entirety to be completed at all and shall be hereinafter
referred to collectively as the "Refunding" .
NOW, THEREFORE, IT HEREBY IS AGREED BY AND AMONG THE PARTIES
AS FOLLOWS :
1 . The Refunding. This Settlement Agreement, including
but not limited to the release and covenant not to sue contained
herein, is contingent upon the successful completion, funding, and
closing of the Refunding. Though the City will make reasonable
efforts to accomplish the Refunding to satisfy this contingency and
make this Settlement Agreement effective, the City shall not be
contractually obligated to proceed with or close the Refunding. If
the Refunding does not occur by March 2 , 1998, then the Settlement
Agreement shall be null and void and of no force and effect.
2 . Effective Date. This Settlement Agreement shall be
effective and binding as of the date the Refunding is funded and
closed (the "Effective Date" ) .
3 . Mutual Release .
a. In consideration of this Settlement Agreement
and the terms and conditions thereof, as of the Effective Date, the
Parties, on behalf of themselves and their successors and assigns
(collectively "Releasors" ) , hereby fully and forever release and
discharge each other and the Agency, and each of their elected or
appointed representatives, agents, employees and attorneys, past
and present, from any and all Released Claims, as defined in
subparagraph (b) below.
b. Subject to subparagraph (d) below, "Released
Claims " shall be defined as follows : any and all claims, demands,
liens, agreements , contracts, covenants, debts, costs, expenses,
damages, judgments, orders and liabilities of whatever kind or
nature, in law, equity or otherwise, including but not limited to
claims for attorneys' fees or costs (any and all of the foregoing
referred to herein as "Claims" ) , whether now known or unknown,
vested or contingent, suspected or unsuspected, and whether or not
concealed or hidden, that have existed or may have existed, or that
do exist as of the Effective Date, or that could or do later accrue
as a result (in whole or in part) of transactions, occurrences,
acts or omissions that have occurred as of the Effective Date .
Subject to subparagraph (d) below, Released Claims shall include
any and all Claims arising out of or in any way connected with (i)
all transactions, occurrences, acts, omissions or Claims arising
out of or related in any way to the Bonds; (ii) claims for
attorneys' fees or costs in connection with any Released Claim,
including but not limited to Claims for such fees or costs that
were, might have been, or could have been awarded or sought in
connection with any other action or proceeding that had occurred or
might in the future occur arising out of or related to any Released
348/014084-0085/3137799.3 .02/27/98 -3-
Claim; and (iii) Claims arising out of or in any way connected with
the prosecution or settlement of any Released Claim.
C. It is the intention of Releasors in executing
this release that the same shall be effective as a bar to each and
every Released Claim hereinabove specified, known or unknown; and
Releasors hereby knowingly and voluntarily waive any and all rights
and benefits otherwise conferred by the provisions of Section 1542
of the California Civil Code, which reads as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have
materially affected his settlement with the
debtor. "
Releasors expressly consent that, notwithstanding Section 1542 of
the California Civil Code, or any other statute or rule of law of
similar import whether enacted or in force in California or in any
other State of the Union or in any other nation of the world, this
general release shall be given full force and effect according to
each and all of its express terms and provisions, including those
relating to unknown or unsuspected Claims that exist as of the
Effective Date as well as those relating to any other Claims
hereinabove specified (including but not limited to any Claims that
may or will accrue in the future based on transactions ,
occurrences, acts or omissions that have occurred as of the
Effective Date) . Releasors acknowledge and agree that this waiver
is an essential and material term of this release and the
settlement reflected herein, and without such waiver, the
settlement would not have been entered into. Releasors have been
advised by their legal counsel with respect to this waiver, and
understand and acknowledge the significance and consequence of this
general release and of this express waiver of Section 1542 and
other similar statutes or rules of law wheresoever enacted or in
force .
d. The release and covenant not to sue granted in
this Settlement Agreement does not extend to, and nothing in this
Settlement Agreement (including without limitation paragraphs 2 and
3 hereof) will be construed to limit, either party' s rights to
enforce this Agreement according to its terms . Furthermore, the
release shall not apply to Claims specifically assigned to City
pursuant to paragraph 6 or to any claim which arises on or after
the Closing of the Refunding on the part of Allstate in relation to
the Series B Authority Bonds or the AD 155 Bonds (Class 2) .
e. Except as set forth in paragraph 6, Releasor
represents and warrants that no Claim or right that would have been
released or dismissed under this Settlement Agreement if held by
Releasor on the Effective Date has been transferred, hypothecated,
assigned or given away by Releasor prior to the Effective Date of
this Settlement Agreement to any person or entity that would not be
348/014084-0085/3137799.3 a02/27/98 -4_
bound hereby. Releasor shall indemnify, defend and hold harmless
every other person or entity then entitled to a release hereunder
from and against any and all Claims (including without limitation
attorneys' fees) resulting from its own actual or alleged breach of
this representation and warranty.
4 . Covenant Not to Sue. As of the Effective Date, and
subject to the exception provided in paragraph 3 (d) above,
Releasors covenant and agree not to assert in any procedural form
or forum, whether initially or by way of defense, offset, or cross-
, counter- or third-party claim, any Released Claim against any
person or entity then entitled to a release hereunder. As of the
Effective Date, and subject to the exception provided in paragraph
3 (d) above, Releasors further covenant and agree not to assert
against any person or entity not then entitled to the benefit of a
release hereunder, in any procedural form or forum, whether
initially or by way of defense, offset, or cross- , counter- or
third-party claim in any action, any Claim arising or accruing on
or before the Effective Date hereof (or arising or accruing later,
but based on any transaction, occurrence, act or omission that
occurred on or before the Effective Date hereof) that causes or
results in the assertion by any person or entity whatsoever of any
Claim against any person or entity entitled to the benefit of a
release hereunder. Releasor shall indemnify, defend and hold
harmless every person and entity then entitled to a release
hereunder from and against any and all Claims (including without
limitation attorneys' fees) resulting from its own breach of this
covenant not to sue.
5 . Nonsignatories . The signatories to this Settlement
Agreement are Allstate, the Agency and City. To the extent that
this Settlement Agreement provides for releases in favor of persons
or entities not signatories hereto ( "Nonsignatories" ) , this
Settlement Agreement is declared to have been made for their use
and benefit, and is further declared to be intended to bar the
assertion by Nonsignatories of Released Claims against persons or
entities entitled to the benefit of a release hereunder.
6 . Assignment . In consideration of this Settlement
Agreement and the terms and conditions thereof, as of the Effective
Date, Allstate, on behalf of itself and its successors and assigns,
hereby transfers and assigns to the City all right, title and
interest in any Claims against any party other than the City, the
Agency, and Stone & Youngberg its members, managers, employees and
representatives, and its predecessor, Stone & Youngberg, a
California Limited Partnership and its general and limited
partners, arising out of or related to the issuance or purchase of
the Bonds, whether now known or unknown, vested or contingent,
suspected or unsuspected, and whether or not concealed or hidden,
that have existed or may have existed, or that do exist as of the
Effective Date, or that could or do later accrue as a result (in
whole or in part) of transactions, occurrences, acts or omissions
that have occurred as of the Effective Date except as set forth in
this paragraph. Without limiting the generality of the foregoing
3481014084-0085/3137799 3 102/27/98 -5-
language, such Claims shall specifically include those against the
law firm of Brown & Diven including any of its constituent
partners, members or attorneys, and any other persons or entities
involved with the creation and/or administration of AD 155 or
disclosure and/or oversight relative to the Bonds, except Stone &
Youngberg its managers, members, employees and representatives, and
its predecessor and its general and limited partners . Nothing
herein , shall constitute an assignment of any claim(s) which
Allstate may have against any party for events unrelated to the
issuance or administration of the Bonds .
7. Other Facts . The Parties acknowledge and understand
that it is possible that they, or their agents or attorneys, may
discover other or further Claims or facts than the ones they
presently believe to exist concerning this Settlement Agreement or
the Claims compromised, released or assigned hereby_ The parties
each expressly accept and assume the risk of any such other or
further Claims or facts, and agree that this Settlement Agreement,
and the release and other provisions hereof, and any other
documentation to be delivered in connection herewith, shall remain
effective notwithstanding the discovery of any such other or
further Claims or facts .
8 . No Admissions . This Settlement Agreement is entered
into in compromise of disputed Claims . Neither the execution of
this Settlement Agreement and the releases, dismissals and other
documentation provided for herein, nor the payment of any
consideration hereunder, nor any other act or agreement in
furtherance of this settlement, shall be construed in any way as an
admission of wrongdoing on the part of any party hereto.
9 . Authority. Each individual executing this
Settlement Agreement on behalf of an entity represents and warrants
that he or she is duly authorized representative of that entity
with full power and authority, to bind it to each term and condition
hereof .
10 . Further Acts . Each of the parties hereto agrees
promptly to execute all other documents and take all other actions
reasonably necessary to effectuate all of this Settlement
Agreement' s terms and conditions .
11 . Interpretation or Enforcement• Attorneys' Fees . In
the event that any legal action is necessary to enforce or
interpret any provision of this Settlement Agreement (or any
documentation delivered pursuant thereto or in connection
therewith) , that action will be brought in a state or federal court
of competent jurisdiction located in Riverside County, and the
parties to this Settlement Agreement consent to personal
jurisdiction and venue in such a court . The prevailing party in
any such action shall recover_ its costs and reasonable attorneys'
fees .
3481014084-0085/3137799.3 .02/27198 -(-
12 . Successors . This Settlement Agreement shall bind
the successors, assigns, heirs and personal representatives of each
of the parties hereto.
13 . Parties Represented. Each party to this Settlement
Agreement has been advised and represented by counsel in connection
with the negotiation and preparation hereof, and each shall be
deemed its co-author for purposes of the Settlement Agreement' s
construction.
14 . Integrated Writing. This Settlement Agreement
(along with the other documentation specifically called for herein)
constitutes the whole and only existing and binding agreement
between the parties hereto on the subject matter hereof,
superseding all prior statements and understandings, whether
written or oral . Other than the representations set forth in this
Settlement Agreement, there are no warranties, promises or
representations of any kind, express or implied, upon which either
party has relied in entering into this Settlement Agreement, or as
to the future relations or dealings of the parties .
15 . Amendments . This Settlement Agreement may be
modified or amended only by a writing signed by both parties
hereto.
16 . No Waiver. The waiver by any party hereto of any
right, privilege, covenant or condition hereunder will not operate
as or indicate a continuing waiver of the same or any other right,
privilege, covenant or condition hereunder.
17 . Choice of law. This Settlement Agreement shall be
governed by the internal law of the State of California applicable
to contracts executed and to be wholly performed in that State.
18 . Tolling of Claims . The Parties have entered into
the Tolling Agreement as of June 4, 1997 . The Tolling Agreement
and all amendments thereto are hereby incorporated herein and made
part of this Settlement Agreement by reference. By signing this
Settlement Agreement, the Parties intend to extend the terms of the
Tolling Agreement to the extent permitted by law up until the
Effective Date as set forth in this Settlement Agreement.
348/014094-008313137799.3 .02/27/98 -7-
Dated: ALLSTATE INSURANCE COMPANY
By ✓� `� L__
Its: - /1TnRv wv
By
Lts'': �ie�w !rpa7 r! eTn =
PATRICIA W. WILSON
Dated: CITY OF PALM SPRINGS
r-r �
By
Its : Treasurer/Finance Director
ATTEST: CITY OF_PALM_ SPRINGS, CALIFORNIA
—City Clerk i y Manager
e°._?r,'830V D) a d'li Gji- ( J'9 1-
�peay'o � 041 -a-_e. _ �
3481014084-0085/3137799.3 .02/24/98 - a-
DISPUTE RESOLUTION AGREEMENT
This Dispute Resolution Agreement ("Agreement")is made as of February
1998 by and between Allstate Insurance Company ("Allstate") and Stone & Youngberg LLC
("S&Y"). For ease of reference, the Parities hereto are sometimes referred to herein individually
as a 'Party" or collectively as the 'Parties."
RECITALS
A. S&Y underwrote the sale of$7,638,119.64 City of Palm Springs Limited
Obligation Improvement Bonds Assessment District No. 155 (Riverside County, California)
issued by the City of Palm Springs, California in or about July, 1989 ("the AD 155 Bonds").
B. Allstate purchased) a portion of the AD 155 Bonds.
C. Certain Claims relating to the issuance or purchase of the AD 155 Bonds
may arise or have potentially arisen between the Parties as well as between Allstate and the City
of Palm Springs ("City"). Among other claims, Allstate maintains that it has been damaged due to
defects inherent in the issuance of the AD 155 Bonds and the lack of adequate disclosure in the
disclosure documents relating to the AD 155 Bonds concerning certain risks relating to the AD
155 Bonds. S&Y contends that primary liability for such claims rests with Bond Counsel who
advised the City of Palm Springs ("City") in forming Assessment District 155 ("Assessment
District 155") and structuring the AD 155 Bond issue and who rendered its opinion to S&Y
concerning the adequacy of the disclosure in the disclosure documents.
D. Each Party denies liability to any other Party or third person(s) arising from
or relating to the Assessment District 155 or issuance or purchase of the AD 155 Bonds and
nothing in this Agreement and no purchase or sale of AD 155 Bonds (including Class 1 or Class 2
Bonds as defined below) pursuant hereto shall be construed as an admission of any prior conduct
or an agreement of liability or that either Party has any claim or cause of action whatsoever
against the other.
E. The Parties previously entered into an agreement ("Tolling Agreement"),
whereby the Parties agreed to toll, from May 9, 1997, defenses based on the passage of time
which could be asserted by a Party against or with respect to any claims or cross claims of the
other Party relating to or arising out of the AD 155 Bonds. The Tolling Agreement does not
affect the validity of defenses based on the passage of time which have barred, would have barred
or could bar any claim prior to May 9, 1997. A true copy of the Tolling Agreement is attached
hereto as Exhibit A and incorporated herein by reference.
F. Toward the end of resolving the issues related to Assessment District 155
including resolving and settling the claims by Allstate, without any person or entity admitting
wrongdoing or liability, the City has developed a plan ("Plan")whereby the City together with
the City of Palm Springs Financing Authority('PFA")will redeem and reclassify the outstanding
1
20079 140RAFT FAmmy 26,1998-12.11 PM SF 4256382 v9
AD 155 Bonds. Pursuant to the Plan: (i) The PFA will issue and sell new Series A and B bonds
and use the proceeds to acquire all of the outstanding AD 155 Bonds; (ii) S&Y will underwrite
the sale of the Series A Bonds by purchasing them from the PFA and selling them to the public;
(iii) the City will reclassify the AD 155 Bonds into Class 1 and Class 2 ("Class 1 Bonds" and
"Class 2 Bonds"); (iv)Allstate will acquire the Series B Bonds; (v) Allstate will acquire pursuant
to an Exchange Agreement with the City approximately $1,030,000 par value of Class 2 Bonds so
that Allstate will own the Series B Bonds and $1,030,000 par value of the Class 2 Bonds; (vi) the
Class 1 Bonds shall be held by the Series A Bonds Trustee ; (vii) The Class 1 Bonds shall possess
a first lien and claim to unpaid assessments within the Assessment District and the Class 2 Bonds
shall be secured by a second and subordinate lien and claim to unpaid assessments within the
Assessment District, and all prepayments and redemption payments shall be applied only to the
Class I Bonds; (viii) The Series A Bonds will be secured by a lien on and security interest in the
revenues from the Class 1 Bonds, and those revenues together with payments by the City of
certain airport revenue and payments by the PFA of certain other revenue will be used to pay
principal and interest on the Series A Bands; (ix) any surplus revenues ("Assessment Surplus
Revenues")will be applied against principal and interest on the Class 2 Bonds; (x) the Series B
Bonds Trustee will hold a portion of the Class 2 Bonds; (xi) the Series B Bonds will be paid from
revenues on the Class 2 Bonds held by the Series B Bonds trustee and from lease payments
pursuant to a lease and sublease between the City and the PFA, which lease payments by the City
to the PFA will be assigned to the Series B Bond trustee for the benefit of the Series B
bondholders; (xii) and S&Y will enter into this Agreement with Allstate. All of the transactions in
the Plan are integrated and must be completed in their entirety to be completed at all.
Implementation of the entire Plan on terms satisfactory to S&Y and Allstate is a condition of this
Agreement becoming effective.
G. To avoid further expenses, delays, risks and other burdens, the Parties have
agreed to enter into this Agreement, with the intent of providing a mechanism to finally and
completely resolve the disputes between them, including but not limited to those referred to in
Recital C.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Effective Date
This Agreement is effective as of March 2, 1998.
2. Implementation of Plan
If the Plan described in Recital F is not implemented on or before March 2, 1998,
1998, this Agreement will not become efi:ective and will be null and void and of no force and
effect, unless the Parties extend such date by mutual written agreement. Implementation shall
mean closing of the sale of the Series A and B Bonds, acquisition of the outstanding AD 155
Bonds by the PFA, reclassification of the AD 155 Bonds into Class 1 Bonds and Class 2 Bonds,
Allstate's acquisition pursuant to an Exchange Agreement of$1,030,000 par value of Class 2
Bonds, S&Y and Allstate entering this Agreement, the City and Allstate entering into a release
20079.14/DRAFT F.b�uy 26,1998-12.11 PM 2 SF#256382 v9
agreement and such other steps by the City, the PFA, Allstate and S&Y as may be necessary to
complete the Plan.
3. Riehtto Purchase
Upon implementation of the Plan, S&Y shall have the right, but no obligation, to
purchase, and Allstate agrees to sell to S&Y if S&Y exercises its right, the $1,030,000 of Class 2
Bonds held by Allstate at the prices plus interest accruing on said Class 2 Bonds from March 3,
1998, in accordance with the schedule of payments of principal and interest attached hereto as
Schedule 1, less any payments of principal and/or interest paid against the Class 2 Bonds by the
PFA or the City to Allstate. Further, S&Y shall have the right to accelerate its purchase of
Allstate's Class 2 Bonds, such that S&Y may elect to purchase said Class 2 Bonds in greater
quantity and/or on an earlier date than specified in Schedule 1 at the prices and the prepayment
methodology set forth on Schedule 1 or at such prices and prepayment methodology as may be
agreed upon by the Parties, in which case the corresponding accrued interest shall be adjusted
accordingly, and Allstate agrees to sell its Class 2 Bonds to S&Y pursuant to such election by
S&Y.
4. Purchase of Bonds
4.1 If, and so long as, S&Y elects to and does purchase Allstate's Class 2
Bonds in accordance with the schedule set forth on Schedule 1, or elects to accelerate its
purchase of said Class 2 Bonds and purchases Allstate's Class 2 Bonds ahead of the dates set forth
in Schedule 1 at the prices set forth on Schedule 1 or at such prices agreed upon by the Parties:
a. Allstate agrees:
(i) not to exercise its right to terminate the Tolling Agreement
pursuant to Paragraph 2 of said Tolling Agreement or any other manner;
(ii) not to file ,suit against, or seek relief from, S&Y or any of its
managers, members, affiliates, administrators, agents, servants, employees, representatives,
directors, officers, assigns, parent entities, subsidiaries, stockholders, former general and limited
partners, attorneys, or predecessors (reference to S&Y shall include such persons as the context
requires) in any forum whatsoever for any alleged claim or cause of action or for sums alleged to
be owed which arise from or in any way relate to Assessment District 155, the issuance, offer, sale
or purchase of the AD 155 Bonds, the Plan, or the subject matter of this Agreement including but
not limited to any securities purchased m sold pursuant to the Plan.
(iii) upon S&Y's request, to renew the Tolling Agreement prior to
May 9, 2001, in the manner provided for in California Code of Civil Procedure Section 360.5;
(iv) to deliver against each payment any Class 2 Bonds sold hereby to
S&Y either electronically through the Depository Trust Company or physically at S&Y's office in
San Francisco, California.
20079:141DRAFT February 26,1998-12:11 PM 3 SF#256382 v9
b. S&Y agrees:
(i) not to exercise its right to terminate the Tolling Agreement
pursuant to Paragraph 2 of said Tolling Agreement or any other manner; and
(ii) to renew the Tolling Agreement prior to May 9, 2001 in the manner
provided for in California Code of Civil Procedure Section 360.5.
(iii) not to file suit against, or seek relief from, Allstate or any of its
affiliates, administrators, agents, servants, employees, representatives, directors, officers, assigns,
parent entities, subsidiaries, attorneys, predecessors (reference to Allstate shall include such
persons as the context requires) in any fcrum whatsoever for any alleged claim or cause of action
or for sums alleged to be owed which arise from or in any way relate to Assessment District 155,
the issuance, offer, sale or purchase of the AD 155 Bonds, the Plan, or the subject matter of this
Agreement including but not limited to any securities purchased or sold pursuant to the Plan.
Notwithstanding the foregoing, Allstate agrees that S&Y, either alone or together with the City or
any affiliated agency of the City, may pursue litigation against Bond Counsel for the initial
issuance of the AD 155 Bonds, the firm known as Brown, Diven& Hentsche, or Brown& Diver
and any of its members or representatives.
4.2. Whether or not S&Y elects to or does purchase Allstate's Class 2 Bonds,
Allstate agrees that the first $129,500 (subject to credits for amounts paid by S&Y to the City) of
principal and interest payments that would otherwise be allocable to the Class 2 Bonds owned by
Allstate (including any that may be purchased by S&Y) from Assessment Surplus Revenues may
be allocated to the Class 2 Bonds held by the Trustee for the Series B Bonds to reimburse the
City for advances made to the AD 155 Bond Reserve Fund and costs incurred in connection with
the offering of Series B Bonds.
5. Election Not to Purchase Bonds
If S&Y elects not to purchase Mstate's Class 2 Bonds in accordance with
Schedule 1, on dates earlier than set forth on Schedule 1 at the prices set forth on Schedule 1 or
on some other mutually acceptable basis, either Party may, at its discretion, exercise its right to
terminate the Tolling Agreement and either may, thereafter, file suit against, or otherwise seek
relief from the other for any alleged claim or cause of action or for sums it alleges to be owed
arising from or related to Assessment District 155, the issuance or purchase of the AD 155
Bonds, the Plan, or the subject matter of this Agreement subject to the following:
S&Y's total potential liability ("Potential Liability") to Allstate with respect to any
claim or claims, cause of action, liability, damages, claim for costs or expenses, including
attorney's fees, arising from or related to Assessment District 155, issuance, offer, sale or
purchase of the AD 155 Bonds, the Plan, including but not limited to the Series B Bonds and
Class 2 Bonds purchased by Allstate, or the subject matter of this Agreement including the
purchase or sale of any securities pursuant hereto (the AD 155 Claims) shall in no event exceed in
the aggregate and is hereby limited to the total par value of Allstate's Class 2 Bonds, which shall
20079:14/DRAFT Febmary 26,1998-12:11 PM 4 SF$256382 v9
be $1,030,000, plus interest accrued in accordance with Schedule 1. Each purchase of Allstate's
Class 2 Bonds by S&Y and each payment by the City or PFA to Allstate of principal or interest on
Allstate's Class 2 Bonds shall reduce S&Y's Potential Liability, including for applicable accrued
interest, in an amount equal to the par value of Allstate's Class 2 Bonds so purchased by S&Y and
the amount of principal paid and accrued interest paid thereon by the City or the PFA.
6. Purchase of All Bonds
If S&Y elects to and does purchase all $1,030,000 par value of Allstate's Class 2
Bonds, for the prices and accrued interest set forth on Schedule 1 (or the adjusted accrued
interest if the purchase is at an earlier date than set forth on Schedule 1) or some other mutually
agreed price, less any payments against principal or interest on Allstate's Class 2 Bonds by the
PFA or the City to Allstate, S&Y's Potential Liability shall be entirely extinguished. In this event,
the Mutual Release and Covenant Not to Sue, in the form attached hereto as Exhibit B, and
executed by the Parties in connection herewith, shall become effective and this Agreement will
terminate.
7. Termination
This Agreement will terminate on May 8, 2005 unless sooner terminated pursuant
to its terms.
8. Limited Representations and Warranties S&Y and Allstate represent and
warrant that neither has made nor will make any representation or warranty to each other in
connection with the transactions contemplated herein other than as may be set forth in this
Agreement, and neither is relying or will rely on anything said, represented or omitted by the other
in connection with such transactions. S&.Y and Allstate are entering into this Agreement, which
may result in a purchase or sale of Class '2 Bonds, as the case may be, to resolve any disputes
between them with respect to Assessment District 155, the AD 155 Bonds and the subject matter
of this Agreement based upon their respective self-controlled and self-directed due diligence
investigation into all material facts, as determined material by either of them, relating to the Class
2 Bonds. The foregoing representations and warranties in this paragraph will apply equally at the
time of any purchase and sale of Class 2 Bonds during the term of this Agreement and neither
Party will rely on any representation, warranty, statement, or omission of the other about the
Class 2 Bonds at the time of any such purchase or sale.
9. Attorney's Fees
If any legal action is necessary to enforce the terms of this Agreement, the
prevailing Party shall be entitled to reasonable attorney's fees and costs of suit in addition to any
other relief to which that Party may be entitled. This provision is explicitly limited to actions to
enforce this Agreement and shall have no force or effect with respect to any other dispute
between the Parties, relating to the Assessment District 155, the AD 155 Bonds, the Class 2
Bonds, the Plan or otherwise.
20079.14/DRAFT Feb.my 26,1998.1211 PM 5 SF#256382v9
10. Entire Agreement
The Parties declare and represent that no promise, inducement, or agreement not
expressed herein has been made to them. This Agreement including the exhibits hereto contains
the entire agreement between the Parties, and the terms contained in this Agreement are
contractual and not mere recitals.
11. Choice of Law
This Agreement in all respects shall be interpreted, enforced and governed under
the laws of the State of California, without regard to its provisions relating to conflicts of laws.
The language of all parts of this Agreement shall in all cases be construed as a whole, according
to its fair meaning, and not strictly for or against any of the Parties. This Agreement shall be
construed as if jointly prepared by Allstate and S&Y. Any uncertainty or ambiguity shall not be
interpreted against any one Party.
12. Modification
No modification or waiver of any of the provisions of this Agreement shall be valid
and enforceable unless such modification or waiver is in writing and signed by the Party to be
charged and/or its counsel and unless otherwise stated therein, no such modification or waiver
shall constitute a modification or waiver of any other provision of this Agreement or constitute a
continuing waiver.
13. Further Acts
The Parties agree to promptly execute all other documents and take all other
actions reasonably necessary to effectuate all of the terms and conditions of this Agreement.
14. Counterparts
This Agreement may be executed in counterparts and as executed shall constitute
one Agreement, binding on the Parties. This Agreement shall be of no force or effect until
executed by all the signatories.
15. Illegality or Invalidity
Should any provision of this Agreement be declared or be determined by a court of
competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term, or provision shall be
deemed not to be a part of this Agreement, to the extent permitted under applicable law.
20079.141DRAFT Febmary 26,1998-12 11 PM 6 SF 9256382 v9
16. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors, and assigns and any entity through which the Parties do business.
17. Recitals
The Parties agree that the RECITALS are incorporated in this Agreement.
18. Descriptive Headings
The headings used herein are descriptive only and shall not determine, define, limit
or otherwise affect the meaning or effect of any such provisions.
19. Confidentiality
The Parties shall treat this Agreement as Confidential and shall not disclose the
terms thereof, except as required by law or the rule of applicable regulatory authorities or self-
regulatory organizations.
THE UNDERSIGNED HAVE READ THE ABOVE AGREEMENT AND UNDERSTAND ITS
TERMS INCLUDING BUT NOT LIMITED TO EXBIT B HERETO AND EACH IS
RESPECTFULLY AUTHORIZED TO SIGN ON BEHALF OF THE PARTY INDICATED,
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE.
Stone & Youngberg LLC Allstate Insurance Company
By: Z zx'a� By:
ignature Signature
,r C'-IAR�_E-S D.
l Gd L �p�/GL�i d� rcn y L v
Name and Title Typed or Printed Name W� �
By: r" Z L �'
tom"'" S�
l'E'44 ,PeNre(f. `fllLSO[1
Typed or Printed Name
Its authorized Signatories
20079 14117RAFT Rebmuy 24,1998�6 07 PM 7 SF 9256382 v7
Schedule 1
OPTIONAL PURCHASE AND PAYMENT SCHEDULE
STONE &YOUNGBERG LLC
CITY OF PALM SPRINGS ASSESSMENT DISTRICT NO. 155
CLASS 2 ASSESSMENT BONDS OWNED BY ALLSTATE
Purchase Par To Be Class 2 Bonds To Be Effective Total
Date Purchased Purchased Yield Payment Principal Interest
Par Coupon Maturity
9/2198 105,000 $80,000 7.00% 9/2198 4.00% $81,600.00 = $78,800.00 $2,800.00
25,000 7.05% 912/99 4.00% 25,500.00 = 24,618.75 881.25
Total 105,000 107,100.00
9/2/99 180,000 35,000 7.05% 9/2/99 4.20% 37,251.63 = 33,550.38 3,701.25 •
65,000 7.10% 912/00 4.20% 69,181.60 = 62,259.10 6,922.50
70,000 7.15% 9/2/01 4.20% 74,503.26 = 66,995.76 7,507.50
10,000 7.20% 9/2/02 4.20% 10,643.32 = 9,563.32 1,080.00
Total 180,000 191,579.81
9/2100 170,000 60,000 7.20% 912/02 4.40% 66,896.86 = 56,096.86 10,800.00
80,000 7.25% 912/03 4.40% 89,195,81 = 74,695.81 14,500.00
30,000 7.30% 9/2/04 4.40% 33,448.43 = 27,973.43 5,475.00
Total 170,000 189,541.10
9/2/01 155,000 50,000 7.30% 9/2/04 4.50% 58,426.95 = 45,651.95 12,775.00
90,000 7.30% 9/2105 4.50% 105,168.51 = 82,173.51 22,995.00
15,000 7.35% 9/2t06 4.50% 17,828.09 = 13,669.34 3,858.75
Total 155,000 181,123.55
9/2/02 145,000 85,000 7.35% 9/2106 4.60% 104,303.68 = 76,189.93 28,113.75 •
60,000 7.35% 9/2107 4.60% 73,626.13 = 53,781.13 19,845.00
Total 145,000 177,929.81
9/2103 140,000 45,000 7.35% 9/2/07 4.70% 58,100.36 = 39,909.11 18,191.25
95,000 7.40% 9/2/08 4.70% 122,656.32 = 83,991.32 38,665.00
Total 140,000 180,756.68 '
9/2/04 135,000 15,000 7.40% 9/2/08 4.80% 20,416.94 = 13,201.94 7,215.00
120,000 7.40% 9/2108 4.80% 163,335.54 = 105.615.54 57,720.00
Total $135,000 183,752.48
Total $1,030,000 Total $1,211,783.00 $948,737.00 $263,046.00
Page 1 of 2 SF 4271028
Schedule 1
[)PUGNAL PURCHASL AND PAYhfEP]T SCBEDIIE.E �c
STONE&YOtWGBERG LLC n'
CITY OF PALM SPRINGS ASSESS.WMT DISTRICT NO.155 �c
CIASS 2 ASSESSMENT BONN OWNED BY ALLSTATE m n
o fR
a PrepaymmtMethodology:
nrr
�rr
5&Y may purchase the Claus 2 Bonds io whale or in part m advance of the sdteduled optional puuebam dates at arty tiaaewithout o
penalty. Purchases m put in advance of sche&dod purchase dates most be accomplished in$5,000 integral amounts according to their
sequential order of mamty. n
n
C.
Prepayment Prices and interest will he Galeulated m-follows:
Total payment vrill be calculatod as the furore value of the on8mal par uun8 the e$"eclive yretd on a semi-s"Bat corapotmded basis. °a
The;portion of the total paynteot allocated to accrued interest to datic of purchase will be calculated at the stated coupon rate against n
itfl3 vahrr_{sfrM.dace 7 Ry�nAe t,e�, asgl::"' awv.;,u;1a�uaL%aumpiy a ivt`asen L, f 999 to elite of pnrchase.
0
For eK"Ie,if S&Y purchases can September 2, 1999 the bands an the Schedule to be optionally pt rdused at September 2,2000,the
Purchase paces and the amount thereof allocated to promapal and accrued interest would be as follows:
Agar-alien
Par Vale Effective Yield i'rom Total
Acurved
AEA Comm+� 31113E i>.iwet 1►sr Q b� coat P�1 lrtestsr o CO
$60,000 7.3°(0 2 . $ S 912102 T63,859.94 557,379.94 $6,48{4.40 Cc
W 80,004 7.25°1e 3. 5 t 9/2f03 $85,146.5E $76,446,58 3 S,700.00 �?
3t1004 7.30a/o 3. 9f2/44 131,929.97128,644,973 85.00
Total Sl?O,M10 S11,46t1.64 $180,936.0 $162071.43 318,4f5.0o
z
`�'
>6 6c �,amu
w
n
Page 2 of
TOLLING AGREEMENT
This Tolling Agreement ("Agreement") is entered into by and between the Allstate
Insurance Company ("Allstate") and Stone & Youngberg LLC ("Stone & Youngberg").
For ease of reference, the parties hereto are sometimes referred to herein individually as a
"Party" and collectively as the "Parties."
RECITALS
Whereas, Stone & Youngberg underwrote the sale of certain bonds issued by the
City of Palm Springs, California Assessment District No. 155 ("the Bonds"); and
Whereas, Allstate purchased some of the Bonds; and
Whereas, the parties believe that certain claims may exist between them; and
Whereas, the Parties wish to carry on discussions about the claims without the
necessity of pending litigation; and
Whereas, a tolling agreement will allow the Parties to discuss these concerns
without any later argument of prejudice due to the passage of time;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth in this Agreement, the Parties hereby agree to toll from the effective date of this
Agreement all claims, causes of action or defenses that either may have against each other
relating to or arising out of the Bonds that have or may have accrued, or claims, causes of
defenses that may arise subsequently as follows:
AGREEMENT
1. This agreement is effective as of May 9, 1997.
2. Based on the foregoing, the Parties agree that any defenses based on the
passage of time (the "Defenses"), including but not limited to statutes of limitations,
government claims statutes, claims requirements, ]aches, estoppel or waiver, which could
be asserted by a Party against, or with respect to, any claims or cross-claims of the other
Party relating to or arising out of the Bonds shall be tolled indefinitely from May 9, 1997
unless and until the Agreement is terminated pursuant to the following two sentences. A
party may terminate this Agreement at any time by providing thirty (30) days' written
notice to the other Party, in which event the Agreement shall be deemed terminated on the
thirtieth (30th) day following notice and the Defenses shall be tolled for the period of
-1-
E110108.C.3
82100.049
May 9, 1997 until the date of termination of the Agreement. In the event that a Party is
served with a complaint naming it as a defendant in litigation relating to or arising out of
the Bonds, this Agreement may be terminated on seven (7) days written notice, provided
that the Party terminating states in the notice that it has been served with a complaint and
intends to invoke the expedited termination provision, in which event the Agreement shall
be deemed terminated on the seventh (7th) day following notice and the Defenses shall be
tolled for the period of May 9, 1997 until the date of termination of the Agreement.
Notwithstanding termination of the Agreement, the period of time from May 9, 1997 until
termination of the Agreement shall be excluded from any calculation of time for the
assertion of any Defenses.
3. Each Party agrees not to commence any actions or proceedings (relating to
or arising out of the Bonds) against the other prior to the termination of this Agreement.
4. This Agreement shall not affect the validity of any Defenses based on the
passage of time which have barred, would have barred or could bar any claim prior to
May 9, 1997.
5. Except as expressly provided in this Agreement, neither Party waives the
right to assert any defense, objection to claim, counterclaim, cross-claims, third-party
claims or any other right that each Party may possess.
6. Any notice authorized by this Agreement to be given to a Party shall be
given in writing and delivered by registered mail, courier or hand delivered against written
receipt, of if transmitted and clearly received by facsimile transmission addressed as set
forth below, of if sent to such party by registered mail, courier or hand delivery to such
other address as such party may designate for itself by notice given in accordance with
this section. Any such notice shall be effective only upon actual receipt thereof. All
notices given by telex or facsimile shall be confirmed in writing, delivered or sent as
aforesaid, but the failure to so confrrmi shall not vitiate the original notice. The address
for delivery of notices and bills to each Party and the respective telephone and facsimile
numbers are as follows:
(a) For Allstate: Allstate Insurance Company: Anthony J. Ceravolo,
Esq., Allstate Plaza South, 3075 Sanders Road, Suite GSA, Northbrook, Illinois 60062,
Fax No. (847) 402-6639, with a copy to Latham & Watkins: Christopher W. Garrett 701
"B" Street, Suite 2100, San Diego, California 92101, Fax No. (619) 696-7419.
(b) For Stone & Youngberg: Stone & Youngberg: Scott Sollers, 50
California Street, Suite 3500, Fax No. (415) 397-9592, with a copy to R. David Mishel,
Esq., Titchell, Maltzman, Mark, Bass, Ohleyer & Mishel, 650 California Street, Floor 29,
San Francisco, CA 94108-2702, Fax No. (415) 981-5027.
-2-
EI10108.C.3
82100.049 _
7. Both Parties are entering into this Agreement without waiving any possible
position that no causes of action have; yet accrued, that no statutes of limitations, claims
statutes or other such requirements have yet accrued or been triggered and without
waiving any possible position that this Agreement is unnecessary based on prior conduct
of the Parties. Neither Party by this Agreement admits or concedes the existence or
consequence of any prior conduct.
8. This Agreement does not constitute an admission or agreement of liability or
that either Party has any claim or cause of action whatsoever against the other.
9. By signing this Tolling Agreement, the Parties represent that they have the
authority to do so.
10. This Tolling Agreement may be executed separately and in counterparts.
Allstate Insurance Company
Dated: /Uvr so / 7 By: Wv
G,yr7ieL�s c7. /Y/i2cs `�
Its: � s,osv—
Stone & Youngberg
Dated: June 9, 1997 By:
Its: Principal
-3-
7
El 10108.C.3
82100.049
20. Counterparts. This Mutual Release may be executed in separate
counterparts which, when taken together, shall constitute the entire agreement between the
Parties.
21. Attorney's Fees. If any legal action is necessary to enforce the terms of this
Mutual Release, the prevailing Party shall be entitled to reasonable attorney's fees and costs of suit
in addition to any other relief to which that Party may be entitled. -
THE UNDERSIGNED HAVE READ THE ABOVE MUTUAL RELEASE AND
UNDERSTAND ITS TERMS. EACH OF THE UNDERSIGNTED IS AUTHORIZED TO SIGN
ON BEHALF OF THE PARTY INDICATED BELOW.
STONE &YOUNGBERG LLC ALLSTATE INSURANCE COMPANY
By: By
Signature Signature
Name and Title Typed or Printed Name
By:
Signature
Typed or Printed Name
Its Authorized Signatories
5
20079-1-Draft:February 24, 1998 6:43 PM SF f266481 v6
MUTUAL RELEASE AND COVENANT NOT TO SUE
This Mutual Release and Covenant Not to Sue ("Mutual Release") is made as of
March 2, 1998, by and between Stone&Youngberg LLC ("S&Y") and Allstate Insurance
Company ("Allstate") according to the terms and conditions set forth below and is to become
effective on the Effective Date defined below. S&Y and Allstate are sometimes individually
referred to herein as a "Party" and collectively referred to herein as "the Parties."
RECITALS
A. On or about March 2, 1998, the Parties entered into a Dispute Resolution
Agreement. The Dispute Resolution Agreement is incorporated by reference herein. Unless
otherwise indicated to the contrary, the provisions and defined terms contained in the Dispute
Resolution Agreement shall apply equally here.
B. The Dispute Resolution Agreement provides certain contingent and
voluntary methods for resolving a dispute between the Parties. Upon accomplishment of certain
events, the Parties agreed that this Mutual Release will become effective. Specifically, this
Mutual Release will become effective if and when Allstate is paid principal and interest for its
$1,030,000 par value Class 2 Bonds pursuant to the terms of the Dispute Resolution Agreement.
If Allstate is not paid principal and interest therefor pursuant to the terms of the Dispute
Resolution Agreement, this Mutual Release will become null and void and of no force and effect.
C. The purpose of this Mutual Release is to implement the agreements
reflected in the Dispute Resolution Agreement between the Parties upon the occurrence of the
certain events defined therein.
NOW, THEREFORE, for good and valuable consideration described in the
Dispute Resolution Agreement and the covenants and mutual promises and releases contained
herein, the receipt of which is hereby acknowledged, the Parties agree as follows:
1. Allstate Release. Allstate, on behalf of itself and its administrators, agents,
servants, employees, representatives, directors, officers, assigns, parent entities, subsidiaries,
affiliates, attorneys and successors ("Allstate Releasors") hereby fully and forever releases and
discharges S&Y as well as its managers, members, administrators, agents, servants, employees,
representatives, directors, officers, assigns, parent entities, subsidiaries, affiliates, stockholders,
attorneys, predecessor limited partnership, former general and limited partners, successors and
insurers (collectively "S&Y Releasees"), of and from any and all rights, claims, damages,
liabilities, expenses and causes of action including but not limited to claims for attorney's fees or
costs (collectively "Claims"), in law or equity, under state or federal law, whether currently
known or unknown, suspected or unsuspected, foreseen or unforeseen, concealed or hidden,
which arise from or in any way relate to Assessment District No. 155, the issuance, offer,
purchase or sale of Limited Obligation Improvement Bonds Assessment District No. 155, issued
by the City of Palm Springs, California(the "AD 155 Bonds"), the formation of Assessment
EXHIBIT B
1
20099-1-Draft:February 24, 1998 6:43 PM SF #266481 v6
District No. 155, the Plan or the subject matter of the Dispute Resolution Agreement, including
but not limited to any securities purchased or sold by Allstate, S&Y, or any other person or entity
pursuant to the Plan (the "AD 155 Claims"), which the Allstate Releasors have ever had, now
have or may hereafter have against any of the S&Y Releasees.
2. S&Y Release. S&,Y on behalf of itself and its managers, members,
administrators, agents, servants, employees, representatives, directors, officers, assigns, parent
entities, subsidiaries, affiliates, stockholders, predecessor limited partnership, former general and
limited partners, attorneys and successors (the "S&Y Releasors"), hereby fully and forever
releases and discharges Allstate as well as its administrators, agents, servants, employees,
representatives, directors, officers, assigns, parent entities, subsidiaries, affiliates, attorneys,
successors and insurers (the "Allstate Releasees"), of and from any of the AD 155 Claims which
the S&Y Releasors have ever had, now have or may hereafter have against any of the Allstate
Releasees.
3. Release of Unknown and Unsuspected Claims. The Claims released in this
Mutual Release shall hereinafter collectively be referred to as the 'Released Claims." This Mutual
Release shall act as a release of all Released Claims described above, and the Parties hereby waive
the benefit of Section 1542 of the California Civil Code which reads as follows:
A general release does not: extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor
The Parties acknowledge in that connection that the Allstate Releasors and the S&Y Releasors
may have sustained damages, losses, costs, or expenses that are presently unknown and
unsuspected, and such damages, losses, costs, or expenses they have sustained may give rise to
additional damage, loss, cost, or expense in the future. Nevertheless, the Parties acknowledge
that this Mutual Release has been negotiated and agreed upon in light of this situation and
expressly waive any and all rights which they may have under § 1542 of the California Civil Code,
or any other state or federal statute or common law principle of similar effect.
4. Non-Assi nment. The Parties hereto represent and warrant to each other
that each is the owner of all respective Released Claims, and no other person or entity has any
interest therein, nor has either Party sold, assigned, transferred, conveyed, or otherwise disposed
of any interest in a Released Claim released pursuant to this Mutual Release, or that would have
been released under this Mutual Release if held by the Releasor on the Effective Date hereof,
except as referenced herein.
5. Governing Law. This Mutual Release shall be governed by the laws of the
State of California without regard to its provisions relating to conflicts of laws.
6. Entire Agreement. This Mutual Release constitutes the entire agreement
between the Parties and supersedes all previous understandings, agreements and communications,
whether express or implied, oral or written, relating to the subject matter of this Mutual Release.
2
20079-1-Draft:February 24, 1998 6:43 PM SF #266481 v6
This Mutual Release shall not be amended, altered, modified, supplemented or otherwise changed,
except by a writing signed by the Parties.
7. Negotiated Terms. The Parties represent and agree that the terms of this
Mutual Release have been the result of negotiations between the Parties and have been drafted by
the Parties and their legal counsel. Accordingly, the Parties agree and understand that neither this
Mutual Release nor any of its provisions shall be construed against any either Party-under any
statutory or common law rule to the effect that any agreement is to be construed against the
drafter.
8. Confidentiality. The Parties agree to keep all terms of this Mutual Release
and all discussions concerning settlement strictly confidential, except as may be required by law,
or rule of an applicable regulatory authority or self regulatory organization. The Parties further
agree not to discuss the settlement with any media. Any breach of the confidentiality required
under this paragraph shall be deemed a material breach of this Mutual Release.
9. Representation By Counsel. The Parties acknowledge that they have been
represented by independent legal counsel who have advised them in connection with this Mutual
Release and who have explained the meaning of the legal effect of each term of this Mutual
Release. The Parties acknowledge that they have read and understand the meaning and
consequence of each term of this Mutual Release, and that they are signing these documents
voluntarily.
10. Covenant Not To ;Sue. As of the Effective Date defined below, the Parties
respectively covenant and agree not to assert in any procedural form or forum, whether initially or
by way of defense, offset, or cross-, counter- or third-party claim, any Released Claim against any
person or entity then entitled to a release hereunder(namely the S&Y Releasees and the Allstate
Releasees). As of the Effective Date, the Parties further covenant and agree not to assert against
any person or entity not then entitled to the benefit of a release hereunder, in any procedural form
or forum, whether initially or by way of defense, offset, or cross-, counter- or third-party claim,
any Claim arising or accruing on or before the Effective Date hereof(or arising or accruing later,
but based on any transaction, occurrence, act or omission that occurred on or before the Effective
Date hereof)that causes or results in the assertion by any person or entity whatsoever of any
Claim against any person or entity entitled to the benefit of a release hereunder relating to the
Released Claims. Allstate shall indemnify, defend and hold harmless the S&Y Releasees from and
against any and all Claims (including without limitation attorneys' fees) resulting from its own
breach of this covenant not to sue. S&Y shall indemnify, defend and hold harmless the Allstate
Releasees from and against any and all Claims (including without limitation attorney's fees)
resulting from its own breach of this covenant not to sue. Notwithstanding the foregoing, Allstate
agrees that S&Y, either alone or together with the City or any of the City's agencies or
authorities, may sue or bring action against bond counsel for the original AD 155 Bond offering,
namely the firm known as Brown, Diven&Hentsche, or Brown&Diven, and any of its members
or representatives.
3
20079-1-Draft:February 24, 1998 6:43 PM SF #266481 v6
11. Enforcement of Mutual Release. Notwithstanding anything to the contrary
in this Mutual Release, the releases and covenants not to sue granted in this Mutual Release do
not extend to, and nothing in this Mutual Release will be construed to limit either Party's rights to
enforce, this Mutual Release according to its terms. Furthermore, the covenant not to sue shall
not apply to any suit or claim brought by S&Y, alone or with others against the law firm of
Brown&Diven or Brown Diven&Hentsche, or any member thereof, and/or their insurers.
12. Nonsignatories. The signatories to this Mutual Release are S&Y and
Allstate. To the extent that this Mutual Release provides for releases in favor of the S&Y
Releasees and Allstate Releasees, in addition to S&Y and Allstate, this Mutual Release is declared
to have been made for their use and benefit, and is further declared to be intended to bar the
assertion by the Allstate Releasors and S&Y Releasors, in addition to Allstate and S&Y, of
Released Claims against the S&Y Releasees and the Allstate Releasees respectively.
13. No Admissions. This Mutual Release is entered into in compromise of
disputed claims. Neither the execution of this Mutual Release and the releases, dismissals and
other documentation provided for herein, nor the payment of any consideration hereunder, nor
any other act or agreement in furtherance of this Mutual Release or the Dispute Resolution
Agreement shall be construed in any way as an admission of wrongdoing on the part of any Party
hereto or an admission of facts giving rise;to liability.
14. Authority. Each individual executing this Mutual Release on behalf of an
entity represents and warrants that he or she is duly authorized representative of that entity with
full power and authority to bind it to each term and condition hereof.
15. Further Acts. Each of the Parties hereto agrees promptly to execute all
other documents and take all other actions reasonably necessary to effectuate all of the terms and
conditions of this Mutual Release.
16. Effective Date and Condition. This Mutual Release shall become effective,
if at all, on the date ("Effective Date")Allstate has been paid the principal and interest for all of its
Class 2 Bonds pursuant to the terms of the Dispute Resolution Agreement. If Allstate has not
been so paid, the mutual releases and the covenants not to sue provided for herein and this Mutual
Release shall be null and void and have no force or effect.
17. Successors and Assigns. This Mutual Release shall be binding upon and
inure to the benefit of the Parties and their respective successors, assigns and any entity through
which the Parties do business.
18. Recitals. The Parties agree that the RECITALS are accurate and are
incorporated in this Mutual Release.
19. Descriptive Headings. The headings used herein are descriptive only and
shall not determine, define, limit or otherwise affect the meaning or effect of any such provisions.
4
20079-1-0raft:February 24, 1998 6:43 PM SF #266461 v6