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Robert L. Mayer - 1993-06-14 (15)
I 1► 1 , 1 • r I 1 I • Waterfront 's construction loan to a data no earlier than December 31, 1992 , and Dank's approval. of Waterfront 's payments provided for In Paragraph 7 herein, including the amount of the interest reserve to be provided to Bank; and (il) Bank approves this Third Amendment and releases any right, title, and interest that ti it might otherwise have in any revenues pay- able by Agency with respect to Separate Development Parcel No . 1 under Paragraphs A and 5 of Attachment No . 5 of the LNisting ODA and Paragraph 1 of the Second Amendment (excepting such right, title, ar.d interest that Bank may have in the revenues payable in accordance with Paragraphs 3-•5 of this Third Amendment) , with the form and content of such release being subject to tho reasonable approval of the city Attorney. Agency agrees to act reasonably and to cooperate with Developer and Waterfront in reviewing, approving, and execu- ting any documents required to accomplish the purposes of this Paragraph 8 . In the event that Agency terminates this Third Amendment pursuant to this paragraph 8 , none of the panties shall hav+a any rights or obligations with respect to f the others except as to paragraphs 1, 2 , 91 and lU hereof which shall survive such term!nation and remain in full force - 13- �1 F r. r r • 1 • r and effect. Subject to Agency' s rights of termination, in no event shall Developer-'s or Waterfront's failure to satisfy either of the foregoing conditions constitute a default by Developer or Waterfront hereunder. S . Paragraph 7 (b) of Attachment No. 5 of the Existing DDA is hereby amended by deleting the following words in the introductory clause : "Except as expressly set fur'th in Para- grap'. 4 (f) and Paragraph 5 (vi) of this Attachment No. 5, " . j Paragraph 7 (c) of Attachment No . 5 of the Existing DDA is i hereby deleted and Paragraphs 7 (d) and (e) ars hereby re- lettered as Paragraphs 7 (c) and (d) , respectively. 10 . Paragraphs 1 and 7 of the second Amendment r.r:e superseded by this Third Amendment. Paragraphs 2, 4 , 31 8, 10, and 12 and the second sentance of Paragraph 11 of the Second amendment are hereby deleted in their entirety. r , -14- f 11 . Excrpt as amended herein, the Existing DDA shall remain in effect in accordance with its terms. REDEVELOPMENT AGENCY OF THE CITY OF rJN INCTON BEACH C2i rmar, ATTF-9T s secretary � APPROVED A5 TO FORM: INITIATED AND APPROVED As TO CONTENT ..., .. G� .�.►l Agency Spec. al Cqj, 73el Deputy City Adr; ri stretnr RCVIEWED AND A.PVROVv6U APPROVED: AS TO FORM: dd City ttor. ey/Ag nc • dministratcr/ cut ve •torne_i 3_3�.5�: Director 4 ROBERT L. -MAYER, as Trustee of the ROBERT L, MAYER TRUST OF 1992 , dated June 22 , 1982 , as alnended ,l By: RO RT L. iti.': R rsignaturas continued on next page] ..1g.. .. .. ..A._� .J. ..... .. ._. ._.... ..fix ... _._..._.. ... .. .._J- .. .... - --.fit - �. -.� �. ._.. .--.....T -• -... ..---._.._ �__.`+ _ .--' -,-�-----��.. r• �� --• w -Mrs r Y i I r � w• • I , 1 - CaliforniaWATERFRONT CONSTRUCTION NO. lt • partner- r-hip T .A Waterfront ,BY: The yCalifornia • • • • M General Partner N J + u • '� f { Chairman • • •• ard chief Financial Officer w N Stel • President rr • 9/.112/065580-0001/166 r r 1 ' • qb r .r • � 1 J • r •� +` 7. ( r _ a w • k. . . •v .� / • 4 - a Mua 4 I FOURTH AMENDMENT TO DISPOSITIOR AND DEVELOPMENT AGREEMENT By and Among THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, ROBERT L. MAYER, as Trustee of the Robert L. Mayer `wet of 1982 , dated June 2.2, 19821 as amended, and WATERFRONT CONSTRUCTION NO. I a California Limited partnership THIS FOURTH AMENDMENT TO DISPOSITION AMVD DEVELOPMENT AGREEMENT (the "Fourth Amendment") is entered into this day of April, 1992, by and among the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON SUCH (the "Agency") , ROBERT L . MAYER, as Trustee of the Robert L. Mayer Trust of 1982, dated J»ne 22, 19820 as amended ("Developer") , and WATERFRONT CONSTRUCTION NO. 10 a California limited partnership ( "Waterfront") (collectively, they "Parties" ) . A. On or about August 15, 1988 , the Agency egad rdveloper entered into a Disposition and Development Agreement (the LOriginal JDA" ) . ,t I S. On or about April 101 1989 , Developer , Waterfront , and certain affiliated entities entered into an Assignment and Assumption Agreement pursuant to which Developer assign6d to Waterfront and Waterfront assumed (through a aeries of assignments to the affiliated ent;ties) all of Developer ' s right, title, and interest in and tj that portion of the "Sits" described in the Original Dw)A an "Sepprate Development Parcel V C. On or about June 17 , 1991,. ic:ie Agency and Developer entered into a Fxrat Amendment to Disposition an-! Development Agreement (the "First Amendment") . Waterfront has executed a document consenting to the First Amendment . On or ebaut August 1, 19911 the Agency, Pevel.oper, and Waterfront entered into a Second P'.mendment to Disposition and Development Agreement (thm "Second Amendment") . D. On or about March 16, 1992, the Agency, Developer, and Waterfront entered into a Third Amandment to Disposition and Development Agreement (the "Third Amendment"I . E. Pursuant to Sectiun 7(1 ) of the Third Amendment, Waterfront covenanted to pay the proceeds of the 1992 lt6venue Bands (as defined in the Third Amendment) to Doi-Ichi Kangyo Funk, a portion of, v:hich is for the purpose of settlement of litigation and maims arisins out of the construction of the 04-16--92 0371Q/2460-07 - 2 - w.& Waterfront Milton, thereby facilitating the restructuring and satisfaction of certain financial commitments among the Parties . F. It has now been determined by the Portion that the vctu;.l settlement of the iltigation net forth ir, Section 7(i) of the Third Amendmont in not essential for restructuring of the various finarxia?, obligationts among the Parties as provided for in the Third Amendment in that Chicago Title Company will , upon the deposit into eacrow account number 96-622525-4 of the sum of not less then $1 ,526400 (the "Escrow Account") issue an. PJ#TA extended coverage polio; (together with CLTA endorsssemanto) assuring the priority of the Agency' s foe simple interest in Separate Development Parcel No. 1 (the "Policy") stO the priority of the lied of Dai-Ichi Kangyo Bank's loan. G. The Parties now desire to provide for the implementation of the, Third Amendment as set forth below. The Parties hereby agree to amend the Third Amendment as follows : I i sSECTZ01� The parties hereby agree that the net proceida of the 1992 Revenue Bonds should be $4,3aQ, Q00 . i 04-16- 92 , 02710/2400-57 w 3 - y �,. As an alternative to the "Settlement of 31tigation and claims arising out of construction of the Waterfront, Hilton" as provided in Section 7(1) of the Third Amendments the Agency shall perinit Waterfront: to pay to Dai-Ichi Kangyo Bank a portion of the r:et proceeds of the 1992 Revenue bonds for the purpose of dnpcsitinq those proceeds into the Escrow Account in an amount sufficient to cause Chicaqo Title Company to issue the Policy. The Policy shall not list any of the litigation set forth in Section 7(i) of the Third Amendment as Exceptions and Exclusions and must assure the validity of the Agency' s fee. :;ample interest in Separate Development Parcel :4o. 1 to the satisfaction of the Agency Executive Director and the City Attorney in their sole and absolute discretion . 6ECT19M 3 . Developer and Waterfront hereby agree to defond, indNmnify and hold Agency and City of Huntington Beach harmless with respect to any claim or cause of act- on ar3aing out of the construction of the Waterfront Milton ("Construction Litigation" ) . In addition, Developer and Waterfront hereby covenant to pay any final Judgment with respect to the Construction Litigation in excess of the Escrow Amount within 60 days after entry of such final judgment. In the event the final judgment in t1.o Construction Litigation is loss than the Escrow Amount, the difference shall be deposited with Dai-Ichi Kangyo Bank For disburse►,m nt In accordance with the Credit Agreement . 0371Q/3460-57 4 - r .err t =.UQ,N-,. Except as provided herein, the Original DDA, First Amendment, Second Amendatent and Third Amendment shall remain in effect, in accordance with their respective terms ; conditions and novenante . REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: _ r�irrao�� ATTEST: Agency if APPROVED AS TO D l NT gency Special Counsel Deputy City Ad kaint r '.REVIEWED AND APP90VED APPROVED: AS TO FORM 01 Attc rneyPA9eucy Attorney All ity Aek..nin.istrat;or/Vcutive Director +L 4 z- ROBERT L. KNYER; re 12i-ustee of the ROBERT L. MAYER TRUST OF 1982, date? June 22, 1982 , as amended By: RO/XR-kT&L. MAM (SIGNATURES CONTINUED ON PAGE 61 06-16-92 03710/2460-57 - 5 - WATERFRONT CONSTRUCTION NO. 1, a California limi.tod partnership BY: The Wste::front, Inc. . a California corporation General Partner By! �' te r' 4,a...� Rob®et I•. May "� Cha4.rman of the oa-d and Chief Tinancial Officer : Q f Stephe» K. Rors President Q4-li -qit t 0371Q/2460-57 6 GUARANTY Dated as of August 1, 1991 ROBERT L. MAYER, for himself in his individual capacJ.ty ( "Mayer" ) , WATERF"ONT CONSTRUCTION #1 , a California limited partnership ( "WaLertronV ) , and WATERFRONT PARTNERS, a California general partnership (collectively, the "Guarantors" 1 , in order to induce THE REDEVELOPMENT AGENCY OF THE CITY OF ' HUNTINGTON BEACH ( the "Agency" ) to appzove and entar into ( i) the Second Amendment to Disposition and Development Agreement dated August 1 , 1991 , by and among the Agency, Robert L. Mayer , as Trustee of The Robert L . Mayer Trust of 1982, dated June 22f 1982, Gs amended ( the "Mayer Trust" ) and Waterfront, and ( ii) the Consent to Assignment dated August 1 , 1991, entered into by and among the P_gency, the Mayer Trust . Waterfront, and First California Capital Markets Grot!pr i. c. ( "First California" ) , hereby uncondit.ionw ally ind irrevocably guarantee , as a continuing oW.gation, timely performance of the Obligations set forth herein in accordance with the following terms : 1 . pei,,tigns . unless the context otherwise requires , all terms defined, ar..� all rules o; interpretation applicable in the Disposition and Development Agreement and the Phase 1 Lease have the same meanings and a,ppl 3.cat3 on in this Guaranty. When used in this Guaranty: "Additional Guaranty" means that certain Guaranty of even date herewith executed by the Mayer. Trust. "Additional Guaranty Deeds of Trust" mean that certain Deed of Trust (Agency Deed of Trust No . 1 ) and that certain Deed of Trust (Agency Deers of Trust No. 2 ) of even date herewith executed by the Mayor 'trust as trustor in favor of the Agency as beneficiary, securing the Additional Guar 7-rty. "Assignment Agreement" means that certain Assign- ment Agreement dated as of August 1 , 1991, entered into by and among the Mayer Trust, Waterfront, and First California, as the same may be amended from time to time. "Consent to Assignment" means that certain Consent te. Assignment dated as of August 1, 1991 , entered into by and among the Agency, the Mayer Trust , Waterfront, and First California. i r 2/223/065580-0001/42 0/23/91 i f "Disposition and Development Agreement" means that certain Disposition and Development Agreement dated August 15 , 1988 , entered into by and between the Agency and the Mayer Trust , as the same has heretofore been amended and may c« amended from time to time in the future. "Obligations" means , at any time and From time to time during the term oC this Guaranty , all of the following : ( i ) Waterkront ' s timely payment of rent , payment of insurance premiums , payment of utility charges , and performance of its other `inancial obligations under the Phase 1 Lease referenced herein, as and to the extent required in the Phase 1 Lease ; and ( ii) The indemnification obligations of the Mayer Trust and Waterfront in ?anror of Agency as set Forth in Paragraph 11 of the Consent to Assignment; and ( iii) Reimbursement to the Agency for any and all losses , claims, damages, liabilities , or expenses, joint or several , to which Agency may become subject under any statute or at law or in equity or otherwise ( including without limitation any legal or other expenses incurred by Agency in connection with investigating any claims against :it and defending any actions ) , insofar as such losses , claims, damages , liabilities , or expenses arise out of or are based un_ cn, directly or indirectly, the issuanc; by First California or its aesignees of Certi- ficatea of Participation in the "Payment Rights" ( as defined in the Assignment Agreement ) , but excluding t,heEefrum payments lawfully due from the Agency to First California or its a%;�signees Linder the a Disposition and Development Agreement. "Obligor" shall have the meaning ascribed in Paragraph 3 herein. "Phase 1 Lease" means that cc r, tain lease dated as of April 28, 1989, entered into by and between the Agency, as Lessor, and Waterfront , as Lessee, as the same may bo amended i rom time to time. 1: ,. - � a Nor* "Waterfront" means the lessee under the Pha3k. 1 Leaner including Waterfront anti any successor-in--interest to its leasehold estate Under the Phase 1 Lease . 2 . gMURnty• (a ) The 1 ).ability of the Guarantors shall commence as of I►ugust Is, 1991s, and , svb ject to the provi, -ions of Section 2 (b) below, this Guaranty is; an absolute, uncondi- tional.i irrevocable and continuing guaranty For the full and punctual payment and performance of the obligations ( anti not of their collectibility only) , irrespective of the validity, legality, genuineness, reculariQ or enforceability of the Obligations or any other circumniances that might otherwise constitute a legal or equitable discharge of a surety or guarantor- and this Guaranty is not conditioned upon any requirement that the Agency first attempt to collect any of the Obligatirrts from Waterfront or from the Mayer Trust under the Additional Guaranty or otherwise or resort to any security for the Additional Guaranty or other means of obtaining payment of any of. the Obligations; pro i ,d however that the aggregate total liability of the Guarantors pursuant to this Guaranty and of the Mayer Trust under the Additional Guaranty I shall not exceed Ten Million Collars ( $101C00, 000 . 00 ) . ( b) The liability of the Guarantors under this Guaranty and of the Mayer Trust under the Additional Guaranty shall be terminated and this Guaranty shall be of no further force and effect upon the earlier of ( i) the "Repurchase Date" referenced in Paraar ph 8 ( a) of the Assignment Agreement and the close of the "Repurchase Escrow" referenced in Paragraph 9 of the Assignment Agreement , or ( ii ) the "Calculation Date" referenced in Paragr-iph 8 (c) of the Assigrunent Agreement ( if applicable) . Notwithstanding the fore9zing termination of the liability of the Guarantors hereunder and of the Mayer Trust under the Additional G%Aaranty, the agreements and covenants of Guarantors under Sections 4 and 9 hereof shall survive such termination. 3. Agency ' s FLe24gM tg deal With tr she„ ,layer rusk . Wa gr r=---and Other P2rsons . The Agency shall have complete discre� ion, without giving notice to or obtaining the consent of any of the Guarantors or of the Mayer Trust under the Additional Guaranty, to deal with the Mayer Trust, Waterfro;st, and with each other person that now is or after the date hereof becomes . liable ii, any , manner for any of the Obligations ( herein&ft;er , collectively, the "Obligor" ) , in such ,canner as thn Agency shall decide and, accordingly . the Guarantors gran, to the Agency full authority, in its sole discretion, whether before or after t-erminat3 on of this Guaranty, to do any or all of the following, without limiting the ganigrality of the foregoing : extend credit, make loans and afford other financial accommodation to the Obligor at such :times, in such amount-a and on such terms as the Agency '+may approve; vary the terms of, alter, compromise , accelerate, or grant extensions or renewals of the time or manner of payment of any present or future Obligations of the O?;iigor to the Agency; assign or. tr?nsfer this Guaranty or any other instrument evidencing „V securing the obligations in whole or ir. part; varyi exchange, release or discharge , wholly or partial?y, the Obligor or any other gu3rantac of the Obligations ; compromise or make any settlement: or other arrangement with the Obligor or any other guarantor ; ond, if the Obligations are . now or hereafter secured, exchanged , substituted, or released in part or in full the security given for the payment and performance of the Obligations . This Guaranty shall be in addition to any other guaranty or security for the Obligations , including without ?.imitation, the Additional Guaranty and the Additional Guar inty Deeds of 'Mist , and shall not be prejudiced or rendered unenforceable by the invalidity of any such other guaranty or security. 4 .• No Duty of AgeQ k.g- .Advise. The Guarantors assume reAlponsibility for being and keeping informed of the fi�lan-- cial condition of the Obligor and of all other circunstancee bearing upon the risk of nonpayment of the Obligations and agree that the Agency shall have no duty to advise the Guarantors of information regarding any condition or circunt- stance or any change in any condition or ctrcumstarce. 'the Guarantors acknowledge that, the Agency has not made any representation to the Guarantors concerning the financial condition of the Obligor . S . JnenrorreeAdlity Qf 0,bli a,t-iQ 3 Against Oilig , If For any reason the Obligor has no legal existence or is under no legal obligation to d;.srharge any of the Obligations undertaken or . purpirted to b,e undertaken by it or on its behalf, oz. if any ; I the mono s included in the Obligations cannot �;e recovered - n full from th4 Obligor by operation of law or. for any other reason, this Guaranty shall nevertheless be binding cn the Guarantors to toe same extent as *:.f the Guarantors at all times prior to demand. by the Agency for Payment hereunder had been, and at the time of zuuh d-Mand were, the principal debi.or on all such Obligations . 6. 20MAndia Fu_..._P.d ent, Demands by the 'Agency for payment hereunder may be made on any number of occasions . Mach demand shall be in writing (with reasonable detail ) an shall be effective As to each Guarant;ov when handed to such Guarantor , yr it: c) ilren b-'J mail , after it is placed in the mail addressed to . each of; ttne Guarantors ' addresses on the signature p.agle hereof , A dated statement signed b an officer of the Agency of rhga a.rnot+nt of the Obligations at the time owing to the Agency by the obligor shall be prima faca.e ev., dercce t.heroof (absent wani.fest error ) as between the Guarantors and the Agency in any legal proceedings against the Guarantors in connection; ..,ith this Guaranty. 7 . Guaran_jrs ' Agreement: to Pay. if claim is ever made upon the Agency for repayment of any amount or amounts rec:eivcd by the Agency in payment of any of the Obligations and the Agency repays all or part of such amount, then, notwithstanding aity revocation hereof or the cancellation of any "int e or other instrument evidencing the Obligations, the Guara, % -ors shalt be and sha1.1 rn.rnain liabl_ to the Agency, for the amount: so repaid to the same extent as it such amount had never originally been received by t!te Agents. Interest shall accrue on all. sums nut; paid by t11-a Guarantors to the Agencv after demand at a rate of ten percent ( 10% ) p-.2r arinurn. a, !�:j gas Affecting_0bligor or Guarantors . This Guaranty shall remain in full force and effect , notwith- standing any change in. the name, membership, constitution, or, piLace of formation of the Obligor or any change of the t11,11t.ior into etnot:lhei form of business entity. 9 . Vaiverg by Gilgr., nt rs . The Guarantors waive any right to require ttie Ardency to proceed against the Obligor or any other person at any time or to proceed against or exhaust any security held by the Agency or granted for any of the Obligations or to pursue any other remedy whatsoever at any time, including without limitation , the Additional Guaranty and the Additional Guara.nt:y Deeds of Trust . The Guarantors further waive , ;:o the fullest extent permitted by law , all defenses that at anit time may be available to t:he;n or the Obligor by virt�:�. of any statute of limitations . The Guarantors waive any right to raise as a defense to t• e enforcement of this Guaranty any defense arising by -reason of any dt.sabilit:y or other defense of the Obligor or by reason of the cessarion from any cause whatsoever of they li.abilit:ies of the Obligor and further waive the right to interpose any counterclaim or setoff of any nature . The Guarantors also, waive all rights of subrogation against the Obligor until all of the Obligations have been satisfied in Eull . The Guarantors further waive notice of default by the Obligor , notice of acceptance of this Guaranty, presentments , notices of protest and notices of every kind and nature irclud-rig ttnz:: of any action or nonaction on the part of the Obligor or the Agency. The Guarantors waive any defense based upon -5_ u . y an election of: renedies by th(:.' Agency including , without Iimit:a' 4.on, any election to r,roceed by •iudicial or 1'lorijudicial. fareclostire or by deed in lied thereof , or any election r)f reme-,I-Len L-haL rle�st:roys or otherwise impairs the subrogation rights o the C Aar.antors or the rights of the Guarantors to proceed against the Obligor for reimbursement , or both ( including without limitation California Code of Civil Procedure Sections 580ar 580br 500dr and 726 ) . The Guarantors further w: i.vr_ all rights and banefits which might otherwise be available to the Guarantors3 under California Civil Code Sections 2009 , 2810 , 2819 , 2839 , 2845: 2848 , 2849 , 2850 , 2899 , and 3433 . 10. P odificaitior. - etc. Prohibited. This Guaranty constitutes the final understanding of the Agency and the Guarantors . No provision of this Guaranty may be mcalf;.ed, waived, discharged , or terminated except by a written agreement signed by the Agency and Lhe Guarantors expressly referring to the relevant provision ()C this Guaranty . No such waiver shall extend to or affect. any Obligations not: expressly waived unless specifically so stated but instead shall be effective only in the -�pecif.ic: instance and for the specific purr-ose for which given. No course of dealing or delay or omission on the part of the Agency in exercising any right shall operate as a waiver . 11 . Restriction on Uttgex uarantees . During the term of this Guaranty, the Guarantors covenant and agree that they sha � l not execute any other guarantees i.n favor of any third party or parties, excluding only guarantees with ;.taximum face amounts ( excluding iaterest , penalties , and collection %:osts ) as follows : ( i ) a guaranty not to erceeu the sum of Two 3undred Fifty-Seven Thousand Dollars ( $ 257 , 000 . 00 ) in favor of J.A. Jones construction Company or related entity ( tile contractor on the Phase 1 hotel ) , ( ii) a guaranty not to exceed the sum of One Million Five Hundred Thousand Dollars ($1, 500 , 000 .00) in favor of Dai Tchi Kangyo Bank Ltd . or related entity ( the construction lender on the Phase 1 Hotel ) , and ( iii ) a guaranty not to exceed the su.n of Twa j Million One Hunared Fifty Thousand Dollar6 ( $2 ,150y000 . 00 ) in favor of Western Bank or other leasehold mortgagee loaning Funds for pre-development and development cosis authorized under the Disposition and Development Agreement . 12 . Aepreogn.ta.tign _ alnd rra8.tiles . Each Guarantor hereby represents and warrants to the Agency as follows ; 1 (a) gj}e Ca2rUy. The execution, delivery, and performance of this Guaranty aze within the Guarantor ' s legal capacity, do not contravene any law or contractual restric.- -6- c .f tion binding on or affecting the Guarantor. , and do not result: in or require the f;rea►:ion of: any lien upon of with respect to the Guarantor. ' s properties . ( b) Government`al. Approvals No authorizati,-an, approval , or other action by, and no not?.:-e to or filing with any governmental authority or regulatory body is regUired for the due e:cecut.ion, delivery, and performance by the Guarantor of this Guaranty , other than is provided herein . ( c) I: ndi, may_ Effect: . This Guaranty is the legai , valid, and binding obligation c.E the Guarantor enforceable against the Guarantor in accordance with the terms hereof . (d) Litigatign. 'There is no pending or threatened action or proceeding affecting the Guarantor before arty court: , governmental agency, or arbitrator that may materially adversely affect the financial condition of the Guarantor or the ability of the Guarantor to perform his obligations under this Guaranty, other than as previously disclosed in writing to the Agency. The Foregoing representations and warranties are material , shall survive the Agency ' s acceptance of this Guaranty and shall continue so long as this Guaranty remains in force . The Agency shall. be entitled to rely on su.,h representations and warrant-i k_-; , whenever the Agency sees fit to grant time, credit, or accommodations to the Obligor . 13. Attorneys ' Fees and Legal Fro,geedincr . If any Guarantor fails to perform any duties hereunder , breaches any warranties , or is otherwise liable to the Agency ( herein, collectively, the "defaults" ) , such Guarantor promises to pay all costs of collection and reasonable attorneys ' fees actually incurred by the Agency on account of such defaults, whether or cxot, suit is Filed, including all attorneys ' fees and costs incurred by the Agency in any bankruptcy or Judicial or nonjudicial forec103ure proceeding. This Guaranty is governed by , and shall be construed in accordance with, the laws of the State of California . Each Guarantor consents to the personal Jurisdiction of any state or federal cc:urt located in orange Count-• California. 14 . Sy�g2girzgrang A ssior �,. This Guaranty shall be binding on the Guarantors and thpir peraor:3'. representatives . i i -7- • r 15 JJ V-y 4 ' °nv l p A IN WITNEV S WHEREW, each Guarantor has executed ind delivered this Guaranty as of the date first above written. DLTV) : Augu3t 1. , 1991 "Mayer " WATERFRONT PARTNERS, a California .funeral partnership Itob _rt L . Mayer ; asp ustee of the R,-�,ert L. Mayer T�.�iist of 1982 , dated June 22 , 1982, as amended, General Partner By t Stephen W . Bone, as Trustee of the Bcne Trust of November 30 , 1988, General Partner Sy: )> Patricia I . BUne, as Trustee of the Bone Trust of November 30 , 1,986 , General Partner WATERFRONT CONSTRU0.7.ION t 1 , a California limited partnership By: THE WATERFRONT, INC. , a California corporation , General Partner BY: /aftef; Robert L. Mayei Chairman of the Board and (thief Financial Officer. ( Signatures continued on following page ) _8_ .y� Stephen G . Rone President "Waterfront" Add re, f"or all �;u-i rantnz a : C/0 The Robert L . Mayer Corporation 660 Fewport Center Drive, Suite 1050 Newport Beach, California 92660 Telephone : ( 724 ) 759-8091 Telecopier : ( 714 ) /20--1017 1, L � 1 CCIt"rf T TO ASSI'GHbIENT This Consent J,u entered into au of t:ho lot day of August, M 1991, by nd among The Redevolopnment Agency of 1:116 City of Huntington Reach , a pub],is agency (the "Agntic.711 ) , Waterfront � Conmtruction 14o. 1, a c:aliforniar limited partna'--ship ("Waterfront" ) , Robert L. Mayer, as Trustee of the Robert L. Mayor Truat of 1982 , dated Tune 2.2 , 1.9fu , as amended ( "Mayer") , and Firs;: California capital Harkens Croup, inr. . , a Calif ornin coxporaetion "' i.ret California") , with reference to the �'0:,3.otring : R E C 1 7' A L S A. Mayer: and thou Redevelopment Agency of the City of Huntington Beach, California (the "Agency" ) are parties to that certain Disposition and Development Agreement dated kuguet 1.5 , 1988 (the "COCA") , providing for the development oZ certain real property (the "Site") located within the City of Huntington Beach, California . B. *layer and the City of Huntington Beach, California (the "City") are parties to that certain Development Agreement dates: August 15 , 1988 (the " ,evelopment Agreement") concerning the development of the Site . C. Mayer and the City were pe-:ties to that certain Second Amended and Restated Lease dated August 15, * 1.988 (the "Site Lease") setting forth the terms of Xayer 'a lease of a portion of the Site from the City. D. Pursuant to the Assignment and Assumption Agreement executod on April 10 , 1989 betweon Mayer, Waterfront, Waterfront Partners , a California Genera]. Partnership, and a tenancy in common comprised of Mayer, Stepheo Bone and Patricia Bone (the "Tenancy in Common") , certain of Mayer' s rights under the DDA, under the Development: Agreement, warier the Second Amended Leasa and in and to certain permits and other development rights, were assigned by Mayer to Waterfront Partners , by Waterfront Partners to the Tenancy in Common, and finally by the Tencncy in Common to Waterfront. Under the terms of the Assignment and Assumption Agreement, Mayer remaLis responsible to the Agency fnr performance of the obligations assumed by Waterfront thereunder. The rights assigned to Waterfront pursuant to the Assignment and Assumption Agreement are limited to that portion of the Site referred to an Separate development Parcel No. 1, and which shall be referred to in this Agreement as "Phase 1, " and include an assignment of Mayer's right to receive payment of the Phase 1 Paragraph 4 Indebtedness and the Phase 1 Pnragraph 5 Coats, as those terms are described below. A2083 .8o8 E . Mayer and the .Agen-.y are parties to that: certain Third Amended and Restrif-ed 1,ease dated April 26 , 1989 (the "TIArd Amended Leans") c:ett•ing forth thG terms of Mayer 's lease of a portion of the Sits i:rom the Agency. F . Wate.-front: and the Agency are parties to that certain L%,?.ase dated as of April. 28 , 1989 (the "Pahase I Lease") , providing for. Waterfront ' s lease of Phase 1 . waterfront has completed the construction of a 293-room hotel on Phase 1 , and they hotel is currently operated by a majority-owned entity of Robert L. Mayer. The Third Amended Lease and tho Ph&se 1 Lr&se superseded thn, Srcon Amended Lce.se . G. Paragraph 5 of Attachment No. 5 to the DDA (the Method of Financing) provides for the Agency ' s reimbursement to Mayer of certain casts totalling $5, 660, 368 as September 30, 19900 plus interest: thereon at a rate that has b, en eat at ter. percent (101) per anrum, compounded monthly (the "Phase 1 Paragraph 5 Cost©") , which costs were all of the costs advanced and incurred by Player and Waterfront in connection with the development. of Prase 1. On Jane 21., 1991, the Agency made a payment to Waterfront in the amount of Two Hundred Thirty-'three Thousand Eight Hundred Fifty Eight and 79/100 Dollars (4213 , 858 . 79) (the "First Payment") to be applied towards accrued interest on the Phase 1 Paragraph 5 Costs. Accordingly, all calculations made under this Agreement of the repayment of the Phase 1 Paragraph 5 costs shall take into account the amount of th3 First Payment. H . Paragraph 4 of Attachment No. 5 to tbol'- AbA provides for the Agency' s payment to Mayer, beginning epcn commencement of construction of Phase 2 of the Site, of certain transient occupancy taxes paid to the City or Agency and certain incremental property taxes paid and allocated to the Agency in connection with Phase 1 (the "Phase s Paragraph 4 Indebtedness") . As used herein, the terms "Phase 1 Paragraph 5 Costs" and "Phase 1 Paragraph 4 Indebtedness" shall. not include any costs that the Agency pays or reimburses to Developer pursuant tr. Paragraph 4 and Paragraph 5, respectively, of the flocthod of Financing, as the came now exists or may be amend, i hereafter, with respect: to any other parcel within the Site other than Phase I. The Phase 1 Paragraph 4 indebtedneos which the Agency may become obligated to pay pursuant to the DDA, and the Phase 1 Paragraph 5 Costs, shall. rt times be referred to herein as the "Payment Rights . " I. Mayer and the .Agency are parties to that certain First Amendment to Disposition and development Agreement dated June 17, 1991 , amending the commencement date of the Agency's payment of the Phase 1 Paragraph 5 Costs . A24$3 . 5d8 f.1w ovum J' J . Wettex-1--runt has represented to. the Agency that the proc:eedt; re;eived by iantarfron: from Firot California, under tha Assignment will be erponded by Waterfront solely for purposes relnter' to the development of the Site . X. Waterfront, Mayer and First California wish to enter into &n e.nitignment: ag-reement (the "Assignment Agreament") pursuan4 to which Mayer acid 'eir.terfrant will tnciPe an absolute assignment ("the Aasigainent" ) to First California of the right to receive all payments from the Agency of the Phase l Paragraph 4 Indebtedness and the Phase 1 Paragraph 5 Costae r.ub;j ect 'Lo certain xepurchaaia rights and reassignment provisions and obl,igatiuns that are set forth in the Assignment Agreement, and the Agency wisben to consent to the Assignment under the terms set forth herein. CONSENT NOW, THEREFORE ; in consideration of the mutual covenants and acknowledgements set fortn herA.in and in order to cooperate and assist Mayer and WaterL ont in meeting their private financing obligations with respect to this development of the site as provided in the DDA, Mayer,, the Agency, First California and Waterfront agree as foliowe : 1 . The Agency consents to the Assignment and hereafter agrees to mace, when due, all payments of the Payment Rights Wider the Assignment to First California, or; at First California ".; election, to the trust (the "Trusty") established pursuant to the Trust Agreement described belovr, as provided under the DDA. The Agency acknowledges the terms of Paragraph 3 of th53 Consent and agrees that it shall neither suspend, post.pono, modify or alter the payment of, nor claim any credits or offsets against, the Phase 1 Paragraph 4 Indebtedness or the Phase t Paragraph 5 Casts for any reason whatsoever, including w{thout limitation a default by Layer under the DDA or a default by Waterfront under the Phase 1 be;�ap, mnti.l such time, if any, as either Waterfront reacquires the right to receive the then- remaining balance of the Phase 1 Paragraph 4 tndebtedneas and the Phase 1 Paragraph 5 Costs , or the balance of such rights are otherwise reassigned to Waterfront, as provided in the Assignment Agreement. 2 . The Agency, Waterfront and Mayer_ acknowledge that the total Phase 1 Paragraph 5 Casts payable in connection with the development of Phase 11 including accrued interest, is $5, 660, 368 and that such sum shall accrue Literest after September 30, 1990 at the rate of Teri percent ( 10%) per annum, compounded monthly, until paid in full and that on June 21, 1991 , the Agency grade a payment to Waterfront in the amount of Two Hundred Thirty Three Thousand Figh� Hundred Fifty Eight and 79/100 Dollars A2083 . 508 3 w.IN 11 i to IJO nyp:l.ied towards aceruod intezvt-ot on the Phase 1 Paragraph 5 Cost.n , *'u other l:ay rents of tho Pliant, 7. Paragraph 5 clokits ::avfa I•ean made prior to tho elate of this Cerjoent . 11 Mayer and Winter. front- hereby waive ar,y and all offset r'ighty ` inclU ing witho-at liritation al?. offset right: set forth in the DDA dnd the Phase I Lease, that c:omId be cl%imed by Vayer or Waterfront in thp event of a default by the Agency in the Agency ' s obligatic'n to pay the Phasa 1 Parp.grnplh 4 Indebtedness or the ki:ase 1 .Paragraph 5 Costs when due . such laze fiver shall be effective until such time, if any, its either_ Wateri ront reacyui.rn© the right. to roceiva the then-remaining balance of the Phase 1 Para lraph 4 l,idebtedness dnd tho Phase 1 Paragraph 5 Coster or the balance of such rights are otherwiae reassigned to Waterfront . as provided in the Assignment Agreement , 4 . Mayer, Waterfront and the Agency hereby acknowledge and agree that. (a) all ronditin:ia to the Agency' s obligation to commence the payment of ::he Phase 1 paragraph 5 Coats have been entisfied, (b) t..a repayment obligations set forth in Paragraph 4 and 5 of Attachment No . 5 to the DDA remain in full force and effect , exto except as modified pursuant to the First Amendment to f Disposition and Development Agreement dated as of June 17 , 1991, I and theSecond Amendment'; to Disposition and Development Agreement dated as of August 1 , 1991, the DDA has not been modified or amended, and (a) the Agency, Waterfront and :Mayer shall not enter into any further anondment or modification of the DDA that would alt•3r, modify, subordinate. suspend or postpone in any way the payment by the Mgeucy of the phase 1 paragraph 4 indebtedness of Phase 1 Paragraph 5 Costa when due without First California 's prior written consent, which consent may bd grartF � ..r withheld by First California in First California ' s sole ano -..,.:solute discretion, provided that this Paragraph (4) (c) shall not limit this right of the Agency, Naterfron:. and Mayer to amend the DDA without First California ' s consent upon either th* reeGBignment of the entire outstanding balance of the Phase 1 Paragraph 5 Costs and the Phar:e 1 Paragraph 4 Indebtedness tc Waterfront or Mayer, or upon the Agency 's payment in full , including accrued interest through the dates of such payment, of the Phase 1 Paragraph 5 Costs . 5 . Mayer, the Agency and Waterfront hereby agra' . aid acknowledge that the Assignment shall consist solely o*,= the right to receive payment of the Phase 3 Paragraph 4 Indebted3. _ja which may tecome payable by the Agency under the DDA and thr: h,3e 1 Paragraph 5 Costs , plus interest, and the right to receive the information described in paragraph 7 below. First California has not arssumeu, nor is it intended that i1rat California assures, any payment or performance obligations of Mayer or Waterfront whateoe�jr, includingj without limitation any obligations of Mayer under the DDA or of waterfront under the Phase 1 Lease. A2083 . 508 4 9 6 . Mayer, the .Agency and Water. front hereby agree rend ac).nowledgm that First California shall have the obligati.on, upon the I.dsuance of the Certificates heretnafter described, to nssign the Payment Righto to First Tract, N. A. , or ouch other, compart,ble institution trustee or ouch other ausigneo meeting the requirements set; forth in Fckragrnph 8 , 9 , and 15 of the Assignment, as truGtea for the, trust (the "Trust" ; that a►:a.11 issue $6 . 1 Mill{.on in Certificaten of Participatiall evidencing proportionate interests in the Payrment flights. Such permitted assignment nay include, without limitation an assignment under whj h First California would rer,�orve the right to act on bollalf of First California ' s assignee with respect to the approval of any amendments to the DDA that are proposed pursuant to Paragraph 4 hereof. In th© event of cucrh an assignment, the Trustee, on behalf of the holders of the Certificates, shall have all of the rights of First California as stated in this Consent , and the Agency shall thereafter hake all payments of the Phase 1 Paragraph 4 Indebtedness and the Phase 1 Paragraph 5 Costs , plug interest thereon, directly to the Trustee at the address provided to the Agency by the Trustee . If for any reason First California does not make such an assignment to the '.Crust prior to October 1, 1991, but only in such event, this Consent shall expire and no longer be of any force or effect. 7 . The Agency hereby agrees to previde to First California, with copies to Waterfront, all accountings, statements and certifications required of the Agency under vhe DDA with respect to the receipt of transient occupancy taxes and property tax increments in connection with Phase 1, and agrees further that )First California shall have all audit rights granted to Mayer under the DDA with respect to the payment of th,. phase 1 Paragraph 4 Indebtedness and the Phase 1 Paragraph 5 Costs . Waterfront agrees to provide Agency with all accountings, statements And certificates relz, tizig to or forming the basis of Waterfront ' s collection ok transient occupancy taxes on Phase 1., B . The Assignment is intended to be absolute and not an assignment for security,. 9 . If any action or proceeding should be brought to enforce the terms of this Consent, the prevailing party in such action or proceeding shall be entitled to recover its costa and fees , including attorneys ' fees, €rom the opposing party in such proceeding. 10. This Consent shall be enforced under and construed in accordance with the la-we of the State of California . 11. Amendments to this Consent: shall be effective only if in a writing signed by the parties hereto. A7083. 308 5 s 1 1 12 . F'iret California, wtAt:erfront and kinyer, jointly and � severally. agree to ine.zn7nify, dofend and hold harmless the Agency and the City of Huntington Beach (the "City") and any members, officer, official, employce or agent of the Agency and " the City against any and al—1 losses, cl aimig , damages, liabilities y or exper:see to which any such indemnified Marty may become subject under any statue or at law or in equity or otherwise, and will reimk.-urse any a,.ch inclemnif.ied party for any legal or other expazissu incurred Ivy it in co,anecticn with investigating any clain s against :it :end defending any actions , insjofmr. are such losses, claims , .1amages, liabiIitl.ee cr actions; arise out of or are based upon l) nn allegation or determination of noncompliance ky any party with fed•aral. securities lawn or the seuurftiest lawn r-f any state in connection with the issuance, sale or delive;:y of the $6 , 100, 000 Certificatc5a of Parti►cinetion. evide-ncing proportionate interests of the owners thereof in certain paymen�:s to bLi made by the Redevelopment Agency of the City of Huntington Beach (the "Certificates") , or (2 ) any allegation or determination that: any amount paid in respect of the certificates or the Payment Rights are not excludable from gross income of any holder or any recipient thereof tinder_ thq laws of tho United StNtas or of any state or that the Certificates should have been registered under the Securities Act of 1933 or that they Trust Agreement by and between First California And F..rst Trust , N.A. , as Trustee (the "Trust Agreement" ) should have boon qualified under the Trust Indenture Act of 1939 , or (3 ) any allegation or determination that thorn occurred any untrue statement o•7 alleged untrue statement of a material fact in the Preliminary Limited offering Memorandum or Limited offering Memorandum prepared in connection with the sale of the Certificates or the omission or alleged omission in the Preliminary Limited Offering Memorandum or Limited offering Memorandum of a material fact necessary to make riot misleading statements in the Preliminary Limited offering Memorandum or the Limited offering Memorandum (except fo.r information set forth in Appendix C or the financial statements .of the: Agency as net forth as Appendix a thereof) relating to the Certificates, or .;, any other material or information offered or made available to any purchaser of the Certificates . The Agenoyy and the City snake no representation that any information silppliad by them to any other party to the transactions described herein is relevant for disclosure or •ass for any purpose , 13 . The parties acknowledge that neither the City nor the Agency has made any representation regarding the exclusion from gross income for federal or state income taxation purposes of any amounts received in respect of the Payment tights or the Certificates. The parties acknowledge that neither the City nor the Agency has made an representation regarding compliance with federal or state securities laws in connection with the offering of the certificates or otherwise in connection with the transactions described in the Trust Agreement and bbA. The A3083 . 508 6 0 partie u agree that any future diotributions or reonleas of the Certificates by First California c. by any Antit)r under First Ca'1'or.•nia a a control shall be made only in complianoe with the fedexit secur. i.tAas laws and the anc;iirities laws of any appl ic?i ale estate. 14 . Water rant hereby repre ments to the Agency that the proceeds received by Waterfront from First :. a].'.fornia under the Aiwsignkaent shall be expended by Waterfront salelY for piirpose.s relatadl to the development of the Site, including without limitation that funding of an iapproximat.ealy $3 . 5 inillion interest reserve regiiired by "ai- lchi Kangyo Bnnk, 'the lender Zar Phan': 1 . IN WITNESS WHLREOF, the under:signed have entered into thin Consent an of they date firat: above written. ROBERT L. MAYER, Trutitee of THE ROBERT MASER TRUST OT 1982 , Dated June 22, 3.9820 as amended By itobert N-nyar F.�R^T CALIFORNIA CAPITAL MARKET& GROUP, 1NC. , a Callfurni& corporation A,��---* zz rch J Ze9l6k. Controller WATERFRONT CONSTRU- ,TION NO. 11 at California limited p.^.rtnership By: The Waterfront Inc. , a California corporation , general partner o Ar ayer rma�n vl,BYa �✓� Step n K► Bonc, Pre�T1t F.EDEVELOP14ENT AGENCY OF THE CITY HUNTINGTON BEACH By: Chairmaann ATTEST: A2083 . 508 7 Orw+ i • ATTEST: Agen y arc%aoest+ - r' I AP ROVXD Af.; 1'���F- s: �.NPP E R 0 ONTENT A ei cy Spec C� .� 9 y `,. REVIEWED AND APPROVED AS TO FORM: CIEAttorney/Agency Ad ti�z s� r$tor/Ex�cut vg Attorney .Director A2O83 . 508 e .ti • M 00 1 C 1 i+ ESTOPPEL CERTIFICATE, (riateerfrant Phase 1 Loccue) This Estoppel Certificate is made as of this 1st _ day of August, 1991, by ROBERT L. MAYER, as Trustee of the Robert L. Mayer Truf;� of 1902 , dated Julia 22 , 19G2 , as e-marsded ("Mayer" ) , and WATERFRONT CCNSTRUC"ION NO . 1, a California limited partnership i "Waterfront") , in favor of the REDEYE-- L01.!!M NT AGENCY 01F THE CITY OF HU1111INGTON BEACHr a pub-1 x". agency ( "Agency" ) . R E C I T A L 8 : A. On or about August 15, 196e, the Agency and Mayer entered into a Dispasiltion and Development Arree:nent (the. "Original DDA") . On or about Jtine 17 , 1991, the Agency and tdaycr entered into a First. Amendment to Dispcsition and Development Agreement (the "First Amendment") .. and on or about August 1 . 1991, the Agency, Mayer, and Waterfront entered i.ito a Second Amendment to Di:pc_j�,ition and Develop- ment Agreement (the "Second Amendment") . The Original DDA, the Vir3t Amendment , raid the Second Amendment a:.•e collec- tively referred tD heroic, as the "DDA. " S. On or about April 10, 1989 , Mayer, Waterfront, and certain affiliated entities entered into an Assignment and Assumption Agreement pursuant to w:iich Mayer assigned to Waterfront and Waterfront assumed (through a series of assignments to the affiliated entities) all of Mayer' s right, title, and interest in and to that portion of the "Site" described i.n the DDA as "Separate Development Parcel No . :." or ''Phase 1" (hereinafter "Phase 111) . C. On or about April 28 , 1989, the Agency and Water- front antered into a lease (the "Phase 1 Lease") pursuant to which the Agency leased Phase 1 to Waterfront . D. On or about August 1, 1991 , Mayer, Waterfront. and First California Capital Markets Group, Inc. ("First califor- ni.a") , ontered into an Asat-Inment Agreement pursuant to which Mayer and Waterfront agreed to assign to First California certain payment rights (the "Payment Rights" ) owing by Agency under Paragraphs 4 and 5 of AttachmerLt No. 5 (the "Method cif Financing") to the DDA, all as more particul xrly set forth therein. On or about August 1, 1991, the Agency, Mayer, Waterfront, and First California entered into a Consent to Assignment pursuant to which tha Agency consented to assign- ment of the Payment Rights to First Californian under the Aesignmen* Agreement, as more par,;icularly set forth in 'the Consent to Assignment. E. Pursuant to Paragraph 11 of the Second Amendment, Mayer and Waterfront are required; as a conditJ.on to the i` t close of escrot► referenced in Paraqraph a of the Assignment Agreement ( i . e . , on -the "Purchase Date" ) , to execute an estoppel cartifi ::ate in favor of the Agency setting forth the stipulations and agreements refer*nce,d herein. This Estoppel rert.ific ate in intended to satisfy the requirements of Farag ;aph 11 or the Secon.' Amendment. 0 T I P U L A T 1 0 N A N D A 0 R E E M 2 N T: Based upon the foregoing Recitals , and in consideration of the Agcncy°s approval and execution of the Second Amen!- rent And the Consent to ?.r ignmf_,nt, Mayer and Waterfront hereby otipulnuex and agree a y follows : 1 . As of the Purchase Date referenced in Paragraph 4 of the Assignment Agreement, the Agency i3 not in default of ar.;► of its rbl igaations with respect to Phase I under either the DDA or the Phase 1 Lease and no circumstances exist which , With the passage of ti-me or the giving of notice, would result in such a default . 2 . This Agreement shall inure to the benefit of the hgancy and Vt n successors and assigns and shall be binding upon Mayer and Waterfront and their successors and assigns. ROBERT. L. V.AYER, an ` tiistee of the ROBERT L. MAYER TRUST OF 1982 , dated June 22 , 1982 , as amended By: h i AbbERT L,. MAY R WATERFI'ONi CONSTRUCTION NO. 1, a California limited partner- ship By : The Waterfront, Inc. , a California corporation, General.. Partner BY: ,40 r Robert L. Mayer Chairman cf the Board and thief Fina ;.al 0 er By: Stephen-K. Bone President -2- 9/112/065580-0001/ 15? ASSIGNMENT AGREEMERT This Assigiim;:nt Agreement ("Agreement") is entered into ba of the 1st day of AugueZ;, 1991 , between Robert L. Mayer, Trustee of the Robert L. Ma-.:,or Trust of 1982 , dated June 22 , IS192 # as amended ("Maysr") , Waterfront Ccnatruction No. 1, a California limited partnership ( "Waterfront" ) , First California Capital Markets Group, Inc. " "First California" ) end, with respect to Paragraph 6 (e) heroof, Robert L. Nayer, individually, with reference to the following : R E C Y T A I, C A. Mayer and the Redevelopment Agency of the City of Huntington Beach, California (the "agency") are ;parties to that certain Disposition and development. Agreement dated August 15, 1988 (the "DDT►") , providing for the development of cartaiii steal property (the "Site") located within the city - of Huntington Beach, Calitok.nia, B. Mayer and the City of Huntington. Beach , California (the "City") are parties to that certain Development Agreement dated August 15, 1988 (th•r "Development Agreement" ) concerning the development of the Site. C. Mayer and the city were parties to ' that certain Second Amended and Restated Lease dated August 15 , 1988 (the "Site . Lease") setting forth tha terms of Mayer' s lease of a portion of the Site frorc the City . D. Pursuant to the Assignment and Assumption Agreement executed on Apw it 10, 1989 between Mayer, Waterfront, waterfront Partners , a California General Partnership , and a 'tonancy in common comprised of Mayer, Stephen Bone and Patricia Bone (the "Tenancy in Common") , certain of Mayer' s rights under the DDr� , under the Development Agreement., under the second Amended Lease and in and - to certain permits and other development rights, were assigned by Mayer to Waterfront PartnerE , by Waterfront: Partners to the Tenancy in Common, and finally by the Tenancy in Common to Waterfront . Under the terms nf the Assignment and Assumption Agreement, Layer remains responsible to the Agency for performance of the obligations assumed by Waterfront therounder. The nights assigned to Wal-.erlrunt-, pursuant: to the Assignment and Ase!,aption Agreement are limited to that portion of the Site referr*4 to as Separate Development Parcel No. 1, and which shall be referred to in this Ag-eement. as "Phase 1. 11 and include an assignment of Mayer' s rigs k: to receive psymant of the Phase 1 Paragraph 4 Indebtednecs and the Phase 1 Paragraph 5 Costs. r . E. Mayer and. the Agency are parties to that certain Third Amended and Restated Leary dated April 28 , 1989 (the "Third Amended Lease") setting forth the tams of Mayor ' s lease of a portion of the Site from the Agency. I'. Waterfront and they Agency are parties to that certain Lease doted as of April 280 1989 (the "Phase 1 Lease") , providing for Waterfr_ ot 'a lease of Phase 1 . Waterfront has completed the construction of a 293•-room hotel on phase 1, and the hotel is currently operated by a majority-ownsd entity of Robert L. Haye►r. The Third Amended Leases and the phase 1 Lease esuperreded the Second Amended Lease . G . Paragraph a of Attachment No. 5 to the DDA (the Method of Financing) provides for the Alancy ' s reimbursement to Mayer of certain costs t:o::alling $5 , 660, 368 as of September 30, 1990, plus interest thereon at a rate that has been set at ten percent (104) per annum. compounded monthly (the "Phass 1 Paragraph 5 Costs" ) , which costs were all of the costs advanced and incurred by Mp!,�-:r and Waterfront in connection with the development of Pha:;.*4. 1.. on June 21 , 10910 the Agency made a payment to Wataxfrcnt in the amount of Two Hundred Thirty-Three Thousand Eight Bundy rid Fifty Eight and 79/100 Dollars ($233, 858 . 79) (the "First Payment") to be applied towards accrued interest on the Phase. 1. Paragraph S Costs . Accordingly, all calculations made under this Agreement of the repayment of the Phase 1 Paragrapn 5 costs shall take into account the amount of the First Payment . H . Paragraph 4 of Attachment No . 5 to the DDA provides for the Agency ' a payment to Mayer of certa i n transient occupancy taxes paid to the City or Agency and certain incremental property taxes paid and allocated to the Agency in connection with phase 1 upon the commencement of Phase 2 of the Proj3ct (as defined in the DDA) (thy: "Phase 1 paragraph 4 Indebtedness") . As used herein , the terms "Phase 1 Paragraph 5 Costs" and " Phase 1 Paragraph 4 Indebtedness" shall not include any costs that the Agency pays or reimburses to Developer pursuant to Paragraph 4 and paragraph 5, respectively, of the Method of Financing, as the same now exists or may be amended hereafter, with respect to any other parcel within the Site other than Phase 1. I . Meyer and the Agency are parties to that certain First Amendment to disposition and Development Agreement darted Juno 17 , 1991, amending the commencement date of this Agency' s payment of the Phase 1 Paragraph 5 Costs. J. First California winhes to acquire from Waterfront and Waterfront wishes to make an absolute assignment ("the Assignment") to First California of the right to receive all payments made by the Agency of the phase 1 Paragraph 4 Indebtedness and the Phase 1 Paragraph 5 Costs, under the terms H949-505 2 1 Y I, 1y set forth heroin. Mayer wisheo to consent and become a party to the Assignment. 8111 9PHENT NOW, THEREraRE, in consideration of the mutual covenants) set forth herein, and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, Mayelr, Waterfront and First California agree as follows: 1 . As�nment . First California agrees to acquire from Waterfront and Waterfront agrees ::o assign to Tiret Ca,lifurnia (or to any permitted assignee) , the right to receive all payments by the Agency of the Phase 1 Paragraph 4 Indebtedness and the Phase I paragraph 5 Costs, plus interest thereon, (collectively referred to herein as the "Payment Rights" ) , ':ibject only to Waterfront ' s repurchase rights and the reaseignment provisions and obligations oet forth in Paragraphs a and 9 hereof, 2 . �.31-rchaso Aga. The purchase price paid by First. Caliturnie to Waterfront, for the Payment Rights (tho "Purchase Price" ) shall he the sum stated in that certain Purchsse Price Memorandum between Waterfront and First California of even date herewith . The Purchase Price shall be paid by First California to Waterfront: on the Purchase Data in the form of wire trans_er, cashier' s check, or other readily r.vailable funds! , are reasonably deter:minea by First California. 3 . The Fu_rc?*4gse Date. The Payment Rights shall be assigned to First California on the date (the "Purchase Date") selected by First California that i3 between thirty (30) and thirty-five (35) days after the date of First California' s written notice to Waterfront that First California has approved its review of the Payment Rights , as such notice is described in Paragraph 10 below. 4 . Escrow . At least: ten (20) clays prior to the Purchase date, First California and Waterfront shall open an escrow with a title company, bank or other independent, insured, financially-sound escrow company solected by rirst California, for the purpose of facilitatingq the closing of the Assignment. No late: than five (5) days pricr to the Purchase Data, First: California and Waterfront shall execute and deliver to the escrow holder joint escrow instructions consistent with this Agreement . In the event that First California and Waterfront are unable to agree upon they terms of such joint instructions, this Paragraph 4 ifornia and Waterfront. The parties agree and acknowledge that separate *scrow instructions relating to the Agency shall ba executed prior to the Closing Gate. The escrow holder shall be instructed B949-505 3 I i 4 a. as follows: !a) on or before the Purchase Date, first California shall deposit into the escrow funds in the form and in the amount described in paragraph 2 ,of this Agreement. (b) an or before the Purchase Data, Firs; California and Waterfront shall each execute this Agreement and deposit two (2 ) fully executed originals of this Agreezont into the escrow. (c) can or before the Purchase Date, First California, waterfront and Mayer shall executer, and Waterfront shall exercise its beet efforts to have the Agency execute, four (4) originals of the Consent to Assignment in the form attached hereto as Exhibit A, which originals shall be deposited into tho escrow prior to the Purchase gate. (d) on or be-fore the hurchase Date, Waterfront shall deposit into the escrow, in a fora acceptable to F'i.rst californie , executed originals of ( i) any reconveyances, terminations or any other releases reasonably required by First California in order to satisfy the conditions to the Assignment, (ii) any acknowledgements or certifications required to confirm the representations and warranties set forth in Paragraph 5 (s) of this Agreement, and ( iii) any notices or memoranda of the Assignment as may be required by First California . (e) an or before the Purchase Date, :laterfront shall deposit into the escrow, in a form acceptable t c the Agen::y, two original , executed trust deals encumbering Hayer ' s leasehold interest in the Site excluding Phase 1 , the first of which shall secure an indebtedness of $3 Million and shall be subject only to a prior leasehold deed of trust in the amount of $2 , 154 , 000 . 00 and the second of which shall secure an indebtedness of $7 Million, and shall be subject only to three prior leasehold deeds of trust in a total amount of $101150 $ 000. 00. ( f) The costs of the escrow shall be shared equally by Waterfront and First California, and each party shall deposit into escrow readily available fu%ids in they amount of each party' s Hhare of such costs prior to the Purchase Date. (g) on the Purchase Data, provided that the documents and tunds described in Paragraphs sl (a) -(e) above have been deposited into escrow, the escrow holder shall be instzucted to release to Lai =cni Kangyo Bank: Ltd . the sun of $3 , 500,000, to release to Waterfront funds in the amount of the balance of the Purchase price less expenses and other closing coats to be paid by Waterfront hereauMer, deliver one executed original of the Consent to Assignment to Mayer, First California, Waterfront and 3949-505 4 l ~ the Agency , release an executed original of the Assignment Agreement to Mayer, Waterfront and First California, record and/or file, as appropriate, any releases, terminations or reeconvoyances required by First California and record and/or file, as appropriate, any notices or memoranda of the Assignmant as may be rewired by First California. (h) If either party shall fail to make the deposits into escrow as surd when required harein, in addition to any other rights and remedies ttlat may be available to the other party, to this Agreement, such other, party may elect to terminate the escrow upon notice to the escrow holder, in which case all funds a vd documents shall immediately be returned to the party that had originally deposited such funds and documents into the escrow and the escrow shall thereafter terminate. 5. UrtherggumaDta ign. Mayer, Waterfront and First California ahaell enter into any further documentation reaasontbly required to affect: the Assignment. Any such additional documentation shall be in a farm and substance reasonably satisfactory to First California, Waterfront and Mayer and shall otherwise be an terms consistent with this Agreement„ 6 . Reprgsgntations . Mayen and Waterfront hereby make the following representations and warranties to First California, which, subject to the Agency 's making the agrarment set fortis in Paragraph 11 (d) below and furehear subject to Ma.yex ' s and Waterfront obtaining a reconvevance of the security interest or, other lien previously granted to Lai Ichi. Kangyo Bank Ltd. , shall be effective commencing on the Purchase Date and shall continue in effect for as long an First Califcrria or any assignee of or successor to First California retainL any interest in the Payment Rights: _ (a) The Assignment a.-%d Assumption Agreement has been delivered to and ,accepted by t:se Agency, and Waterfront holds all right, title and interest in and to the Payment: Rights free of any and all encumbrances, claims, liens, demands, actions , or security or other interests, including without limitation any security interest or other lien granted to Dai ICU Xangyo Rank Ltd. (b) The rights of First California in the Payment bights are and shall be superior and prior to the rights of any and all third parties in the Payment Rights , regardless of whether any competing interests are created, or are alleged to have bean created, voluntarily or involuntarily. (c) Mayer, Waterfront and Robert L. Mayer hereby indemnify and hold First California harmless from and against any, and all claims, judgments, demands or actions of any party claiming rights or interests in the Payment Rights or which seek R94��5C� 5 c , �r 1 to invalidate, alter , subordinate or modify the Assignment, the amount of the Payment Rights or the terms upon which the Payment Rights are paid to First California or its assignee, rogardless of whether any such claims, demands or Actions exist as of the Purchase aawte or arise or are asserted thereafter. (d) Mayor and Waterfront have performed and shall perform any and all obligations and conditions precedent to the obligation of the Agency to commence the payment of the Phase 1 Paragraph 8 Costs, and shall use reasonable diligence, subject to prudent business practical prevailing market conditions , availability of finar inq and events of force majeure, to satiety all conditions to that Agency' s obligations to commence and to continue the payment of the Phasu 1 paragraph 4 Indebtedness. (e) Waterfront is a duly and validly organized litaited partnership in good standing undar the laws of the State of California . The execution and delivery by Waterfront of thim Assignment, the Purchase Price Memorandum of even date herewith and the Consent to Assignment of even date herewith, and the compliance by Waterfront with the terms and conditions of this Assignment`., have been dulyy and validly authorized ly all necessary partnership act:ion . Neither the execution and delivery by Waterfront of the foregoing agreementst the consummation of the transactions contemplated thereunder nor compliance W.th the terms and conditions thereof, will conflict with or result in a breach or default under any indenture, mortgage , , lease, deed of trust, pledge , bank Loan or credit agreement, or any other agreement or Instrument to which Waterfront is now a party, or any judgment: , order, writ, injunction, decree or demand of any court:, arbitrator or governmental agency, or result in the i=eaticn or imposition of any lien, charge or encumbranca of any Mature whatsoever upon the property or assets of Waterfront. Waterfront is not in default its the performance , observance or 1=ulfillme.nt of any of the termer, obligations , covenants, conditions or provisions contained in any indenture or other agreement creating, evidencing or securing an indebtedness of Waterfront . (t) As trustee, Robert L. Mayer has full and complete power and authorlty to enter into this Agreement on behalf of The Robert L. Mayer Trust of 1982 , bated June 22 , 1982, as amended, and Mayer has full power and authority to enter into this Agreement; and discharge its obligations hereunder. 7. H imbgrs2Ment of -1ees . Waterfront Agrees to reimburse First California for one-half (1/:) of the legal lees incurred by t irst California in Zonnection with the assignment of the Payment Rights to First California and the documentation of such assignment:, but in no event shall Water.front 13 share of ouch fees exceed $2o , 000.00 . 1a949-5US 8 . 82RUCh RS Right-. First California hereby grants to waterfront the right to repurchase the then-remaining balance of the Payment Rights as of the Repurchase Date, on the terms and conditions described in this Paragraph S . (see.) The date (the "Repurchase data") upon which Waterfront shall be entitled to reacquire (the "Repurchase") the then-remaining balance of the Payment Rights shall be a date selected by Waterfront in a written notices given to First California. The Repurchase Date vel enteesd by Waterfront, in case of a Repurchase made in connection with the issuance by the Agency of bonds , notes or any other. evidence of indebtedness to be issued and sold by the Agency in order to finance or refinance any of the Agency ' s obligations under the DDA (collectively, the "Agency Hondas") , shall be no less than thirty-five (3 5) nor more than one hundred eighty (180) days after the date of such notice, and in the case of any other repurchase shall be no less than thirty-five (35) nor more then forty-five (45) days after the date of such notice, but in no event shall such notice ,31-3escify a date that is earlier than the first to occur of the following: ( i) two (:) years after the date of this Agreement, or (ii) thirty (30) clays prior to the first issuance hv the Agency of Agency Bonds . (b) The purchase price (the "Repurchase Price") payable by Waterfront Zor the balance of the Payment Rights remaining on the Repurchase Date shall be calculated as (i) the amount of the Phase 1 Paragraph 5 Costs plus accrued interest as of June 30 , 1991, minus ( ii) the total payments of the Payment Rights-r .including ,payments of the Phase 1 Paragraph 4 Indebtedness, if any, the Phase 1 Paragraph 5 Costs and interest on they Phases 1 Paragraph 5 Costs, made by the Agency and received by Fi,%st Calif.�rriia or .its assignee during the per ad (the "Calculation Period" ) that commences on 3'una 30; 1990 and ends on the Repurchase Gate , plus (iii) all interest accruing on the unpaid balance of the Phase 1 Paragraph 5 Costs during the Calculation Period, regardless of whether such accrued interest has been paid during the calculation Period. The amount of the First Payment shall be: considered in determining the amount of the Phase Paragraph 5 frosts as of. June 30 , 2990 pursuant to subparagraph. S (b) (i) above, but shall not be considered in determining the payments :wade by the Agency during the Calculation Period puresuetnt to subparagraph 8 (b) (ii) ab(-veee . By way of illustration only, assuming that the phase 1 Paragraph 5 Costs# plug accrued interest, equals Six. Million Dollars ($6, OOO, 000) an June 30, 19a0, if the Agency makes total payments of the Payment Rights (including both the Phase 1 paragraph 4 Ir debteedness, the Phase 1 Paragraph 5 Coasts and interest on the Phase i Paragraph 5 Costs) to first California or its assignee during the Calculation Period of one Million Dollars ( $1, 000, 000) and assuming interest totalling Six Hundred Thousand Dollars 16001000) accrues on the outstanding balance of the Phase 1 B949-505 7 r i 1 . Paragraph 5 Costa during the Calculation Feriod, the Repurchase Price would be Five Million six Hundred Thousand Dollars ($0, d00 , 000) , calculated as $6, 000,000 minus $1, 000, 000 plus $600# 000 . Waterfront and First California hereby agree and acknowledge that, for purposes of calculating the Repurchase Pricer, the amount of any payments of the Phase 1 Paragraph 4 Indebtedness received by First California or its assignee 0hall pq; reduce, the balance of the Phase 1 Paragraph 5 Costs for purposes of calculating interest accruals or the outstanding balance of the Phase 1. Paragraph 5 Costs, which interest shall accrue air calculated by the Agency under the DDA at the rate of Teen Percent (1,13) per annum, compounded monthly, but all payments of the phase 1 Paragraph 4 Yndebtedness received by First California or its assignee per, be considered, as set forth in Paragraph 9 (b) (ii) above, without interest, in calculating the . Repurchase Price. ;c) Notwithstanding anything in this Paragraph & to the contrary, if at any time (true "Calculation Date") after the date of this Agreement., First California or its assignee shall have received total payments of the Payment frights In a total amount equal to the amount of the Phase 1 Paragraph 5 Cor..it,a plus interest on the outstanding balance of the Phase 1 Paratirn ,h 5 Costs at the rate of men Percent (10* ) per annum, compounds. monthly, from September 30 , 1990 through the Calculation D4.te, the then-remaining balance of the Payment Rights shall bo immediately reassigned to Waterfront. Such reassignment shall occur automatically on the Calculation Date without the necessity of any further action, authorization or approvals of Firsts California or its assignee, and without the payment by Waterfront of any additional consideration thereforO (d) Waterfront' s repurchase of the remaining balance of the Payment Rights as of the Repurchase Date shall have no effect whatsoever upon any payments of the Payment Rights made to First Californian or First California i s assignee prior to the Repurchase Dat:et , (e) First California and its assignee agree to hold in trust and to inmradiatrely turn over to Waterfront any payments of the Payment Rights incorrectly made to First California or its assignee after either the Repurchase of the Payment Rights by Waterfront pursuant to this Paragra .h at or after the date upon which the reassignment described �n Paragraph B (C) above occurs . (f) At no time prior to the Repurchase Date shall First California or any subsequent assigneo enter into or consent to any amendment or modification of the DDA or any suspension, postponement, alteration, acceleration or cancellation of the Payment Rights without Waterfront' s prior written consent, which consent Waterfront may withhold in its anle and absolute B949-505 g j r. discretion. Any such amendment., modification, alteration, acceleration or cancellation without waterfront's prior written consent shall ki,, void and of no force or effact. Notwithstanding the foregoing, First California or any subsequent assigqnes may enter into or consent to any such amandwent, modification, alteration, acceleration or cancellation without Waterfront 's clonsent at einytime after the later to occur of (i) two years after the darts of this Agreement , and ( ii) the cessation of the payment of either transient occupancy taxes or incremental property takes upon which the Payment Righta are based For a contiguous period of ninety (90) days after. First California gives notice of such cessation to Waterfront, such ninetyy (910) day notice period shall be tolled curing any period of time during which Waterfront challenges or contests, in good faith, the amounts of transient occupancy taxes or incremental property taxes due , provided that Waterfront diligently prosecutes such contt,st: nr challenge or completion. This Paragraph 6 ( f) shall not be construed as modifying Waterfront ' s obligation to make payments of transient occupancy taxes or incremental property taxes under the DDA. 9. Reuut,g �_�acrrw. At least ten (10) days prior to the Repurchase pate, Waterfront aged First California shall open an escrow with a title company, bank or other independent, insured, financially-sound escrow company selected by Waterfront, for the purpose of facilitating ,`.he closing of the Repurchase . No 1'_ter than five (5) days prior to the Repurchase Date, Waterfront and First Californ.� P, shall execute and deliver to the escrow holds- Joint escrow instructions consistent with this Agreement. _..i than event: that Waterfront and First California are unable to agree to the terms of such joint instructions, this Pa:cagraeph 9 will constitute the joint escrow instructions of Waterfront and First California. The escrow holder shall be inotructed as follows : (a) Prior to the Repurchase Date,. Waterfront shall deposit into the escrow readily--avtailable funds in the amount of the Repurchase Price . (b) Prior to the Repurchase Date, First California shall deposit into the escrow, in a form reasonably acentable to Waterfront, any aseignments, reconveyances , term nations or any other releases that shall be reasonably re+quireO, to affect the reassignment to Waterfront. (c) The costa of the Repurchase Escrow shall be shared equally by First California and Waterfront, and readily available funds in the amount of each par;:y's share of such costs shall be deposited into the escrow prior to the Repurcbase Data. (d) At such time as the documents and funds described in Paragraphs 9 (a) - (c) above have been depoalted into 0949-505 9 • 1 escrow, the escrow holder shrill be instruc::ad to release the funds in the anount of the Repurchase pricy, to First California and release tits originals of the documentation required pursuant to Paragraph 9 (b) to the appropriate pextins. (s) if either party shall fail to make the deposits into escrow as and when required herein, in addition to any other rights and remedies that may be available to the other party to this Agreement, such other party may elect to terminate the escrow upon notice to the escrow holster, in which cease all funds and documents shall immediately be roturned to the party that had originally deposited the fonds and each of the documents into the escrow and the escrow shall thereafter terminate . (t) First California agree to enter into such , further documentation as reasonably required by the Agency in order for the Agency to recognize the reassignment of the then-remaining balance of the Payment Right3 to Waterfront. 10. Reye3w of PasvM91 ,t_Bi_ghU,. First California shall have thn right to conduct, in its stole and aboolute discretion and for its sole benefit, a due diligence review of the Payment Rights . Finest California' s review may includes, without limitation, the following: (a) Written verification from Mayor, Waterfront and the Agency of the amount and status of the Payment tights and the statue of t.ho development under the LIDA; (b) Confirmation from the Agency or its duly euthor.i teed agent that the Agency, will enter into the Consent to Assign lent; (c)' The Agency 's confirmation that the unpaid balance of the Phase 1 Paragraph 5 Costs shall accrue interest at the. rate of !Vert Percent (104) per annum, compounded monthly t (d) Confirmation that there will be no prior, competing interests in the • Payment Rights cn the Purchase Date; and (a) The marketability of the payment Rights by First California. No later than August 12 , 1991, First California shall notify Waterfront in writing oZ either First California's approval or disapproval, in its sole discretion, of its review of the Payment Rights, If First California disapproves, this Agreement shall terminate and neither party shall have any further obligations hereunder. If First California appruves, the Purchase date shall be established as between thirty (30) and thirty-five (35) days after; the date of First California 's notice, as described in B949- 505 10 ! ti. Paragraph 3 hereof, The failure of First California to give either notice of approval or disapproval on or before August 12 , 1991 shall be deemed a dis&pproval of First California ' s review of the payment Rlghts. 11 . ConditLgof to i9OM$Ljt. The following shall be conditions to First California 's obligation to comp%otea the Assignment on the Purchases Date % (a) Neither Mayer nor Waterfront sha,.11 be in breach of the representations and warranties set forth in Paragraph 6 hereof ; (b) Mayer, Waterf�:ont, and the Agency shall have signed and delivered the Consent to Assignment into escrow prior to the Purchase Date? (c) Neither Mayer nor Waterfront shall be in default under this Agreement or tha DD,A and Waterfront shall not be in default under the Phaso 1 Loaset and (d) The Agency ahall have agreed that the amount of the Phase 1 Paragraph 5 Cost!3 as of the Purchase Data shall be the sum of $5, 660, 368 plus fntor. est !:hereon at the rate of flan Percent (10%) per annum compounded monthly from September. 30, 1990 , and shall acknowledge the amount of ttsa First Payment . Upon the failure of any of the above-described c6nditions , as determined by First California in First California ' s sale discretion, First California, in addition to any other legal or equitable remedies that may be available, may elect to terminate this Agreement; provided, however, that in the evert that the Agency refuses to sign and deliver the Consent to A1,saignmeant referenced in Paragraph 11 (b) above or the Agency refuse: to make the agreement set forth. in Paragraph 11(d) above, First California' s ,sole remedy in either case shall be to terminate this Agreement prior to the Purchase gate , 12 . A-ti'-orDeyp" Fees . If any aotlon or proceeding shall be brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its attorneys , fees and costs from the other party. 13 . gveraLng Law, This Agreement shrill be governed by and construed in accordance with the law;. of the State of Califorria. 14 . Cg ,pat:Jgn. The parties hereto shall cooperate by executing any and all documents reasonably necessary to complete the .Assignment and providing such information and documesntat!+on reasonably required by the other party to this Agreement . 8949-"�05 ll i 19. Ly thgr bNNiaaag lt. First california may elect, In ito sole discretion, to further assign the right to receive the Payment fights to a trust, the trustee of which in First Trust, N.A. Gr another comparable institutional trustee (as reasonably determined by the Alency, First California and Waterfront) , solely for purposes of issuance of the $6 , 100, 000 Certificates of Participation evidr.neing interests of the holders thereof in the Payment Rights. in event of such an ass.ignment, First California ' s assignee shall have all of the rights and shall asst:me all of the obligations of First California hereunder, including the reassigntaant obligations set forth in Paragraph 9 hereof . This Agreement shall be binding upon and shall inure to the benefit of First California and Waterfront and their respective heirs, successor& istad assigns. upon the assignmant of the payment Rights by First California to an assignee of First California , such assignee shall have the right to reassign the Payment Rights, subject to paragraph 8 hereof, provided that such reassignment sheill nct take plaice earlier than two (2) years after the date of this Agreezen;:. 16 . tip IgI Any notices given hereunder shall be in writing, hand delivered or sent via overnight courier or U. B. mail , postage prepaid, addressed *,� follows: To Waterfront, Robert L. Mayer or Mayerr The Robert Mayer Corpora-;ion 660 Nmwpo'"t Center. Drive , Suite 1650 P. 4. Box 8680 Newport Beach, CA 92658-8680 To First California: First CalifQrnia Capital Markets Group, Inc . 50 Cal? +fornia Street, Suite 3200 San Fraiici.scz:, CA 94111 Attn: Vtiliti.e►a Department/Benjamin N. Levine With a copy to: First Cali,fornin Capital Markets Group, Inc. 200 oceangate, Suite 1500 hung Beach, Ch 90802 Such notices shall bra effective when received if nand doliveted, the day after shippAng if sent via overnight courser or three (3) days after mauling if sent by U.S . mail. Either party may ON.ange Its addresie fov notices by a written notice to the other party as provided herein . b949-905 12 y 17 . E nt-i r�' �►g� 5im_@. * • This Ag r s ci za i nt, together with the Purchase Price Memorandum the Cooaant to Assignment tn ! the exhiblIts and ■chadule-9 the►rst or embodies the aentive understandilli of the partiors a:elatwing to they ansignment t;y Hayer and Waterfront tL, riret California w? the Pe►yment lAighto, , 1s . 1V21k hg&jM,L_ Inch o.: tbit and rrcYaedule delivered pursuant to or referenced in Lhir4 Acrr-•- 'r5nt: oon!.t:j.tk t'r-, an ntngc :al part of , and is incorpox•dted intn, t;.: _s eligreement. 19 . JL(aud-jnajj _=nqUU.. The dHs-..vi.ptive headings of' the Paragraphs of this Ag:Qament are inserted for ccnvanier.�;c: only vnd coo not constitute r pant uf• tni8 AyrnAment:. . JI.:11 pror,ounn and any variations thereof sh-0.1 I-* df:ow; , d to rezfl r to the masculine, teminine, r,e:at►::c, singulw. ,t plural , an t:ho identity of the person or persons , firm rn., f irtw , corpar r:'w1.Ott or c:o::poraL-i.on,.� mcay require . dA . C0Urf;erpa-1,!- _ This may be exa,-Atted in once or more ca%irterparts , all of which 7--hall be con.hidesea cons dtid the sere agreement and shall become eff�%ct.iwa when One or more c ount'..r•parts have ;year., signed ::)y each of hfz parties h©retn an(A delivered to the otlint party he-4.e•o'L' . 2 1 . �vk:rabj. li l' i any �artic:lQ, sec�t:i.c�,, , !surser:ti.on or pr•ovlr 7.oi s of thl�i Agreement, or 1k.-he app i icatio-n of such section, subsection or provision is field i.nval,id, Che remainder of t ht.-, Acr,:r_ n rit and ti1q: appl.icatl.can o, such ectic)n, sub!..ec-t-ion or provisic r to 'person:; o; circumstances other than thoje to "hir:n 3.'.: in hel.r., inwalid -hall note be. c ff ec'•t ed thereby, 22 . Amendments.s. This grcv;T eat. may t..e v.,�and,,d cta?y in w.ri. -- Irtg, ,,i„gztec' by th►: part{es here-t�1, Ls . mime . lime% is cf t-he essence of this Lgre�ement. 2= , IZg_c t_4Is The .recitals zet forth above arA true and corr-edct and are incorporated into this Agro .,enr as though fully net forth herein. IN WITNESF1 WHEREOF, the undersigned have executed this Assignment ,Agre!nmen t of the date: first above writt on. FIRST CALUO NIA CAPITAL K"KETSl GROUP, INC. , a Caiifaw•nia corporation P11 BY; rel-�e Arc V 7•dl c c; ConrQ] er . a' �f T F� A RDpXRT to, MAYIk, Trustee of the SOBbRT L• MAYER TRUST O1r 19 S a , r Dated June 22, 1982, Ns amended i, By$ i aTATERrRONT 4:t1N9TRVCTxON NO. 1, a California 1iuited partnership Byt The Waterfront,, Inc. , a California corporaticin, General Partner .Ro art Li May , a. an r of The Hoard `�t 1 .1 By: - step n Ke Done, pros ant ROBERT L. MAYERyr L+ . 24