EXHIBIT 10.26
BARGAIN PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS BARGAIN PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (the
"Agreement"), dated as of February 14, 1997, is by and between SIGNAL BOLSA
CORPORATION, a California corporation ("Seller"), and STATE OF CALIFORNIA,
acting by and through the STATE LANDS COMMISSION in its capacity as "Land Bank
Trustee" under the ▇▇▇▇▇▇▇▇ Land Bank Act (California Public Resources Code
SectionSection 8600 et seq.) ("Buyer").
RECITALS
A. The addresses and telephone numbers of the parties to this Agreement are
as follows. Telephone numbers are included for information only:
SELLER: BUYER:
SIGNAL BOLSA CORPORATION STATE LANDS COMMISSION
c/▇ ▇▇▇▇ Real Estate Group, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇, and
SIGNAL BOLSA CORPORATION
c/▇ ▇▇▇▇ Real Estate Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B. Seller is the owner of approximately 880.21 acres of real property
located in Orange County, California, as shown as the "Bolsa Chica Lowlands" and
"Bolsa Chica Lowlands Pocket" on the site plan attached hereto as EXHIBIT A (the
"Site Plan") and described by a metes and bounds description set forth on
EXHIBIT B and incorporated herein by this reference (the "Lowland"), together
with any and all water rights and mineral rights associated therewith and owned
by Seller, and any and all rights appurtenant thereto (the "Subject Property").
Adjacent to the Lowland, there is an approximately 42-acre parcel of land which
is owned by The Fieldstone Company; Seller has no right or option to acquire
such Fieldstone property.
C. The Lowland presently consists of non-wetlands and wetlands of various
degrees of quality and quantity, including without limitation, degraded
wetlands, severely degraded wetlands, and uplands. The Lowland is subject to oil
and gas operations currently operated by CalResources LLC, a subsidiary of Shell
Oil Company.
D. Seller is also the owner of certain real property adjacent to the Subject
Property (the "Mesa Property") and real property known as the "▇▇▇▇▇▇▇ Thumb"
area which are generally identified on the Site Plan.
E. Seller has acquired from the MWD a 8.21 acre portion of MWD's Bolsa
Chica mesa and lowland property as generally shown on the Site Plan as the "MWD
Property." MWD has transferred to a third
1
party certain other lowlands generally shown on the Site Plan as the "MWD
Wetlands Property" to be transferred to a public agency.
F. Seller is currently seeking all federal, state, local and special
district approvals, entitlements and permits required for Seller: (1) to develop
the Lowland; (2) to develop the Mesa Property as provided for in the Local
Coastal Program approved by the County of Orange ("County") on December 14, 1994
and by the California Coastal Commission on January 11, 1996 ("LCP"), or as
otherwise approved by Seller (the "Mesa Development"); and (3) to implement a
wetland restoration program (clauses (1), (2) and (3) together, "the "Project"),
including without limitation, (i) those approvals, entitlements and permits as
more expressly set forth in the Bolsa Chica Development Agreement, County of
Orange, between Seller and the County, dated April 18, 1995, a copy of which has
been delivered to Buyer (the "Development Agreement"), (ii) those approvals,
entitlements and permits set forth in the LCP, and certified by the California
Coastal Commission ("Coastal Commission") on July 11, 1996 ("Certified 7/11/96
LCP"), (iii) a Section 404 Clean Water Act Permit and Section 10 Rivers and
Harbor Act Permit from the United States Army Corps of Engineers, (iv) United
States Fish and Wildlife Service ("USFWS") Endangered Species Act approvals, (v)
federal Coastal Zone Management Act approvals, (vi) California Department of
Fish and Game ("CDFG") or Fish and Game commission approvals required under the
California Endangered Species Act or otherwise, (vii) National Marine Fisheries
Service and/or USFWS Endangered Species Act approvals, as appropriate, (viii)
State Lands Commission approval of the tidal inlet, and (ix) approval of any
required CDFG stream bed alteration agreement and other permits to implement the
wetland restoration (together, the "Project Approvals").
G. An Agreement to Establish a Project for Wetlands Acquisition and
Restoration at the Bolsa Chica Lowlands in Orange County, California for the
Purpose Among Others; of Compensating for Marine Habitat Losses Incurred by Port
Development Landfills Within the Harbor Districts of the Cities of Los Angeles
and Long Beach, California, dated October 4, 1996, as amended, among the City of
Los Angeles, City of Long Beach, Resources Agency, California Department of Fish
and Game, California State Lands Commission, California Coastal Conservancy,
U.S. Army Corps of Engineers, National Marine Fisheries Service, NOAA, U.S. Fish
and Wildlife Service and Environmental Protection Agency (the "Mitigation Credit
Agreement") has been entered into providing for the Ports of Los Angeles and
Long Beach to receive appropriate mitigation credits as set forth in the
Mitigation Credit Agreement.
H. Buyer is a governmental entity having among its purposes the acquisition
on behalf of the public of open space, scenic and recreational lands. Buyer is
exempt from taxation as an "entity" covered in Section 170(c)(1) of the Internal
Revenue Code of 1986, as amended, and the applicable regulations promulgated
thereunder (the "Code"). Buyer intends to restore portions of the Subject
Property as wetlands and is acquiring the Subject Property as Public Trust land
for the benefit of the people of California to be held by the State of
California in perpetuity for purposes of ecological restoration, preservation,
education and observation, scientific study, open space, and fish and wildlife
habitat protection.
I. Seller intends to only sell the Subject Property to Buyer provided that
Seller is released by the County and the Coastal Commission of the restoration
obligations with respect to the wetlands located within the Lowland, which
obligations are set forth under the Development Agreement, the LCP and
applicable local, state and federal law ("Restoration Obligations").
J. Until Buyer acquires the Subject Property, Seller will be continuing to
pursue all Project Approvals and that the issuance of any such Project Approvals
should not be impaired or otherwise restricted by the provisions of this
Agreement.
K. Seller believes that the purchase price for the Subject Property which
is specified in this Agreement is below the fair market value of the Subject
Property. Seller intends that the difference between the purchase price and the
fair market value shall be a charitable contribution to Buyer. However, Buyer
makes no representation as to the tax consequences of the transaction
contemplated by this
2
Agreement. Seller will obtain independent tax counsel and be solely responsible
for compliance with the gift value substantiation requirements of the Code.
L. Cash, for the "Purchase Price" defined in paragraph 1(a) below will be
funded from the Land Bank Fund created under the ▇▇▇▇▇▇▇▇ Land Bank Act (Public
Resources Code SectionSection 8600 et seq.). Transactions whereby property is
acquired under the ▇▇▇▇▇▇▇▇ Land Bank Act pursuant to Section 8631 of the Public
Resources Code, are not subject to either the California Environmental Quality
Act or the Subdivision Map Act.
M. It is intended that after the Closing Date, Seller will request Buyer (a)
to issue a Permit (Lease) granting to Seller the right to use "Outer Bolsa Bay,"
as generally shown on the Site Plan, for drainage from the Mesa Property through
storm drains over the areas depicted on EXHIBIT C hereto and (b) to grant to the
County of Orange a right of way easement covering approximately a 700-foot long
strip, 37 feet in width as depicted on EXHIBIT D hereto, which will be used to
widen Warner Avenue at its intersection with the Pacific Coast Highway.
THE PARTIES AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF SUBJECT PROPERTY.
(a) PURCHASE PRICE. Seller shall sell to Buyer, and Buyer shall purchase
from Seller, the Subject Property for a purchase price (the "Purchase
Price") equal to Twenty Five Million Dollars ($25,000,000.00).
(b) METHOD OF PAYMENT. The Purchase Price shall be payable by wire
transfer of immediately available funds on the Closing Date to the following
account:
Account Name: Signal Bolsa Corporation
Bank: Bank of America
San Francisco, CA
ABA: ▇▇▇▇▇▇▇▇▇
Account: 14586-00781
2. Escrow and Closing.
(a) ESCROW. Immediately upon receipt of this Agreement, fully signed by
Buyer and Seller, First American Title Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Escrow Holder") shall open an escrow (the
"Escrow") for the purpose of closing Buyer's purchase of the Subject
Property on the terms and conditions set forth in this Agreement. Upon the
opening of Escrow, Buyer shall deliver to Escrow Holder a deposit of One
Hundred Dollars ($100.00) (the "Deposit") in form of Buyer's check.
(b) SUPPLEMENTAL ESCROW INSTRUCTIONS. Buyer and Seller shall promptly,
upon request, provide the Escrow Holder with supplemental escrow
instructions, and shall provide that if there is any inconsistency between
the terms of this Agreement and such supplemental escrow instructions, the
terms of this Agreement shall prevail and control.
(c) CLOSING. The closing (the "Closing") of Buyer's purchase of the
Subject Property shall occur at the time that all the conditions precedent
set forth in this Agreement have been satisfied or waived and all of the
fully-executed documents and funds described in Sections 2(d), 2(e) and 3(k)
and 3(l) have been delivered to Escrow Holder, and on the day the grant deed
is recorded with the Orange County Recorder (the "Closing Date"). The
Closing shall occur on or before 12:00 noon (PDT) on February 14, 1997
("Outside Date").
(d) DOCUMENTS TO BE DELIVERED BY SELLER. Not later than one (1) business
day before the anticipated Closing Date, Seller shall deliver to the Escrow
Holder: (i) a grant deed, in the form attached hereto as EXHIBIT I attached
hereto (the "Grant Deed"), duly executed and acknowledged by Seller,
3
conveying all of Seller's right, title and interest in and to the Subject
Property to Buyer, subject to the reservation by Seller of (A) a
nonexclusive easement for drainage purposes from the Mesa Property over that
portion of the Lowland as generally shown on the Site Plan, (B) an easement
for highway and roadway purposes over that 30 foot portion of the Lowland
adjacent to the Pacific Coast Highway as generally shown on the Site Plan,
and (C) a temporary construction easement as generally shown on the Site
Plan, and (D) slope maintenance easement as generally shown on the Site
Plan, (ii) copies of any approvals, licenses, permits, maps, plans or
studies (exclusive of any proprietary plans or studies regarding the
residential use of the lowland) obtained by Seller in connection with the
development, construction or use of the Subject Property which are in
Seller's possession, including any approvals from the County and from the
Coastal Commission; (iii) an assignment of oil and gas leases, in the form
of EXHIBIT E attached hereto ("Recorded Assignment") executed and
acknowledged by Seller, and two assignments and two assumption agreements,
in the form of EXHIBIT J attached hereto ("Assignment") executed by Seller,
relating to those matters identified in EXHIBIT M attached hereto; (iv) two
agreements regarding mitigation for roadway widening, in the form of EXHIBIT
K attached hereto ("Roadway/Mitigation Agreement"), executed by Seller,
which agreement provides the ability of Seller, at its own discretion, to
either pay funds for the wetland restoration of approximately twelve (12)
acres within the Lowland or undertake such wetland restoration itself, in
accordance with the then current approved wetland restoration plan, in order
to mitigate for the roadway widening to be done in the Warner Avenue Pond
area which is generally shown on the Site Plan; (v) three Cleanup Agreement
and Release agreements in the form of EXHIBIT N hereto (the "Cleanup
Agreement") executed by Seller and CalResources, LLC; (vi) three copies of
the Settlement, Release and Indemnity Agreement (the "Tri-Party Agreement")
executed by Seller and ▇▇▇▇ Real Estate Group; (vii) a guaranty in the form
of EXHIBIT P hereto (the "Guaranty") executed by ▇▇▇▇ Real Estate Group; and
(viii) a Federal Certification of Non-Foreign Status and California Form 590
executed by Seller.
(e) FUNDS AND DOCUMENTS TO BE DELIVERED BY BUYER. Not later than one (1)
business day before the Closing Date, Buyer shall deliver or cause to be
delivered to the Escrow Holder: (i) cash or immediately available funds, in
the amount equal to the Purchase Price plus any costs or prorations
chargeable to Buyer under this Agreement; (ii) the Grant Deed duly executed
and acknowledged by Buyer, along with a certificate of acceptance thereto;
(iii) the Recorded Assignment duly executed and acknowledged by Buyer; (iv)
two Assignments duly executed by Buyer; (v) two Roadway/Mitigation
Agreements duly executed by Buyer; and (vi) three Cleanup Agreements duly
executed by Buyer.
(f) CLOSE OF ESCROW. On the Closing Date, Escrow Holder will:
(i) Record the Grant Deed in the Official Records of Orange County.
(ii) Record the Recorded Assignment in the Official Records of
Orange County.
(iii) Deliver to Seller one fully executed Assignment,
Roadway/Mitigation Agreement, Cleanup Agreement and Tri-Party Agreement.
(iv) Deliver to Buyer one fully executed Assignment,
Roadway/Mitigation Agreement Cleanup Agreement, the CalResources
Estoppel, the Guaranty, the Federal Certification of Non-Foreign Status
and the California Form 590.
(v) Deliver to CalResources by wire transfer in accordance with
instructions to be provided separately the amount of $416,666.50 in
payment of an obligation of Seller under the Tri-Party Agreement, and
deliver to CalResources at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a
fully executed Cleanup Agreement, Bilateral Agreement (defined in Section
3(k) below) and Tri-Party Agreement.
(vi) Deliver to ▇▇▇▇▇▇▇▇ Petroleum Company by wire transfer in
accordance with instructions to be provided separately the amount of
$416,666.50.
4
(vii) Deliver to Seller by wire transfer in accordance with Section
1(b) hereof the Purchase Price, less the amounts paid to CalResources and
▇▇▇▇▇▇▇▇ Petroleum Company under Section 2(f)(v) and (vi) above, adjusted
by deducting Seller's share of closing costs and deducting any net debit
or crediting any net credit to Seller's account by reason of prorations.
(viii) Deliver to Buyer as soon as possible after the Close of Escrow
the title policy referenced in Section 6, subject only to the Grant Deed,
the Recorded Assignment and the exceptions shown on EXHIBIT H.
(ix) Deliver to ▇▇▇▇▇▇▇▇ Petroleum Company at ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, one fully executed Bilateral Agreement and Tri-Party
Agreement.
(x) Deliver conformed copies of all of the foregoing documents
(except the Bilateral Agreement), including but not limited to this
Agreement and any amendments hereto, and a copy of the title policy to
Seller's attorney, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Nossaman, Guthner, ▇▇▇▇ &
▇▇▇▇▇▇▇, LLP ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
3. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligation of Buyer
to purchase the Subject Property is subject to the occurrence or satisfaction,
on or before the date specified in this Agreement or, if no date is specified,
then before the Closing, of each of the following conditions precedent, all of
which shall be for the benefit of Buyer and may be waived by Buyer in writing.
If any of the following conditions has not been satisfied or waived on or before
the Closing Date, Buyer may elect to terminate this Agreement and Escrow by
delivering written notice to Seller and to Escrow Holder. Effective upon
delivery of such notice, this Agreement and Escrow shall be deemed terminated,
and thereafter, Seller shall have no obligation to sell the Subject Property to
Buyer, and Buyer shall have no interest whatsoever in all or any part of the
Subject Property.
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct on and as of the Closing Date, as though
made at that time.
(b) Escrow Holder shall be irrevocably committed to issue the title
insurance policy described in Section 6 to Buyer.
(c) Seller shall have delivered into Escrow prior to Closing all of the
items referenced in Sections 2(d) and 3(g).
(d) Seller shall have removed or caused to be removed from the Subject
Property at Seller's expense any and all of Seller's fixtures and personal
property, unless otherwise agreed to in writing by Buyer.
(e) Seller shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this
Agreement to be performed, complied with or satisfied by Seller on or before
the Closing Date.
(f) The Closing shall have occurred before the Outside Date.
(g) Seller and Buyer have each delivered to Escrow Holder on or before
February 14, 1997 a letter stating that the conditions precedent to the
Closing for the benefit of the signatory of each such letter under this
Agreement (other than the delivery of any document, letter or funds) have
either been satisfied or waived.
(h) Funds are authorized for use under the Mitigation Credit Agreement
with regard to funding the Purchase Price under this Agreement.
(i) The Coastal Commission has given approval and made the consistency
determination for those matters described in Section 10(a) of the Mitigation
Credit Agreement.
5
(j) All the events specified in Section 13(a) of the Mitigation Credit
Agreement shall have timely occurred.
(k) CalResources LLC shall have delivered to Escrow Holder before the
Closing Date an estoppel in the form of EXHIBIT O attached hereto executed
by CalResources, and three Cleanup Agreements, three Tri-Party Agreements,
and two copies of the Settlement Agreement and Agreement for Releases (the
"Bilateral Agreement") all executed by CalResources, Shell Western E&P Inc.
and Shell Oil Company.
(l) ▇▇▇▇▇▇▇▇ Petroleum Company shall have delivered to Escrow Holder
before the Closing three copies of the Tri-Party Agreement and Cleanup
Agreement and two copies of the Bilateral Agreement, all executed by
▇▇▇▇▇▇▇▇ Petroleum Company.
(m) Seller is not in default under this Agreement.
4. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligation of Seller
to sell the Subject Property is subject to the occurrence or satisfaction, on or
before the date specified in this Agreement or, if no date is specified, then
before the Closing, of each of the following conditions precedent, all of which
shall be for the benefit of Seller and may be waived by Seller in writing. If
any of the following conditions has not been satisfied or waived on or before
the Closing Date, Seller may elect to terminate this Agreement and Escrow by
delivering written notice to Buyer and to Escrow Holder. Effective upon delivery
of such notice, this Agreement and Escrow shall be deemed terminated, and
thereafter, Seller shall have no obligation to sell the Subject Property to
Buyer, and Buyer shall have no interest whatsoever in all or any part of the
Subject Property.
(a) All the events specified in Section 13(a) of the Mitigation Credit
Agreement shall have timely occurred and the Coastal Commission has given
approval and made the consistency determination for those matters described
in Section 10(a) of the Mitigation Credit Agreement.
(b) All representations and warranties of Buyer contained in this
Agreement shall be true on and as of the Closing Date, as though made at
that time.
(c) Buyer shall have delivered into Escrow prior to Closing all of the
items referenced in Section 2(e).
(d) Buyer shall have performed, satisfied and complied with in all
materials respects all the covenants, agreements and conditions required by
this Agreement to be performed, complied with or satisfied by Buyer on or
before the Closing Date.
(e) The Closing shall have occurred before the Outside Date.
(f) Seller and Buyer have signed and deposited with Escrow Holder the
Assignment and Recorded Assignment required under Sections 2(d)(iii);
(g) Seller and Buyer have each delivered to Escrow Holder on or before
February 14, 1997 a letter stating that the conditions precedent to the
Closing for the benefit of the signatory of each such letter under this
Agreement (other than the delivery of any document, letter or funds) have
either been satisfied or waived; and
(h) Buyer is not in default under this Agreement.
5. TITLE. Buyer hereby approves of the title exceptions set forth on
EXHIBIT H attached hereto.
6. TITLE INSURANCE. Seller shall provide to Buyer, at Seller's cost, a
CLTA owner's policy of title insurance in the full amount of the Purchase Price
insuring that title to the Subject Property is vested in Buyer upon the Closing
subject only to the exceptions allowed pursuant to Section 5. Buyer may elect to
obtain an ALTA extended coverage owner's policy of title insurance issued to
Buyer at the Closing, together with such title endorsements reasonably
satisfactory to Buyer. In that case, Buyer shall bear the
6
additional premium costs associated therewith, and Buyer shall be responsible
for obtaining, at Buyer's sole cost and expense, any survey or other item
necessary for issuance of the ALTA policy. In no event shall the Closing be
delayed on account of or conditioned upon the issuance of an ALTA policy.
7. SELLER'S COVENANTS.
(a) PRE-CLOSING COVENANTS. Subject to all covenants and requirements
under Project Approvals, Seller shall not take any of the following actions
prior to the Closing without the prior written consent of Buyer, which
consent shall not be unreasonably withheld, conditioned or delayed: (i) make
or allow to be made, extend or allow to be extended any leases, contracts,
options or agreements whatsoever affecting the Subject Property, except
those which can be terminated on 30 days or less notice; (ii) cause or
permit any lien, encumbrance, mortgage, deed of trust, right restriction or
easement to be placed upon the Subject Property; PROVIDED, that Seller shall
be entitled to take action if Seller removes such lien or encumbrance on or
prior to the Closing; (iii) permit any mortgage, deed of trust or other lien
to be foreclosed upon due to Seller's actions or omissions, including
failure to make a required payment or failure to obtain the consent of a
beneficiary under any deed of trust and/or mortgagee, under any mortgage on
the Subject Property to enter into this Agreement, if such consent is
required under the terms of such deed of trust and/or mortgage; (iv) sell,
assign or otherwise transfer to any other party any of the water or mineral
rights relating to any portion of the Subject Property; (v) undertake any
work or improvements of any kind upon the Subject Property or any portion
thereof except for the removal of any of Seller's fixtures or personal
property, or (vi) use, produce, treat, store, release, transport or dispose
of any hazardous substances on the Subject Property, except as permitted or
required by law.
(b) POST-CLOSING COVENANTS. In order to provide comfort to Buyer that
Seller will be able to fulfill its obligations under the Cleanup Agreement
("Seller's Cleanup Obligations"), Seller agrees to provide a reserve (the
"Reserve") on its financial statements for Seller's Cleanup Obligations,
which Reserve will be maintained until Seller has fulfilled all of Seller's
Cleanup Obligations. The amount of the Reserve shall be $700,000.00, which
is a good faith estimate of the amount necessary for Seller to fulfill
Seller's Cleanup Obligations. The amount of the Reserve is subject to
reduction by mutual agreement of Buyer and Seller from time to time as
Seller's Cleanup Obligations are more precisely calculated due to (i) a
determination in the Ecological Risk Assessment - Confirmatory Sampling that
Seller's Cleanup Obligations are less, or (ii) cleanup actually taking place
which reduces Seller's Cleanup Obligations. If for any reason the amount
calculated by mutual agreement of Seller and Buyer for Seller's Cleanup
Obligations is less than the amount in the Reserve, Seller may reduce the
Reserve to such lower amount. Under no circumstances is Seller obligated to
increase the amount of the Reserve.
8. SELLER'S REPRESENTATIONS. Seller makes the following representations
and warranties in favor of Buyer (whenever any representation or warranty is to
the best of Seller's actual knowledge, it refers to only the current actual
knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, without any independent investigation or inquiry, but after
inquiry of those consultants identified on attached EXHIBIT L, and the knowledge
of other people employed by or connected with Seller cannot be the basis of a
breach of any representation or warranty):
(a) Seller has full power and authority to execute, deliver and carry
out the terms of this Agreement and to sell, transfer and convey all right,
title and interest in and to the Subject Property in accordance with this
Agreement, and Seller has taken all necessary action required by law to
authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by Seller, and,
upon the execution and delivery by Buyer, will constitute the legal, valid
and binding obligations of Seller in accordance with its terms.
7
(c) Except such persons or entities as may have the right to use or
occupy the Subject Property under the exception(s) set forth on EXHIBIT H
attached hereto in the Title Report and then only to the extent of such
right, no party other than Seller will be in possession of any portion of
the Subject Property at the close of escrow.
(d) To the best of Seller's actual knowledge, and except as disclosed to
Buyer and other than as set forth on EXHIBIT F attached hereto, there is no
suit, action, arbitration, legal, administrative or other proceeding or
inquiry, including without limitation, condemnation or eminent domain
proceedings, pending or threatened against or relating to the Subject
Property, or any portion thereof, or pending or threatened against Seller
which could affect Seller's title to the Subject Property, or any portion
thereof, affect the value of the Subject Property, or any portion thereof,
or subject an owner of the Subject Property, or any portion thereof, to
liability.
(e) To the best of Seller's actual knowledge, there are no encumbrances
or liens against the Subject Property, including, without limitation,
unexpired leases, options, mortgages or deed of trust, other than those set
forth on EXHIBIT H attached hereto.
(f) To the best of Seller's actual knowledge, there are no:
(i) Intended public improvements or private rights which will result
in the creation of any liens upon the Subject Property or any portion
thereof, except as required in connection with any of the Project
Approvals;
(ii) Uncured notices which have been served upon Seller from any
governmental agency notifying Seller of any violations of law, ordinance,
rule or regulation which would affect the Subject Property or any portion
thereof;
(iii) Actual or pending mechanics liens against the Subject Property
or any portion thereof other than that certain Mechanic's Lien in favor
of Penhall Company which will be removed by Seller prior to or concurrent
with the Closing; or
(iv) Except as disclosed to Buyer in writing or other information
Buyer has obtained, Seller has not received any notice or other
information giving Seller reason to believe that any conditions existing
on the Subject Property or in the vicinity of the Subject Property or in
ground or surface waters associated with the Subject Property may have a
material effect on the value of the Subject Property or subject the owner
of the Subject Property to potential liabilities under Environmental
Laws.
(g) Seller is not a "foreign person," and Seller is a "United States
Person" pursuant to Section 7701(a)(30) of the Internal Revenue Code.
(h) Neither the execution of this Agreement nor Seller's performance
under this Agreement shall constitute a breach or default under any
agreement to which Seller is bound and/or to which the Subject Property is
subject, including any deed of trust and/or mortgage.
(i) To the best of Seller's actual knowledge and subject to those
litigation matters listed on EXHIBIT F attached hereto, no violations exist
with respect to the Subject Property or any of its improvements of any
building code, ordinance, statute, regulation or administrative or judicial
order or holding.
(j) To the best of Seller's actual knowledge, except as disclosed in
writing to Buyer from Seller or other written information gathered by Buyer
(including but not limited to the Phase II Environment Assessment for Bolsa
Chica Lowland and Pocket Area currently being undertaken by Tetra Tech,
Inc.), there are no hazardous substances on or under the Property.
(k) Seller hereby makes those disclosures set forth in EXHIBIT G
attached hereto.
8
(l) Except for the items listed in EXHIBITS H AND M, there are no
leases, subleases, licenses, occupancy agreements, options or other
agreements or arrangements, written or oral, entered into by or binding upon
Seller granting to any person or entity the right to use, occupy or purchase
the Subject Property or any water or mineral right associated therewith. To
the best of Seller's actual knowledge, the items identified in EXHIBIT M are
in full force and effect and no event of default presently exists thereunder
and no event has occurred which, with the giving of notice or the passage of
time, or both, would constitute a default by any party thereunder (exclusive
of the notice provisions relating to the timing and abandonment of ▇▇▇▇▇ and
equipment, all as provided in the Bolsa Surface Use Agreement, as amended,
and the supplemental letter agreements, all of which are identified in
EXHIBIT M).
9. BUYER'S REPRESENTATIONS AND COVENANTS.
(a) Buyer makes the following representations and warranties in favor of
Seller (whenever any representation or warranty is to the best of Buyer's
actual knowledge, it refers to only the current actual knowledge of ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, without any independent
investigation or inquiry and the knowledge of other people employed by or
connected with Buyer cannot be the basis of a breach of any representation
or warranty):
(i) Buyer has full power and authority to execute, deliver and carry
out the terms of this Agreement, and Buyer has taken all necessary action
required by law to authorize the execution, delivery and performance of
this Agreement.
(ii) This Agreement has been duly executed and delivered by Buyer,
and, upon the execution and delivery by Seller, will constitute the
legal, valid and binding obligations of Buyer in accordance with its
terms.
(iii) To the best of Buyer's actual knowledge, there is no suit,
action, arbitration, legal, administrative or other proceeding or
inquiry, pending or threatened against or relating to Buyer which could
affect Buyer's ability to perform its obligations under this Agreement.
(iv) Neither the execution of this Agreement nor Buyer's performance
under this Agreement shall constitute a breach or default under any
agreement to which Buyer is bound.
(b) Provided that Buyer obtains title to the MWD Wetlands Property as
shown on Exhibit A hereto, Buyer agrees to use its best efforts to include
restoration of the "Bolsa Chica Lowlands Pocket" (as generally shown on the
Site Plan) in the first phase of the restoration project consistent with the
County of Orange's Wetland Restoration Plan or other wetland restoration
plan approved by Seller, subject to compliance with NEPA/CEQA procedural
requirements. To the extent funds are available for use from the Mesa
Conservation Fund, the Buyer shall use its best efforts to first use such
funds for the restoration of said "pocket." The covenants contained in this
Section 9(b) shall survive the Closing.
(c) Buyer hereby agrees prior to the earlier of February 14, 1997 or the
Closing, to take no action the purpose of which is to cause the Certified
7/11/96 LCP to lapse or be modified to the detriment of Seller in the event
there is no Closing under this Agreement.
(d) Buyer hereby agrees that promptly after the Closing Date, Buyer will
file with the Orange County Assessor a notice of exemption from taxation and
a request for cancellation of taxes with respect to the Subject Property.
10. AS IS, WHERE IS CONDITION. Buyer agrees that, except for Seller's
representations and warranties under Article 8 above, (i) it is purchasing the
Subject Property on an "AS IS, WHERE IS" basis and based on its own
investigation of the Subject Property, (ii) neither Seller nor Seller's
employees, agents, brokers, representatives, managers, property managers, asset
managers, officers, principals, attorneys or contractors (collectively,
"Seller's Representatives") have made any warranty, representation or guarantee,
expressed,
9
implied or statutory, written or oral, concerning the Subject Property or any of
the products located thereon or therein, and (iii) neither Seller nor Seller's
Representatives have made any warranty, representation or guarantee, expressed,
implied or statutory, written or oral, pertaining to the Subject Property's
compliance with any laws, ordinances, rules or regulations, federal, state or
local, and (iv) neither Seller nor Seller's Representatives have made any
warranty, representation nor guarantee, expressed, implied or statutory, written
or oral, as to any government limitation or restriction, or absence thereof,
pertaining to the Subject Property, or as to the presence or absence of any
latent defect, subsurface soil condition, environmental condition, hazardous
substance, toxic waste or any other matter pertaining to the physical condition
(title, mapping, grading, construction, or otherwise) of the Subject Property.
In making its decision to purchase the Subject Property, Buyer represents that
it has had sufficient opportunity to review, investigate, study and conduct
tests on the Subject Property and that it has relied solely upon its
investigation of the Subject Property. Except as provided under Article 8 above,
all of Seller's and Seller's Representatives' statements, whenever made, are
made only as an accommodation to Buyer and are not intended to be relied or
acted upon in any manner by Buyer. Buyer and Seller acknowledge that neither of
them nor their representatives have made any representation, warranty or
covenant regarding the availability of, or amount of, any fee, assessment, or
cost relating to the development, construction, occupancy, use or ownership of
the Subject Property. Except as provided under Article 8 above, neither Seller
nor Seller's Representatives have made any representation, warranty or guarantee
as to any land use controls or other laws, rules, and regulations of any
governmental agency having jurisdiction applicable to the Subject Property.
Nothing in this paragraph 10 shall be deemed a waiver or release of any
obligation of Seller set forth in this Agreement, any agreement delivered
through Escrow at the Closing, or any other claim Buyer may have against Seller
for contribution or otherwise under any environmental or common law.
11. RISK OF LOSS. All risk of loss shall remain with Seller until the
Closing. In the event any of the Subject Property is substantially destroyed or
substantially damages after the execution of this Agreement and prior to the
Closing, Seller shall give Buyer notice of such destruction or damage as soon as
reasonably possible after Seller learns of such damage or destruction. With 10
days after receipt of such notice, Buyer may rescind this Agreement by written
notice to Seller in which case Buyer shall have no obligation to purchase the
Subject Property.
12. CONDEMNATION. In the event of the taking of all or any part of the
Subject Property by eminent domain proceedings, or the commencement of such
proceedings prior to Buyer's purchase of the Subject Property, Buyer shall (a)
proceed to close with the Purchase Price reduced by the total amount of any
awards or other proceeds received or to be received by Seller as a result of
such proceedings, or (b) proceed to close with an assignment by Seller of all
Seller's right, title and interest in and to any and all such awards and
proceeds or (c) if the taking is material in the sole discretion of Buyer,
terminate this Agreement by giving written notice to Seller which notice shall
be given within 30 days after being informed of such proceeding. Seller shall
notify Buyer in writing of any eminent domain proceedings affecting the Subject
Property within five (5) days after Seller learns of such proceedings.
Notwithstanding anything herein to the contrary, in the event there is a
condemnation action filed and in the event Seller reasonably determines that as
a result of such condemnation action, its rights under the Certified 7/11/96 LCP
will be detrimentally impacted, Seller shall have the right to terminate this
Agreement upon notice to Buyer.
13. PRORATIONS AND FEES. Real property taxes, including assessments, on
the Subject Property shall be prorated as of the Closing based upon the latest
available tax bills. Seller shall pay the following closing costs: all of the
escrow fees, documentary taxes or real property transfer taxes (if any) and the
CLTA portion of the title insurance fees. Buyer shall pay the balance of the
title insurance fees if Buyer elects an ALTA policy.
14. BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants made in this Agreement by each of
Buyer and Seller based on the individuals designated for
10
such representations and warranties are material and are relied upon by the
party to whom such representations, warranties and covenants are being made.
Buyer acknowledges that Seller's representations contained herein do not relieve
Buyer from exercising reasonable due diligence with respect to Buyer's intended
use of and the conditions to the Subject Property. All representations and
warranties shall be deemed to have been made as of the Closing and shall survive
the Closing for a one-year period immediately following the Closing. Subject to
the prior sentence, a party's liability or obligation under any representation
or warranty is conditioned upon that party's receipt of written notification of
claim within 30 days after the date the other party or its agents know of the
matter which is the subject of the claim. A party's representation or warranty
shall be of no effect to the extent that the other party had knowledge at the
time of the close of Escrow that such representation or warranty was untrue or
inaccurate. A party may only maintain an action for a breach of the other
party's representations and warranties contained in this Agreement if the first
party is not then in material default under this Agreement. Upon the Closing, if
either party requests, the other party shall deliver to the requesting party a
certificate in a form satisfactory to the requesting party stating that all
representations, warranties and covenants are true and correct as of the
Closing.
If, before the Closing, either party discovers any information or facts that
would materially adversely change any representations, warranties and covenants,
whether made by that party or not, that party shall immediately give written
notice to the other of those facts and information. If any of the
representations, warranties and covenants cease to be true before the Closing,
as its sole remedy, the party in whose favor the representation, warranty and
covenant runs may elect to terminate this Agreement by delivering written notice
to the other party within five days after discovering the new information or
facts. The failure of the party to deliver such notice within the 5-day period
shall constitute the waiver of that party of the right to terminate this
Agreement for that reason.
15. NOTICES. Any notice, demand, approval, consent of other communication
required or desired to be given under this Agreement shall be in writing and
shall be given in the manner set forth below, addressed to the party to be
served at the addresses set forth in Recital A, or at such other address for
which that party may have given notice under the provisions of this Section 15.
Any notice, demand, approval, consent, or other communication given by (a)
overnight common carrier courier service shall be deemed to be given on the
business day immediately following the date it was deposited with such common
carrier which as been reasonably approved by the parties (Federal Express, UPS
and DHL Worldwide Express being deemed approved by the parties), postage
prepaid; or (b) delivery in person or by messenger shall be deemed to have been
given upon delivery in person or by messenger; or (c) fax shall be deemed given
on the date sent if a hard copy is thereafter delivered under Section 15(a) and
(b).
Each party shall make an ordinary, good faith effort to ensure that it will
accept or receive notices that are given in accordance with this Section 15, and
that any person to be given notice actually receives such notice. A party may
change or supplement the addresses set forth in Recital A, or designate
additional addresses for purposes of this Section 15 by giving the other party
written notice of the new address in the manner set forth above.
16. AGENTS. Buyer and Seller each warrant and represent to the other that
it has not retained, nor is it obligated to, any person for brokerage fees,
finder's fees or fees for similar services in connection with the transactions
contemplated by this Agreement, and that no commission, finder's fee or other
brokerage or agent's compensation can be properly claimed by any person or
entity based upon the acts of such party with regard to the transactions which
are the subject matter of this Agreement. Seller shall indemnify and defend
Buyer against and hold Buyer harmless from all claims, demands, liabilities,
losses, damages, costs and expenses (including, without limitation, reasonable
attorneys' fees, costs of expert witnesses, court costs and other litigation
expenses) arising from or relating to any claim for a commission, fee or other
compensation made by any brokers or parties with which Seller has dealt in
connection with this Agreement or the transactions contemplated hereby. Buyer
shall indemnify and defend Seller against and hold Seller harmless from all
claims, demands, liabilities, losses, damages, costs and expenses (including,
11
without limitation, reasonable attorneys' fees, costs of expert witnesses, court
costs and other litigation expenses) arising from or related to any claim for a
commission, fee or other compensation made by any brokers or parties with which
Buyer has dealt in connection with this Agreement or the transactions
contemplated hereto. The provisions of this paragraph 16 shall survive the
Closing.
17. TIME OF THE ESSENCE. Time is of the essence of this Agreement. In the
event that any date specified in this Agreement falls on Saturday, Sunday, or a
public holiday, such date shall be deemed to be the succeeding day on which the
public agencies and major banks are open for business.
18. BINDING ON SUCCESSORS. This Agreement shall be binding not only upon
the parties but also upon their heirs, personal representatives, assigns, and
other successors-in-interest.
19. ADDITIONAL DOCUMENTS. Seller and Buyer agree to execute such
additional documents, including escrow instructions, as may be reasonable and
necessary to carry out the provisions of this Agreement.
20. NON-FOREIGN CERTIFICATE. Prior to the Closing, Seller shall execute a
Non-Foreign Certificate in the form reasonably approved by Seller and Buyer, and
shall deliver such certificate to Buyer. Seller acknowledges that if Seller is
unable to certify that it is not a "foreign person," Buyer may be required to
withhold a portion of the Purchase Price at the Closing for U.S. income tax
purposes.
21. ENTIRE AGREEMENT--MODIFICATION--NON-WAIVER. This Agreement constitutes
the entire agreement between Buyer and Seller pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous agreements,
representations and understandings. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by all of the
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a continuing waiver. No waiver shall be binding unless executed
in writing by the party making the waiver.
22. ASSIGNMENT OF BUYER'S INTEREST. Prior to the Closing, Buyer shall not
assign all or any part of its rights, duties, or other interests in this
Agreement without the prior written consent of Seller, which consent shall not
be unreasonably withheld. It is understood and agreed that notwithstanding the
fact that Buyer is executing this Agreement in its capacity as "Land Bank
Trustee," Buyer at the Closing will take title in its own name and not in its
capacity as Land Bank Trustee.
23. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and which together shall constitute one and
the same agreement.
24. SEVERABILITY. Each provision of this Agreement is severable from any
and all other provisions of this Agreement. Should any provision(s) of this
Agreement be for any reason unenforceable, the balance shall nonetheless be of
full force and effect.
25. SURVIVAL. Subject to paragraph 14, those obligations contained in this
Agreement which specifically are to survive the Closing, shall survive the
Closing.
26. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of California
12
27. DRAFTING. The parties to this Agreement agree that this Agreement is
the product of joint draftsmanship and negotiation and that should any of the
terms be determined by a court, or in any quasi-judicial or other proceeding, to
be vague, ambiguous and/or unintelligible, that the same sentences, phrases,
clauses or other wordage or language of any kind shall not be construed against
the drafting party in accordance with California Civil Code Section 1654, and
that each such party to this Agreement waives the effect of such statute.
SELLER: BUYER:
SIGNAL BOLSA CORPORATION, a California STATE OF CALIFORNIA, acting by and through
corporation the STATE LANDS COMMISSION in its capacity
as "Land Bank Trustee" under the ▇▇▇▇▇▇▇▇
Land Bank Act
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President Title: Executive Officer
Date: Date:
The Escrow provided for herein is hereby agreed to and accepted by the
undersigned.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. Young__________________
Name: ▇▇▇▇▇ ▇. Young____________________
Title: Escrow Officer___________________
Date: __________________________________
13