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EXHIBIT 10.1.1
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AMENDMENT NO. 1 TO
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PURCHASE AND SALE AGREEMENT AND
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JOINT ESCROW INSTRUCTIONS
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THIS AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Amendment") is made and entered into and effective as of
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July 20, 2000, by and between KAISER VENTURES INC., a Delaware corporation, and
KAISER STEEL LAND DEVELOPMENT INC., a Delaware corporation (collectively,
"Seller"), and CCG ONTARIO, LLC, a Delaware limited liability company ("Buyer").
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RECITALS
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A. WHEREAS, Buyer and Seller have entered into that certain Purchase
and Sale Agreement and Joint Escrow Instructions dated as of July 13, 2000 (the
"Purchase Agreement"); and
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B. WHEREAS, Buyer and Seller desire to amend the Purchase Agreement,
as more particularly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
AGREEMENT
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1. Amendments. The Purchase Agreement is hereby amended as follows:
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A. The "Contingency Date" (as defined in Section 1.13 of the Purchase
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Agreement) shall be extended to July 27, 2000. Seller shall not require Buyer
to deposit any additional funds as a condition to the extension of the
Contingency Date hereunder.
B. Section 3.1.1.1 of the Purchase Agreement is hereby revised to
read in full as follows:
3.1.1.1 If on the Contingency Date, the Deed Restriction
described in Exhibit Y, attached hereto (the "Deed Restriction"),
the Omnibus Assignment and Assumption Agreement, the CDC
Guaranty, the Insurance Policies and the IT Contract have not
been finalized, Buyer shall be entitled to extend the Contingency
Date to August 4, 2000 and the Closing Date to August 10, 2000,
by delivering to Seller and Escrow Holder on or before July 27,
2000 notice of such election and to Escrow Holder Five Hundred
Thousand Dollars ($500,000) (the "Additional Deposit") in
immediately available funds provided that, if, by July 27, 2000,
Seller has not delivered the agreement described in Section
5.2.17, the easements or indemnity described in Section 5.2.18
and the consents described in Section 5.2.20, the date for
posting the Additional Deposit shall be extended to the date two
business days after Seller has delivered the agreement described
in Section 5.2.17, the easements or indemnity described in
Section 5.2.18 and the consents described in Section 5.2.20 and
provided further that Buyer shall post the Additional Deposit or
so much thereof as would have been released to Seller
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under the terms of this Agreement if the Additional Deposit had
been posted on the date Seller made the deliveries so long as
Buyer exercised its extension rights hereunder and had not
terminated this Agreement under Section 4.7 before Seller has
made the deliveries described above. Upon delivery of the
Additional Deposit, Escrow Holder shall immediately release Two
Hundred Fifty Thousand Dollars ($250,000) of the Additional
Deposit to Seller.
C. Section 3.1.2 of the Purchase Agreement is hereby revised to read
in full as follows:
3.1.2 Disposition of Deposit. In the event this Agreement is
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terminated or the Close of Escrow fails to occur by reason of
Buyer's default hereunder, the Deposit (including all interest
thereon) shall constitute liquidated damages pursuant to Section
6.2 below. In the event this Agreement is terminated or the
Close of Escrow otherwise fails to occur as a result of a failure
of a condition precedent described in any of Sections 5.2.2-
5.2.5, 5.2.7-5.2.9, 5.12.11-5.2.18 or 5.2.20, the Deposit
(including all interest thereon) shall be returned to Buyer. If
this Agreement is terminated or the Close of Escrow otherwise
fails to occur as a result of a failure of a condition precedent
described in Sections 5.2.1, 5.2.10 or 5.2.19, only any portion
of the Deposit (plus interest accrued thereon) not then released
(or required to be released pursuant to the terms of this
Agreement) to Seller shall be refundable to Buyer. Any portion
of the Deposit released to Seller, once released, (or required to
be released pursuant to the terms of this Agreement) shall be
non-refundable to Buyer except in the event of a failure of a
condition precedent described in any of Sections 5.2.2 - 5.2.5,
5.2.7-5.2.9, 5.2.11 - 5.2.18 or 5.2.20. Notwithstanding any
provision to the contrary contained herein, if the transaction
described herein fails to close as a result of Seller's material
default hereunder, the Deposit shall be refunded to Buyer to the
extent provided for in Section 6.1 hereof. Upon the Close of
Escrow, the Deposit (including all interest accrued thereon)
shall be paid to Seller and shall be credited towards the payment
of the Purchase Price.
D. Section 10.3.1 of the Purchase Agreement is hereby to add the
following as a new clause (i): (i) all reasonable costs incurred in connection
with obtaining access for remediation purposes over the Budway Property, the
Rancho Cucamonga Property, the D.T. Sari Property and the Maas Hansen Property
as depicted on Exhibit A-1 attached hereto.
E. Section 10.3.4 of the Purchase Agreement is hereby revised to read
in full as follows:
10.3.4 Indemnification by Buyer. Except only for the Excluded
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Liabilities and Losses (as hereinafter defined) arising out of
Seller's failure to make any payments required of Seller pursuant
to Section 10.7 hereof, Buyer agrees to assume, indemnify, hold
harmless and defend Seller and its past, current and future
affiliates, subsidiaries and each of their officers, directors,
employees, agents and representatives (collectively, the "Seller
Parties") from and against any and all Environmental Liabilities
and Obligations, and from and against any and all liabilities,
penalties, fines, suits, claims, demands, actions, losses,
damages, expenses, investigation and remediation costs
(including, but not limited
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to, laboratory, handling, transportation, containment,
neutralization, disposal, capping and other similar costs),
operation and maintenance costs, financial assurance costs (other
than costs of Seller's existing financial assurances), Agency
costs (including, but not limited to, permitting, licensing,
hazardous waste taxes and oversight costs), causes of action,
proceedings, judgments, executions and reasonable costs of any
kind or nature whatsoever (including reasonable attorneys',
consultants', engineers', experts' and contractors' fees)
(collectively, "Losses") in connection with, arising out of or
related to: (a) any Corrective Action; (b) compliance or
noncompliance with any Requirements; (c) the existence of any
threat to health, safety or the environment under any Laws, or
the presence or alleged presence or release of any Hazardous
Substances on, under, at or from the Real Property or the Tar
Pits Property; (d) Buyer and ITG's compliance or non compliance
with any Law; (e) the breach of this Agreement or any Exhibit
attached hereto and incorporated herein by Buyer except for
consequential damages incurred by Seller and arising out of such
breach (as distinct from consequential damages incurred by third
parties and recovered or recoverable from Seller which third
party consequential damages shall be recoverable hereunder); (f)
any breach of the IT Contract or the performance and completion
bond, as defined in Section 10.4 below and (g) personal injury,
including death and disability, occurring on or after the Close
of Escrow caused to employees, contractors, invitees or guests or
any other persons at or from the Real Property to the extent such
injury is not related to Hazardous Substances conditions at the
Real Property or the Adjacent Property; provided, however, that
this subparagraph (g) of Section 10.3.2 shall not be deemed to
limit Buyer's assumption and responsibility for any claims
(whether arising prior to, as of or after the Close of Escrow) as
provided in this Agreement or in any exhibit hereto related to
Hazardous Substances conditions that were or are at or from the
Real Property and/or the Adjacent Property. In addition, except
for the Excluded Liabilities, Losses arising out of Seller's
failure to make any payments required of Seller pursuant to
Section 10.7 hereof, Losses realized by the Seller Parties (or
any of them) for diminution in value of the Real Property or the
Adjacent Real Property resulting from the Seller Parties' or any
of their inability to use the Real Property or the Adjacent Real
Property for a desired purpose or Losses realized by the Seller
Parties or any of them pursuant to any contracts or other
agreements (which Losses shall be assumed and indemnified against
only to the extent provided for in the Omnibus Assignment and
Assumption Agreement), Buyer shall assume and indemnify, defend
and hold the Seller Parties other than any affiliates of Seller
or any of such affiliates' officers, directors, employees, agents
and representatives harmless from and against all Losses arising
out of the presence during Seller's ownership of the Adjacent
Property of Hazardous Substances in, on or under the Adjacent
Property in violation of applicable Laws. Any indemnification and
defense to be provided pursuant to this Section 10.3.4 shall be
conducted in accordance with the procedures set forth in Section
14, below. The parties acknowledge that they are continuing to
negotiate the extent to which Buyer will assume liabilities to
the MRF and any of the Speedway
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entities for diminution in value claims or claims resulting from
such entities in ability to use their properties for a desired
purpose.
F. Section 10.3.5 is hereby revised to read in its entirety as
follows:
10.3.5 Seller's Responsibility. Following the Close of Escrow,
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Seller shall refrain from any communications or discussions with
any Agency or any third party (other than communications or
discussions relating to the Excluded Liabilities) and from taking
any other action which could result in any Agency requesting or
requiring Buyer or the owner of the Real Property, the Tar Pits
Property or any Adjacent Property to take, perform or cease any
activity on or with respect to such Real Property, the Tar Pits
Property or Adjacent Property except communications (which shall
be made jointly with Buyer) relating to (i) remediation of the
Tar Pits Property, (ii) elimination of the public hearing
requirement regarding closure of the Speedway site under the
Buyer Consent Order and (iii) if not terminated prior to the
Close of Escrow, termination of the Kaiser Consent Order. Seller
and Buyer shall give notice to DTSC and each other Agency with
which Seller has been in communications within the past twelve
(12) months regarding the Real Property, the Tar Pits Property
and/or any Adjacent Property that further communications should
be addressed to Buyer (although Seller may be copied on such
notices), and shall so refer any such communications. Seller
shall deliver any and all notices and correspondence received
from any Agency to Buyer within five (5) business days after
receipt thereof. Seller acknowledges that the covenants and
agreements of Seller set forth herein are a material inducement
to the agreements of Buyer set forth herein. The provisions of
this Section 10.3.5 shall not be deemed to prohibit Seller or
Seller's affiliates from engaging in communications or
discussions with any Agency with respect to (i) the MRF's
operations or (ii) the Excluded Liabilities so long as, in each
event, such communications or discussions do not materially
impact the corrective Action to be performed by Buyer hereunder.
Seller shall not be deemed to have engaged in a communication or
discussion in breach of this Agreement as a result of a material
impact on the Corrective Action arising out of a communication or
discussion with an Agency otherwise permitted under clauses (i)
or (ii), above, if Seller or its applicable affiliate could not
reasonably have anticipated the material impact and Seller
provides Buyer with prompt notice of the communication or
discussion and provides Buyer with an opportunity to participate
in any follow up communications or discussions. The provisions
of this Section 10.3.5 shall be suspended during any period in
which Buyer is in Default (as hereinafter defined) or if Seller
takes action to enforce the terms of the performance and
completion bond or the IT Contract.
G. Buyer and Seller agree that the term "Environmental Obligations and
Liabilities" shall not include any costs of Seller's existing financial
assurances.
2. No Other Amendments. Except as expressly amended hereby, the Purchase
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Agreement is unchanged and in full force and effect.
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3. Counterparts. This Amendment may be executed in counterparts, each of
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which shall be an original and all of which taken together shall constitute the
same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the dates written below.
Buyer: CCG ONTARIO, LLC,
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a Delaware limited liability company
By: Catellus Commercial Group, LLC,
a Delaware limited liability company,
Its sole member
By: /s/ Charles A. McPhee
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Name: Charles A. McPhee
Its: Senior Vice President
Date Executed: July 26, 2000
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Seller: KAISER VENTURES INC.,
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a Delaware corporation
By: /s/ Terry L. Cook
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Name: Terry L. Cook
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Its: Executive Vice President -
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General Counsel
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Date Executed: July 26, 2000
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KAISER STEEL LAND DEVELOPMENT INC.,
a Delaware corporation
By: /s/ Terry L. Cook
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Name: Terry L. Cook
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Its: Vice President - General Counsel
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Date Executed: July 26, 2000
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RECEIVED AND ACCEPTED THIS ____ DAY OF ________, 2000.
ESCROW HOLDER:
CHICAGO TITLE INSURANCE COMPANY
By: __________________________
Name: ________________________
Its: _________________________
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