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EXHIBIT 10.1
Purchase and Sale Agreement and
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Joint Escrow Instructions
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THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of July 13, 2000, by and among KAISER
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VENTURES INC., a Delaware corporation and KAISER STEEL LAND DEVELOPMENT INC., a
Delaware corporation, (KAISER VENTURES INC. and KAISER STEEL LAND DEVELOPMENT
INC. are hereafter collectively referred to as "Seller"), and CCG ONTARIO, LLC,
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a Delaware limited liability company or its designee approved as set forth in
Section 15.8 hereof ("Buyer").
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Recitals
A. WHEREAS, Seller is the owner of certain real property commonly
known as the KVI properties located in the County of San Bernardino, State of
California, consisting of approximately 588.39 gross acres and more particularly
described in Exhibit A attached hereto and shown on the map attached hereto as
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Exhibit A-1 (the "Land," and collectively with the Improvements (defined below),
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the "Real Property") and which is more fully described in Section 1.45 below,
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and certain tangible and intangible personal property located on, or associated
with the use and operation of, the Real Property. Notwithstanding any other
provision in this Agreement, the Land and the Real Property do not include the
real property currently owned by Kaiser Ventures Inc. and commonly referred to
as the Rancho Cucamonga Property, the Tar Pits Property and the Household Waste
Property; and
B. WHEREAS, the Real Property and adjoining property were used as a
fully integrated steel mill, which included such items as coke ovens, blast
furnaces, byproducts facilities, power generation facilities, scrap yards, slag
dumps, soaking and waste facilities, a landfill, waste water and sewer treatment
facilities, fabrication facilities and other uses ancillary to a steel and
fabrication mill (collectively "Steel Mill Operations") and was occupied by a
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number of tenants and others subsequent to active Steel Mill Operations; and
C. WHEREAS, in consideration for Buyer's agreement to (i) assume
certain contractual indemnification and other obligations of Seller which are
specifically agreed to by Buyer; (ii) remediate existing Hazardous Substances
contamination at, under, above, adjacent to and/or emanating to or from the Real
Property and/or the Tar Pits Property; (iii) assume any third party liability
associated with the Real Property and/or the Tar Pits Property, except as
expressly excluded; and (iv) other good and valuable consideration, Seller
desires to sell the Real Property and Other Assets (defined in Section 1.37
below) to Buyer on the terms and conditions set forth herein.
D. WHEREAS, Buyer desires to purchase the Real Property and Other
Assets from Seller and to undertake an obligation to (i) assume certain
contractual indemnification and other obligations of Seller which are
specifically agreed to by Buyer; (ii) remediate existing Hazardous Substances
contamination at, under, above, adjacent to and/or emanating to or from the Real
Property and/or, subject to the provisions of Section 10.7 hereof, the Tar Pits
Property;
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and (iii) assume any third party liability associated with the Real Property
and/or the Tar Pits Property, except as expressly excluded, on the terms and
conditions set forth herein.
E. WHEREAS, Buyer is aware that Seller has entered into a Purchase
and Sale Agreement and Joint Escrow Instructions with Ontario Ventures I, LLC, a
Delaware limited liability company, dated October 19, 1999, as amended (the "OVI
Agreement") and that consummation of the Closing is contingent upon termination
of the OVI Agreement.
NOW, THEREFORE, Buyer and Seller (each herein sometimes called a
"Party" and jointly the "Parties") hereby agree as follows:
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Agreement
1. Definitions. In addition to the terms defined in the foregoing Recitals
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and capitalized terms hereinafter defined in this Agreement, for
purposes of this Agreement the terms set forth below shall have the following
meanings:
1.1 "Adjacent Property" means, collectively, the California Speedway
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Property, the MRF Property, the Household Waste Property, Tar Pits Property, the
Budway Property, the Rancho Cucamonga Property, the D.T. Sari Property and the
Maas-Hansen Property, all as more particularly described in Exhibit B attached
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hereto, which properties are deemed for purposes of this Agreement only to be
located adjacent to the Real Property.
1.2 "Agencies" means, collectively, DTSC, RWQCB, the CIWMB and any
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other federal, state or local governmental or regulatory agency, body, board,
commission or other political entity with environmental jurisdiction over the
Property or the Tar Pits Property. Any one of these political entities may
sometimes be referred to as an "Agency".
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1.3 "Approved Title Conditions" shall have the meaning set forth in
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Section 4.1 hereof.
1.4 "Bill of Sale" means a bill of sale in the form of Exhibit C
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attached hereto duly conveying all of the Other Assets to Buyer.
1.5 "Buyer Consent Order" means the DTSC Consent Order with Buyer, or
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Buyer's designee pursuant to Section 15.8 below, in the form of Exhibit X
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attached hereto.
1.6 "Case" means any case or cases opened by DTSC, RWQCB or CIWMB
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with respect to Hazardous Substances contamination at the Real Property,
including, without limitation, the cases listed on Exhibit D hereto.
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1.7 "Cash Equivalent" means a wire transfer of funds or other good
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and immediately available funds.
1.8 "CDC" means Catellus Development Corporation, a Delaware
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corporation.
1.9 "CDC Guaranty" means that certain guaranty dated as of the date
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of the Close of Escrow by CDC in favor of Seller, as described in Section 10.10.
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1.10 "CIWMB" means the California Integrated Waste Management Board.
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1.11 "Close of Escrow" means the date on which the Deed is recorded in
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the Official Records.
1.12 "Closing Date" means July 27, 2000, unless the Closing Date is
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extended pursuant to the provisions of this Agreement. The date scheduled for
the Close of Escrow is the "Closing Date" and the actual date of closing is the
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"Close of Escrow."
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1.13 "Contingency Date" means July 21, 2000, unless extended
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pursuant to Section 3.1.1 or 3.2 below.
1.14 "Corrective Action" means a Corrective Action as defined in
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Section 10.3.3.1 hereof.
1.15 "Deed" means a grant deed in the form of Exhibit F attached
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hereto, duly conveying fee title to the Real Property from Seller to Buyer.
1.16 "Deposit" means the sum of One Hundred Thousand Dollars
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($100,000), and if posted, the Additional Deposit and the Final Deposit. The
terms "Additional Deposit" and "Final Deposit" are defined in Section 3.1.1
hereof.
1.17 "DTSC" means the California Environmental Protection Agency
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Department of Toxic Substances Control and any divisions or officers thereof and
all successors thereto.
1.18 "Environmental Law" means the Comprehensive Environmental
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Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601, et
seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections
6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., the Federal
Water Pollution Prevention and Control Act, 33 U.S.C. Sections 1251 et seq., the
Oil Pollution Act of 1990, Pub. L. 101-380, August 18, 1990, the Safe Drinking
Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code Sections
25249.5-25249.13), the Carpenter-Presley-Tanner Hazardous Substances Account Act
(Cal. Health & Safety Code Sections 25300 et seq.), the California Hazardous
Waste Control Act (Cal. Health & Safety Code Sections 25100 et seq.) and the
California Water Code Sections 13000 et seq., as said Laws have been or may
hereafter be supplemented or amended from time to time, the regulations now or
hereafter promulgated pursuant to said Laws and any other federal, state, county
or local law, statute, rule, regulation or ordinance currently in effect or
subsequently enacted, promulgated or adopted which regulates or proscribes the
use, generation, handling, storage, disposal, presence, cleanup, transportation
or release or threatened release into the environment of any Hazardous
Substances or pertains to health, industrial hygiene and/or the environment.
1.19 "Escrow" means an escrow to be opened with Escrow Holder.
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1.20 "Escrow Holder" shall be and mean Chicago Title Company, 560
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East Hospitality Lane, San Bernardino, California 92408.
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1.21 "Excluded Liabilities" is defined in Section 10.3.2.
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1.22 "Execution Date" means the date on which the last of Buyer and
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Seller provides notice to the other Party that (i) this Agreement has been duly
executed, and (ii) all internal approvals to such execution have been obtained;
provided, however, that if the Execution Date does not occur on or before July
14, 2000, then the Agreement shall be deemed to be null and void.
1.23 "Hazardous Substances" means (i) any element, compound, mixture,
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solution, chemical, material or substance at any time defined as or included in
the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous waste," "acutely hazardous waste," "radioactive
waste," "biohazardous waste," "pollutant," "toxic pollutant," "contaminant,"
"restricted hazardous waste," "infectious waste," "toxic substances," or any
other term or expression intended to define, list or classify substances by
reason of properties harmful to health, safety or the indoor or outdoor
environment (including harmful properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or
"EP toxicity" or words of similar import under any applicable Environmental
Laws); (ii) any oil, petroleum, petroleum fraction, petroleum additive or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; (x) lead-based paint; and (xi) any other chemical, material or
substance, exposure to which is now or in the future prohibited, limited or
regulated by any governmental authority or which may or could pose a hazard to
the health and safety of the owners, occupants or any persons in the vicinity of
the Property or to the indoor or outdoor environment.
1.24 "Heckett" is defined in Section 5.2.4.
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1.25 "Heckett Agreement" is defined in Section 5.2.4.
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1.26 "Improvements" means any and all buildings, structures, systems,
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facilities, fixtures, fences and parking areas located on the Land as of the
Execution Date, including, without limitation, the sewage treatment facility
located on the Land, but not including the mobile office and other fixtures,
including the scale, owned by Heckett, the trailer owned by Johnson Bail Bonds,
the trailer which currently serves as Seller's field office and two trailers
currently located on the Real Property which are owned by a former tenant of
Seller, all of which will be removed from the Real Property prior to the Close
of Escrow (except for the trailer owned by Johnson Bail Bonds, which Seller will
cause to be removed on or before September 15, 2000, which obligation of Seller
will survive the Close of Escrow).
1.27 "Inspections" shall have the meaning set forth in Section 4.2
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hereof.
1.28 "Insurance Policies" means, collectively, the Remediation Stop
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Loss Insurance Policy, the Operations, Maintenance and Monitoring Insurance
Policy and the Real
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Estate Environmental Liability Insurance Policy, as described in Section 10.5
hereof, together with such other environmental insurance policies as may be
agreed upon by the parties pursuant to Section 4.7.
1.29 "IT Contract" is defined in Section 10.4.
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1.30 "ITG" means The IT Group, Inc.
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1.31 "Kaiser Consent Order" means the California Department of Health
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Services (now known as the California Environmental Protection Agency Department
of Toxic Substances Control) Consent Order with Kaiser Steel Resources, Inc.
(now known as Kaiser Ventures, Inc.) dated as of August 22, 1988, as amended by
an Amendment to Consent Order dated November 13, 1997, and an Amendment to
Consent Order dated January 11, 1999.
1.32 "Laws" means all federal, state and local laws, ordinances,
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rules, regulations and orders, including, without limitation, all Environmental
Laws.
1.33 "Material Agreements" shall mean the agreements to be described
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in Exhibit H to be attached hereto.
1.34 "No Further Action Letter" or "NFA" means a letter (or its
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substantial equivalent, including, without limitation, a certificate of
completion) to be issued by the DTSC or another Agency with respect to the Real
Property and the Tar Pits Property, or a portion thereof, stating that no
regulatory action or no further regulatory action need be taken by any party to
meet the clean-up requirements established by the DTSC, other responsible Agency
or applicable Laws for a particular portion of the Real Property or the Tar Pits
Property, subject to certain terms and conditions within such letter (such as
continuing operations and maintenance obligations) which terms and conditions
are consistent with the types of terms and conditions which are customarily
contained in such a letter.
1.35 "Official Records" means the Official Records of San Bernardino
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County, California.
1.36 "Operations, Maintenance and Monitoring Insurance Policy" is
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defined in Section 10.5.
1.37 "Other Assets" means all tangible and intangible assets located
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on the Real Property at the Close of Escrow or used in the operation of the Real
Property, including but not limited to, (a) two diesel locomotives, together
with any and all equipment used to maintain said locomotives; (b) any and all
switching equipment used in the operation of the diesel locomotive switching and
stacking operations which Seller contracts with Western Railroad; (c) copies of
any reports relating to the Real Property which are in the possession or
reasonable control of Seller and can reasonably be retrieved by Seller, which
are not subject to any attorney-client privilege, attorney-work product
privilege or any other privilege (subject to any limitations that may be
applicable to Buyer's ability to rely on any such reports), (d) summaries of all
reports or documents which are the subject of any attorney-client privilege,
attorney-work product privilege or any other privilege subject to establishment
of a mutually acceptable procedure for preserving such privileges, (e) the
Permits (as hereinafter defined) to the extent they can be transferred
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and/or assigned, (f) all other items of personal property, subject to any
limitation that may be applicable to Buyer's ability to rely on any such
personal property, (g) a license in the form attached as Exhibit I hereto to use
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the name "Kaiser Commerce Center," and (h) any rights Seller may have against
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any former tenants or other third parties for costs of future environmental
remediation (and Seller shall provide to Buyer a list of such parties and a copy
of the documents which give rise to any such claims). Buyer acknowledges that
certain pre-October 4, 1988 documents are contained in boxes which are not well-
indexed and which Buyer will have to review at its expense. Notwithstanding the
foregoing, the term "Other Assets" shall not include any personal property owned
by Heckett or any fixtures or personal property excluded from the definition of
"Improvements".
1.38 "OVI Agreement" is defined in Recital E.
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1.39 "Permits" means the Permits listed on Exhibit J attached hereto.
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1.40 "Property" means, collectively, the Real Property and the Other
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Assets.
1.41 "PTR" means the preliminary title report prepared by Title
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Company pursuant to Section 4.1 hereof.
1.42 "Purchase Price" means the sum of Sixteen Million Dollars
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($16,000,000) plus interest accrued thereon at a per annum rate of 8% from July
1, 2000 through and including the date of the Close of Escrow; provided that if
the Close of Escrow occurs after August 14, 2000 as a result of Seller's
extension of the Closing Date, then interest shall accrue only from July 1, 2000
through August 14, 2000.
1.43 "RCRA" means Resource Conservation and Recovery Act.
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1.44 "Real Estate Environmental Liability Insurance Policy" means a
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Real Estate Environmental Liability Insurance Policy, in the form to be attached
hereto as Exhibit K.
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1.45 "Real Property" means the Land shown on Exhibit A-1, together
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with all right, title and interest of Seller, if any, in and to the Improvements
and all privileges, entitlements, easements, rights and appurtenances thereto
including, without limitation, (a) all development rights and air rights
relating to such Real Property, (b) all water rights which are appurtenant to
the Land, (c) all right, title and interest of Seller in and to any streets,
alleys, passages, watercourses, other easements, and other rights-of-way or
appurtenances included in such Real Property as of the Close of Escrow, (d) the
reversions and remainders owned by the Seller which are part of the real
property shown on Exhibit A, and (e) all the estate, right, title, interest,
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property, possession, claim and demand whatsoever, in law and in equity, owned
by Seller, in and to the foregoing and any part thereof. The Parties
acknowledge and agree that (i) the shares of Fontana Union Water Company, a
mutual water company, which are owned by Kaiser Ventures, Inc. and/or its
subsidiary, Fontana Water Resources, Inc., and (ii) the water well located on
the Budway Property, and its related facilities and easement which are currently
used by California Speedway Corporation are not included within the definitions
of Land, Real Property, Property or Other Assets and are also not included
within the subject matter of this Agreement.
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1.46 "Remediation Stop Loss Insurance Policy" means a Remediation Stop
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Loss Insurance Policy, in the form of Exhibit L to be attached hereto.
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1.47 "RWQCB" means the California Regional Water Quality Control Board
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Santa Ana Region.
1.48 "Survey" means the survey prepared pursuant to Section 4.1
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hereof, which survey shall comply with the minimum standard detail requirements
for ALTA/ACSM land title surveys jointly adopted by ALTA and ACSM and including
Items 2, 4, 5 and 10 from Table A thereof.
1.49 "Tar Pits Property" means that approximately four (4) acre parcel
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of real property more particularly described in the applicable portion of
Exhibit B hereto.
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1.50 "Title Company" means Chicago Title Company, 560 East Hospitality
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Lane, San Bernardino, California 92408.
1.51 "Title Documents" means all of the documents referenced in the
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PTR, including, without limitation, any document referenced in the documents
referenced in the PTR.
1.52 "Title Policy" means an ALTA extended coverage owner's policy of
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title insurance together with endorsements requested by Buyer, issued by the
Title Company, dated as of the Close of Escrow, insuring Buyer as owner of the
Real Property, with liability limits in an amount equal to the sum of the
Purchase Price and the known remediation costs which Buyer and Seller
acknowledge is currently estimated to be approximately $31,000,000, and showing
that title to the Real Property is vested in Buyer subject only to the Approved
Title Conditions.
1.53 "Zurich Entities" means, collectively, Zurich Insurance Company,
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Zurich American Insurance Company and Steadfast Insurance Company. A "Zurich
Entity" means any of the foregoing.
2. Purchase and Sale. Seller agrees to sell or cause to be sold to Buyer,
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and Buyer agrees to purchase, the Property, upon the terms and conditions set
forth in this Agreement, for the Purchase Price, subject to the prorations,
reductions and credits hereinafter set forth.
3. Consideration.
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3.1 Deposit.
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3.1.1 Delivery by Buyer. Buyer has delivered the Deposit to
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Seller.
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 the July 21, 2000
notice of such election and delivering to Escrow Holder on or before July 27,
2000 immediately available funds in the amount of Five Hundred Thousand Dollars
($500,000) (the
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"Additional Deposit") 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
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.
3.1.1.2 If Buyer has extended the Contingency Date
under Section 3.1.1.1 and the Deed Restriction, the Omnibus Assignment and
Assumption Agreement, the CDC Guaranty, the Insurance Policies and the IT
Contract have not been finalized by August 4, 2000, Buyer shall be entitled to
extend the Contingency Date to August 11, 2000 and the Closing Date to August
14, 2000, by delivering to Seller and Escrow Holder on or before the August 4,
2000 notice of such election and, if the Additional Deposit has then been
delivered under Section 3.1.1.1, by causing Escrow Holder to release to Seller
the amount of Seventy Five Thousand Dollars ($75,000) from the Additional
Deposit or, if the Additional Deposit has not then been delivered, to release to
Seller Seventy Five Thousand Dollars ($75,000) when the Additional Deposit or
any portion thereof is deliverable under Section 3.1.1.1.
3.1.1.3 If Buyer has extended the Contingency Date
under Sections 3.1.1.1 and 3.1.1.2 and the Deed Restriction, Omnibus Assignment
and Assumption Agreement, the CDC Guaranty, the Insurance Policies and the IT
Contract have not been finalized by August 11, 2000, Buyer shall be entitled to
extend the Contingency Date to September 11, 2000 and the Closing Date to
September 15, 2000 by delivering to Seller and Escrow Holder on or before August
11, 2000 notice of such election and causing Escrow Holder to release to Seller
the remainder of the Additional Deposit if the Additional Deposit has then been
delivered or, if the Additional Deposit has not then been delivered, to release
the remainder of the Additional Deposit when the Additional Deposit or any
portion thereof is deliverable under Section 3.1.1.1. If Buyer exercises its
right to extend the Contingency Date and Closing Date under this Section
3.1.1.3, Buyer shall also deliver to Escrow Holder on or before August 14, 2000
immediately available funds in the amount of One Million Thousand Dollars
($1,000,000) (the "Final Deposit") provided that, if, by August 14, 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 Final 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 be required to
post the Final Deposit if Buyer exercised its extension rights hereunder and has
not terminated this Agreement under Section 4.7 before Seller has made the
deliveries described above. Upon delivery of the Final Deposit, Escrow Holder
shall immediately release the Final Deposit to Seller.
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3.1.1.4 Seller shall be entitled to extend the
Closing Date pursuant to Section 5.1.
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, 5.2.19 or 5.2.20, 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.
3.2 Extension of Contingency Date. Except as otherwise expressly
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provided herein, the Contingency Date may be extended only pursuant to a written
amendment to this Agreement executed by both Buyer and Seller.
3.3 Purchase Price. At least one (1) business day prior to the
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Closing Date, Buyer shall deliver the Purchase Price to Escrow Holder, by Cash
Equivalent, less the amount of the Deposit (and interest accrued thereon). Such
sum shall be payable to Seller by Cash Equivalent through Escrow at the Close of
Escrow.
4. Investigations by Buyer. Prior to the Execution Date Buyer conducted
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investigations as to the Property and the Adjacent Property and may continue to
conduct such investigations prior to the Close of Escrow. Buyer acknowledges,
however, that Buyer shall not have the right to terminate this Agreement as a
result of any such investigations. Buyer's sole rights to terminate shall be for
a failure of a Condition Precedent in favor of Buyer, a material default by
Seller hereunder, or as provided in Section 4.1, 4.7 or Section 13. The Parties
acknowledge that Seller does not control all of the Adjacent Property and that
Seller shall be required only to use commercially reasonable efforts to obtain
access for Buyer and its agents, over those portions of the Adjacent Property
which Seller does not control.
4.1 Conditions of Title; Survey. Seller has (a) caused the Title
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Company to deliver to Seller and Buyer a preliminary title report dated as of
April 1, 2000 (the "PTR") for the Real Property, prepared by Title Company,
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together with copies of all of the Title Documents; and (b) engaged a surveyor
at Seller's expense to prepare an ALTA survey of the Real Property (including,
without limitation, any appurtenant easements on the Adjacent Properties) (the
"Survey"), a copy of which has been delivered to Buyer and Seller. Seller shall
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cause the Survey to be certified to Buyer and the Title Company and a final copy
of such Survey to be delivered to Buyer and Title Company in time for the Title
Company to deliver the Title Policy at the Close of Escrow. Following Buyer's
review of the PTR and Survey and Buyer's delivery of written notice to Seller
describing those matters disapproved by Buyer, Buyer and Seller have agreed that
(i) except as noted by Buyer below or in the Pro Forma Policy attached hereto as
Exhibit DD (the "Pro Forma Policy"), all matters and exceptions set forth in the
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Pro Forma Policy are hereby approved by Buyer, subject to Title Company's
issuance of a Title Policy in the form of the Pro Forma Policy attached hereto
as Exhibit DD; (ii) Buyer hereby approves the granting of a road easement
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substantially in the form set forth in Exhibit M attached hereto; (iii) with
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respect to Exception No. 66 in the Pro Forma Policy, Seller shall use reasonable
efforts to obtain confirmation from The California Speedway Corporation that the
present three tracks located on the Rail Switching Parcel (shown as Parcel K in
the legal description attached hereto as Exhibit A) are acceptable or Seller
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will decrease the number of tracks to one; (iv) Seller will reasonably cooperate
with Buyer's efforts to finalize the dedication of Napa Street over the Southern
California Edison property, at no cost to Seller; (v) pursuant to the Deed,
Seller will assign to Buyer all of Seller's rights and obligations with respect
to the utility easement described in Instrument No. 95-404558; (vi) prior to the
Close of Escrow, Seller will cause Speedway Development Corporation to deliver
quitclaim deeds with respect to the access easements referenced as Exception
Nos. 22 and 55 in the Pro Forma Policy or Seller will deliver such notices to
terminate such easements as are required to terminate such easements in
accordance with their terms; (vii) Seller will use reasonable efforts to obtain,
prior to the Close of Escrow, written subordination agreements from any lien
holders whose lien rights and security interests are, as of the Close of Escrow,
senior and prior to Buyer's rights to and under the appurtenant easements
described in Exhibit A attached hereto, and (viii) Seller will use best efforts
---------
to obtain and record, on or prior to Close of Escrow, easement deeds granting
Buyer access for remediation purposes over the California Speedway Property, the
MRF Property, the Tar Pits Property and the Household Waste Property, all
substantially in the form of Exhibit EE attached hereto.
----------
Notwithstanding anything to the contrary, Seller shall be obligated to
remove any monetary encumbrances (except those created by Buyer or Buyer's
affiliates) which encumber Seller's fee title interest in the Real Property
other than liens for real property taxes or assessments which are not delinquent
and other than monetary encumbrances, if any, to be recorded at the Close of
Escrow and which are arranged by Buyer, as well as to cause the following
exceptions shown in the PTR which have been disapproved by Buyer to be removed
prior to the Close of Escrow: 1-9, 22, 55, 110, 116 (general notes), except that
with respect to the item described in exception 55, if a notice of termination
is delivered in accordance with clause (vi), above, such item shall not be
required to be removed so long as the Title Company notes in the final title
policy the effective date of termination. All matters not objected to by Buyer
or waived by Buyer pursuant hereto, any documents or instruments to be recorded
pursuant to the terms of this Agreement, and all financing arranged by Buyer,
shall collectively be referred to as the "Approved Title Conditions."
-------------------------
Notwithstanding anything to the contrary contained herein, if any new
covenant, condition, restriction, reservation, easement or right of way
affecting the use and occupancy of the Real Property (other than the
aforementioned road easement shown on Exhibit M) (each, a "New Exception")
--------- -------------
becomes of record after the date hereof but prior to the Closing Date (other
10
<PAGE>
than an exception caused by Buyer or its members or ultimate members or
consented to by Buyer or its members or ultimate members or Buyer's affiliates),
(x) if such New Exception was caused directly or indirectly by or with the
consent of Seller and without the consent of Buyer, then Seller shall cause such
New Exception to be removed prior to the Close of Escrow; (y) if such New
Exception was not caused directly or indirectly by either Buyer or Seller, then
Seller may, but shall not be obligated to, remove such New Exception within five
(5) calendar days after receipt of notice of such New Exception, and, if
necessary, the Closing Date shall be extended for five (5) calendar days to
permit any such removal. In the event Seller elects not to remove such New
Exception within such period, Buyer shall have the right, by written notice to
the Seller and Escrow Holder within five (5) calendar days after receipt of
written notice from Seller that Seller has elected not to remove such New
Exception, to accept such New Exception or terminate this Agreement, in which
case the entire Deposit (together with any interest accrued thereon while in
Escrow) shall be returned to Buyer, Buyer and Seller shall each pay one-half
(1/2) of any Escrow or Title Company cancellation fees, and neither Party shall
have any further obligation hereunder, except for Buyer's obligations set forth
in the Entry Permit (if any), and Buyer's and Seller's obligations under
Sections 15.2, 15.9 and 15.16.
4.2 Inspections. Subject to the limitations set forth in this
-----------
Section 4.2, prior to the date hereof Buyer has been conducting and shall
continue to have the right to make, or cause to be made, at Buyer's sole cost
and expense, such inspections (including, without limitation, surveys, studies,
inspections and investigations) (collectively, "Inspections") of the Real
------------
Property as shall be deemed necessary, desirable or appropriate by Buyer,
subject to Buyer's execution and delivery of an Entry Permit substantially in
the form of Exhibit N attached hereto, and subject to Seller and Buyer agreeing
---------
on a protocol for all such Inspections prior to conducting any Inspection.
Subject to the terms and conditions of the aforementioned protocol, such
Inspections may include drilling, ground penetration or any other invasive
physical testing or sampling of the soils deemed necessary or desirable by
Seller and Buyer. At Seller's option and expense, a representative of Seller
may be present during all sampling and other physically invasive soils testing
of the Real Property. At the option of any such representative of Seller, each
sample taken by Buyer and/or its agents shall be split, with the split sample
being sent to a laboratory of Seller's selection. Seller shall be entitled to
receive the results of all testing performed by Buyer and/or its agents and
shall also be entitled to receive copies of all draft reports and final reports
prepared by or at the request of Buyer. Seller shall have the right to approve
or disapprove in its sole discretion any proposed inspections or testing of
groundwater which Buyer and/or its agents wants to perform on the Real Property
and the Adjacent Property.
4.3 Documents, Files and Records. Seller has previously made
----------------------------
available and shall continue to make available prior to Closing for Buyer's
review and copying at: (i) Seller's offices at 3633 Inland Empire Boulevard,
Suite 850, Ontario, California 91764; (ii) that certain office maintained by
Seller and which is commonly known as the Mill Site Office, and (iii) the
warehouse located in San Bernardino, California at which Seller maintains
records, all of the following reports, documents and files relating to the
Property which are in Seller's possession, and can be reasonably retrieved by
Seller:
4.3.1 Permits. The permits listed on Exhibit J.
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11
<PAGE>
4.3.2 Reports. Any and all structural, mechanical, physical,
-------
environmental or geological reports concerning the Real Property which have been
prepared at Seller's request or are within Seller's possession or reasonable
control.
4.3.3 Case Documents. Any and all records, files, documents,
--------------
correspondence and other information relating to the Case(s), the Kaiser Consent
Order, the Real Property or the use, development or condition thereof.
4.3.4 Material Agreements. Any and all written agreements,
-------------------
indemnities, covenants, restrictions, leases or other contracts currently in
effect or which will be in effect at any time after the Close of Escrow, entered
into by Seller, its affiliates, subsidiaries or its predecessors-in-interest
which affect the Real Property or could be binding upon Buyer after the Close of
Escrow.
4.3.5 Litigation Files. Subject to Section 4.3.8, any and all
----------------
pleadings, records, files, documents, correspondence and other information
relating to the Ontario Litigation, the Mushegain Litigation and any other
pending or threatened suits or proceedings related to the Real Property and/or
the Tar Pits Property listed in Exhibit O attached hereto.
---------
4.3.6 Operational Documents. Any and all service and
---------------------
maintenance agreements, tax bills, utility statements, leases, licenses and
agreements relating to the Real Property.
4.3.7 Other Documents. In addition to the documents otherwise
---------------
made available to Buyer pursuant to this Section 4.3, Buyer and its
representatives shall have the right of access during reasonable business hours
to all files, books and records and correspondence maintained by Seller and
Seller's environmental consultants relating to the physical and environmental
condition and the development, ownership, use, management, maintenance and
operation of the Real Property and the Adjacent Property, other than files,
books and records and correspondence which are subject to any attorney-client
privilege, attorney-work product privilege or any other privilege or which
relate to the Excluded Liabilities. Seller shall also make available to Buyer
all documents, studies and final or near final financial analyses (and an
explanation of the assumptions used in such analyses) relating to the approved
uses of the Property.
4.3.8 Privileged Documents. Seller hereby confirms to Buyer
--------------------
that all reports, documents, files, correspondence, etc. which are in the
possession or reasonable control of Seller and can reasonably be retrieved by
Seller (including those described in Section 4.6 hereof) have been made
available to Buyer hereunder. Seller has not to date withheld any documents
based on the attorney-client privilege, the attorney-work product privilege or
any other privilege, and has not to date identified any document for which such
privilege(s) would apply.
4.4 Development Rights. Prior to the date hereof Buyer has had the
------------------
right to determine and shall continue to have the right to determine, at Buyer's
sole expense, whether the Real Property is suitable for Buyer's (or Buyer's
prospective tenants' or purchasers') intended use. Without limiting the
foregoing, Buyer shall have the right to review all applicable land use,
12
<PAGE>
subdivision, zoning, building and access regulations, covenants, conditions and
restrictions, entitlements and development rights applicable to the Real
Property, including, but not limited to (i) the CALTRANS Etiwanda interchange
design, and (ii) the Kaiser Commerce Center Specific Plan and Truck Stop
Conditional Use Permit adopted by the San Bernardino County Board of
Supervisors. Buyer and its representatives shall have the right to
independently contact governmental agencies to discuss Buyer's development plans
for the Real Property; provided, however, that Buyer shall give Seller forty-
-------- -------
eight (48) hours' written notice of any proposed meetings or any proposed
telephone conferences. Seller shall have the right to be present at any such
meetings or on any such telephone conferences.
4.5 Remediation Requirements. Prior to the Execution Date Buyer
------------------------
began its investigation and analysis of the remediation requirements applicable
to the Real Property and the Adjacent Property and shall continue to use
diligent efforts to determine, at Buyer's sole expense, the remediation
requirements applicable to the Real Property and the Adjacent Property. Without
limiting the foregoing, Buyer shall review all Environmental Laws applicable to
the Real Property and the Adjacent Property. Buyer and its
consultants/representatives shall be permitted to independently contact
governmental agencies to discuss Buyer's remediation plans for the Real
Property. Buyer shall give Seller forty-eight (48) hours' written notice of any
proposed meetings or any proposed telephone conferences and Seller shall have
the right to be present at any such meetings or on any such telephone
conferences.
4.6 Adjacent Property. Seller acknowledges that Buyer desires to
-----------------
review any and all available reports, files, documents and other information
regarding the environmental and physical condition of the Adjacent Property, in
order for Buyer to fully evaluate the potential remediation methods that will or
may be required to remediate the Real Property and the Tar Pits Property
pursuant to Article 10 below and to assume certain of Seller's environmental
obligations under the Material Agreements pursuant to Section 10.6, below. In
addition to making available to Buyer copies of all reports, files, documents
and other information in Seller's possession or reasonable control and which
Seller can reasonably retrieve regarding the Adjacent Property and which are not
subject to the attorney-client privilege, attorney-work product privilege, or
any other privilege (subject to the requirements of Section 4.3.8 hereof),
Seller shall use commercially reasonable efforts to obtain any information
reasonably requested by Buyer regarding the environmental or physical condition
of the Adjacent Property. In addition, Seller agrees to use commercially
reasonable efforts to obtain the permission of the owners of the Adjacent
Property to any proposed inspections or investigations of such Adjacent Property
by Buyer or its consultants, including any invasive drilling, sampling or other
inspections deemed reasonably necessary by Buyer. Buyer acknowledges that
Seller may be unable to obtain access for Buyer or its consultants to the
Adjacent Property or to obtain permission for Buyer or its consultants to
investigate the Adjacent Property.
4.7 Other Approvals. Prior to the Contingency Date, the Parties shall
---------------
work together in good faith to negotiate and revise the IT Contract, the
Insurance Policies, the CDC Guaranty, the Omnibus Assignment and Assumption
Agreement and all other Exhibits hereto which are not attached to this Agreement
on the Execution Date as needed so they are reasonably acceptable to both Buyer
and Seller and to negotiate such modifications to Article 10 as are necessary to
conform such provisions of the Agreement to the final agreements with respect to
the Exhibits. If, after good faith negotiations, all of such Insurance Policies,
the IT Contract and
13
<PAGE>
all other Exhibits hereto and such amendments to Article 10 are not so agreed
upon on or prior to the Contingency Date, then either Buyer or Seller may
terminate this Agreement by delivering written notice of termination of this
Agreement to Escrow Holder and the other party. If the Agreement is terminated
under this Section 4.7, the Deposit (together with any interest which has
accrued thereon, less any amounts released to Seller in accordance with the
terms hereof) shall be returned to Buyer, Escrow shall be canceled, Seller and
Buyer shall each pay one-half ( 1/2) of all Title Company and Escrow
cancellation fees, and Buyer and Seller shall have no further obligations to
each other hereunder, except as otherwise expressly set forth herein. In that
event, Buyer shall return to Seller all documents delivered to Buyer at the
request of Seller. Buyer's failure to deliver written notice of Buyer's election
to terminate this Agreement in accordance with this Section 4.7 shall constitute
a waiver of Buyer's right to disapprove any matters set forth in this Section
4.7.
5. Escrow. The Parties have opened an escrow account with Escrow Holder
------
for the consummation of the transactions described in this Agreement. The
Parties shall execute such additional documents and instructions as may be
reasonably requested by Escrow Holder; provided, however, that any such
-------- -------
additional instructions shall not supersede this Agreement and in any event this
Agreement shall control unless otherwise provided in a writing executed by both
Parties hereto.
5.1 Closing. The Closing shall be conducted through Escrow on the
-------
Closing Date, unless otherwise agreed in writing by Buyer and Seller. If by the
Closing Date, Seller has not obtained (a) the consents described in Section
5.2.20, (b) termination of the Kaiser Consent Order and release of Seller's
financial assurances, (c) the remediation easements described in Section 5.2.18,
and (d) the sewer services agreement with Speedway Development Corporation
described in Section 5.2.17, then Seller shall be entitled to extend the Closing
Date until such items have been obtained; provided that in no event shall the
--------
Closing Date be extended beyond September 14, 2000. Buyer shall be entitled to
extend the Closing Date pursuant to Section 3.1.1. In addition, if prior to the
Closing Date, an action or proceeding at law or in equity before any court or
governmental body has been filed against Seller or Buyer, or any of their
respective affiliates, to enjoin the transaction contemplated herein, then the
Closing Date shall be extended to a date not later than September 14, 2000, and
Buyer and Seller shall reasonably cooperate with each other to remove or bond
against any lis pendens which may have been filed or to cause to be dismissed
any order enjoining the transaction contemplated herein.
5.2 Conditions Precedent to Buyer's Obligations. Buyer's obligations
-------------------------------------------
to close Escrow shall be conditioned on the fulfillment of each of the following
conditions on the date herein specified and in any event prior to the Closing
Date. Upon the Close of Escrow, all conditions set forth herein shall be deemed
to have been either satisfied or waived. Seller shall cause the conditions set
forth in this Section 5.2 which are within its control to be satisfied and shall
use commercially reasonable efforts to cause the conditions set forth in this
Section 5.2 which are not within its control to be satisfied.
5.2.1 This Agreement has not been terminated pursuant to any
provision hereof.
14
<PAGE>
5.2.2 Seller has deposited or caused to be deposited, into
Escrow the Deed, duly executed and acknowledged by Seller, conveying the Real
Property to Buyer subject only to (i) the Approved Title Conditions, (ii) real
property taxes and assessments affecting the Real Property not delinquent as of
the Closing Date, including, but not limited to, the lien of any supplemental
taxes levied after the Close of Escrow, (iii) any New Exceptions approved by
Buyer or caused by Buyer, and (iv) such other exceptions to title as Buyer may
expressly and specifically approve in writing between the date hereof and the
Closing Date.
5.2.3 Title Company is committed to deliver to Buyer the Title
Policy as of the Close of Escrow. Seller shall deliver to Title Company such
instruments, documents, releases and instructions as Title Company may
customarily require in order to issue the Title Policy.
5.2.4 Seller has terminated any leases or other contracts
permitting the use or occupancy of any portion of the Real Property, pursuant to
arrangements whereby the occupants are to be off the Real Property on or before
the Closing Date, except for that certain agreement (the "Heckett Agreement")
with Heckett-Multiserve ("Heckett"), for slag mining and processing and the
lease with Johnson Bail Bonds. After the Close of Escrow, Buyer intends to
exercise its right under the Heckett Agreement to cause Heckett to relocate its
operations to another area of the Real Property. Buyer shall pay the first
$250,000 of the cost of such relocation, Seller shall pay (promptly reimburse
Buyer for the payment of) the second $250,000 of such costs and Buyer shall pay
the remainder of such costs. Seller's obligations hereunder shall survive the
Close of Escrow. Seller shall cause Johnson Bail Bonds to vacate the Real
Property on or before September 15, 2000.
5.2.5 Seller has terminated all contracts which will be
binding on Buyer, the Real Property (or any portion thereof) after Close of
Escrow and entered into by Seller, its subsidiaries, affiliates or predecessors
in interest, except for (a) contracts which provide for termination upon thirty
(30) days' prior notice, in which case Seller shall send such notice of
termination prior to Close of Escrow, (b) those Material Agreements or any
portion thereof expressly assumed by Buyer pursuant to the Omnibus Assignment
and Assumption Agreement and (c) the Approved Title Conditions (as defined in
Section 4.1).
5.2.6 There has been no material adverse change in the
physical condition of the Real Property since the Contingency Date.
5.2.7 Seller has delivered to Escrow Holder a Bill of Sale and
the License Agreement in the form of Exhibit I attached hereto, each duly
---------
executed by Seller.
5.2.8 Seller has delivered to Escrow Holder a certificate of
non-foreign status, duly executed by Seller.
5.2.9 Seller has delivered to Escrow Holder an "Omnibus
-------
Assignment and Assumption Agreement" in the form to be attached as Exhibit P
----------------------------------- ---------
attached hereto, duly executed by Seller.
5.2.10 Seller has delivered to Escrow Holder the "MRF
---
Agreement" in the form to be attached as Exhibit AA hereto, duly executed by
--------- ----------
Seller, Kaiser Recycling
15
<PAGE>
Corporation, West Valley Recycling & Transfer, Inc., and West Valley MRF, LLC,
together with each of the easements to be executed in connection therewith (the
"MRF Easements"), each duly executed by West Valley MRF, LLC and acknowledged;
-------------
or, in the alternative, Buyer and Seller have agreed upon the provisions of that
certain Members Operating Agreement of West Valley MRF, LLC, dated June 19,
1997, and other agreements in connection with the West Valley MRF to be assigned
to Buyer as a Material Agreement.
5.2.11 Seller has delivered to Escrow Holder an "Assignment and
--------------
Assumption of Certain Lease Rights" in the form of Exhibit BB attached hereto,
---------------------------------- ----------
duly executed by Seller.
5.2.12 Seller has delivered to Escrow Holder a certificate, duly
executed by Seller, certifying that Seller is authorized to enter into this
Agreement, consummate the transactions contemplated hereby, perform its
obligations hereunder and execute and deliver any and all documents necessary or
appropriate to accomplish the foregoing.
5.2.13 Seller has delivered to Escrow Holder certified
resolutions of the Boards of Directors of each Seller authorizing all of the
transactions contemplated by this Agreement.
5.2.14 Seller has delivered to Escrow Holder an incumbency
certificate with respect to those officers of Seller executing any documents or
instruments in connection with the transactions contemplated herein.
5.2.15 The conveyance of the Real Property shall not violate the
California Subdivision Map Act.
5.2.16 Seller's representations and warranties set forth in
Article 7 of this Agreement are true and correct in all material respects: (i)
as of the time made, (ii) on the Closing Date, and (iii) as of the Close of
Escrow, as if made on each of the dates thereof, and Seller has duly performed
each and every undertaking and agreement to be performed by it pursuant to the
terms of this Agreement as of the Close of Escrow; provided, however, that if
-------- -------
there has been a change in circumstances so that a representation or warranty is
no longer correct, then Seller may, at its election, provide an indemnification
in form and substance reasonably acceptable to Buyer against such changed
circumstance, in which case this condition of Closing shall be deemed satisfied.
Provided, further, that in the event that an event occurs which would cause
Seller's representations and warranties set forth in Sections 7.2 or 7.11 to be
untrue, and such event does not involve a lawsuit against Seller which Seller
could have reasonably avoided such as by taking a reasonable action or making a
reasonable payment, and Seller has no control over such event, then Buyer shall
have the right to terminate this Agreement within fourteen (14) days after
learning the specifics of such event, in which case Seller shall cause the
Deposit to be refunded to Buyer and Seller shall reimburse Buyer for all of its
out-of-pocket expenses not to exceed $850,000, incurred to the date of
termination in connection with the within transaction, but Seller shall not be
deemed to be in breach of this Agreement.
16
<PAGE>
5.2.17 Seller shall deliver a written agreement in form and
substance acceptable to Buyer, which shall provide, in part, that The California
Speedway Corporation (i) has terminated its right of first refusal with respect
to the transaction contemplated hereby, (ii) permanently waives any option
rights and/or rights to approve or disapprove sales of the sewer treatment
facility, (iii) permanently waives any right under any future right of first
refusal to acquire the sewer treatment facility at a discounted price, (iv)
agrees that, if it should exercise its right of first refusal as to a future
sale of the sewer treatment facility, it shall provide sewer services at
reasonable rates to the Property and shall upgrade the facility as necessary to
accommodate Buyer's development of the Real Property so long as Buyer or Buyer's
successors pay their fair share of such upgrades, taking into consideration the
increased revenue to The California Speedway Corporation as a result of the
increased capacity of the facility after the improvements. The agreements of the
California Speedway Corporation shall be binding on successors and assigns. A
memorandum of the agreement must be recorded in the Official Records prior to or
concurrently with the Close of Escrow.
5.2.18 Seller has delivered to Escrow Holder easement agreements
granting Buyer access for remediation purposes over the California Speedway
Property, the Tar Pits Property, the MRF Property and the Household Waste
Property, in the form to be attached as Exhibit EE hereto, duly executed by
----------
Speedway Development Corporation, West Valley MRF, LLC or Kaiser Ventures, Inc.,
as applicable; or, in the alternative, Seller has delivered to Buyer an
indemnity in a form acceptable to Buyer in its reasonable discretion whereby
Seller agrees to indemnify Buyer against all reasonable costs (including
attorneys' fees, but excluding Buyer's and Buyer's affiliates' internal overhead
costs) associated with Buyer obtaining access for remediation purposes over the
California Speedway Property, the MRF Property, the Tar Pits Property and the
Household Waste Property.
5.2.19 The OVI Agreement shall have been terminated.
5.2.20 Seller shall have delivered written consents to the
transactions contemplated hereby, in form and substance reasonably acceptable to
Buyer, from Union Pacific Railroad, Burlington Northern Santa Fe Railroad, The
California Speedway Corporation, Penske MotorSports, Inc., the MRF and Heckett.
5.3 Conditions Precedent to Seller's Obligations. Seller's
--------------------------------------------
obligations to close Escrow shall be conditioned on the fulfillment of each of
the following conditions on the date herein specified and in any event prior to
the Closing Date. Buyer shall cause the conditions set forth in this Section 5.3
which are within its control to be satisfied, and shall use commercially
reasonable efforts to cause the conditions set forth in this Section 5.3 which
are not within Buyer's control to be satisfied.
5.3.1 This Agreement has not been terminated pursuant to any
provision hereof.
5.3.2 Buyer has deposited into Escrow the Purchase Price in Cash
Equivalent, together with such additional sums as may be required to pay Buyer's
share of Escrow and closing costs and expenses as adjusted by the net prorations
and credits hereunder for disbursement as provided herein.
17
<PAGE>
5.3.3 Buyer has delivered to Escrow Holder original counterparts
of the Bill of Sale, the License, the Omnibus Assignment and Assumption
Agreement, the Assignment of Certain Lease Rights, the MRF Agreement, the MRF
Easements and the Deed, duly executed by Buyer and acknowledged, where
appropriate.
5.3.4 Buyer has delivered to Escrow Holder the original CDC
Guaranty, as more particularly described in Section 10.10 below, duly executed
by CDC.
5.3.5 Buyer has delivered to Escrow Holder one duplicate
original of each of the binders for the Insurance Policies, to be effective as
of the Close of Escrow.
5.3.6 Buyer has delivered to Escrow Holder: (a) a duplicate
original of the IT Contract in the form of Exhibit Q attached hereto, duly
---------
executed by ITG, LandBank (as applicable) and Buyer; and (b) a performance and
completion bond for the work to be performed by ITG on which Seller is a named
obligee with Buyer to have the primary right to enforce the bond and a multiple
obligee agreement. Seller will have enforcement rights if (i) Buyer fails to
exercise its enforcement rights at least fifteen (15) days prior to the
expiration of the bond, or (ii) within sixty (60) days after Seller has given
notice to Buyer to exercise its rights under the bond if Buyer has failed to
exercise such rights within such sixty (60) days, or (iii) if Buyer is in
Default (as hereinafter defined).
5.3.7 Buyer has delivered to Escrow Holder a certificate
certifying that Buyer is authorized to enter into this Agreement, consummate the
transactions contemplated hereby, perform its obligations hereunder and execute
and deliver any and all documents necessary or appropriate to accomplish the
foregoing. Buyer has delivered to Escrow Holder a certificate certifying that
CDC is authorized to enter into the CDC Guaranty, consummate the transactions
contemplated therein, perform its obligations thereunder and execute any and all
documents necessary or appropriate to accomplish the foregoing.
5.3.8 Buyer has delivered to Escrow Holder certified resolutions
of the Members of Buyer authorizing all of the transactions contemplated by this
Agreement. Buyer has delivered to Escrow Holder certified resolutions of CDC
authorizing the CDC Guaranty.
5.3.9 Buyer has delivered to Escrow Holder an incumbency
certificate with respect to those officers of Buyer executing any documents or
instruments in connection with the transactions contemplated herein. Buyer has
delivered to Escrow Holder an incumbency certificate with respect to those
officers of CDC executing the CDC Guaranty.
5.3.10 Buyer's representations and warranties in this Agreement
are true and correct in all material respects: (i) as of the time made, (ii) on
the Closing Date, and (iii) as of the Close of Escrow, as if made on each of the
dates thereof, and Buyer has duly performed each and every undertaking and
agreement to be performed by it as of the Closing Date hereunder, and there has
been no material change in the financial condition of ITG, the Zurich Entities
or the bonding company which will issue the bonds described in Section 10.4.
5.3.11 The OVI Agreement shall have been terminated.
18
<PAGE>
5.3.12 The Kaiser Consent Order has been terminated on terms
reasonably acceptable to Seller and any financial assurances provided by Kaiser
to DTSC in connection with the Kaiser Consent Order have been terminated.
5.3.13 Buyer and DTSC have executed the Buyer Consent Order
substantially in the form of Exhibit X attached hereto.
---------
5.4 Actions by Escrow Holder. When Escrow Holder has received all
------------------------
documents and funds identified in this Article 5 and has received written
notification from Buyer and Seller that all conditions to closing to be
satisfied outside of Escrow have been satisfied or waived, then, and only then,
Escrow Holder shall promptly and concurrently:
5.4.1 Disburse all funds deposited with Escrow Holder by Buyer
and Seller as follows:
5.4.1.1 Deduct all items chargeable to the account of Seller
pursuant hereto;
5.4.1.2 Disburse the balance of the Purchase Price to Seller
promptly upon the Close of Escrow;
5.4.1.3 Disburse the premiums for the Insurance Policies to
the applicable insurance companies;
5.4.1.4 Disburse the premium for the Title Policy to Title
Company; and
5.4.1.5 Disburse such other closing costs as may be
required.
5.4.2 Cause the following documents to be recorded in the
following order: (i) the Deed; (ii) the MRF Easements; then (iii) any other
documents which the Parties hereto may mutually direct in writing to be recorded
in the Official Records; obtain conformed copies of all recorded documents for
distribution to the Parties; and cause applicable documentary or realty transfer
taxes to be paid on the Property.
5.4.3 Direct the Title Company to issue the Title Policy to
Buyer.
5.4.4 Deliver to each Party fully executed originals of any
documents (or copies thereof) deposited into Escrow by the other Party pursuant
hereto, and deliver the duplicate IT Contract, the original performance and
completion bond, the CDC Guaranty and the duplicate original binders for the
Insurance Policies to Seller.
5.5 Payment of Closing Costs. Seller shall pay the cost of the
------------------------
Survey and the premium for a standard CLTA owner's policy of title insurance,
one-half (1/2) of all Escrow and recording and filing fees incurred in
connection with the documents to be delivered or recorded hereunder, and all
applicable documentary and realty transfer taxes. Buyer shall pay the costs of
the Title Policy and any endorsement thereto not paid for by Seller pursuant to
the foregoing sentence and one-half (1/2) of all Escrow and recording and
filing fees incurred in connection with
19
<PAGE>
the documents to be delivered or recorded hereunder. Each Party shall pay its
own attorneys' fees and costs. Seller and Buyer shall each pay one-half ( 1/2)
of any other closing expenses not expressly set forth above as allocated to one
Party.
5.6 Prorations. Subject to the other provisions of this Section 5.6,
----------
rents, property taxes, utility charges, service agreements and permit fees (to
the extent such permits are transferable to Buyer) for the Real Property shall
be prorated as of 11:59 p.m. on the day immediately preceding the Close of
Escrow. Not less than five (5) business days prior to the Closing Date, Escrow
Holder shall submit to Buyer and Seller for their approval a tentative
prorations schedule showing the categories and amounts of all prorations
proposed. Prior to the Closing Date, the parties shall approve a final
prorations schedule which shall be prepared by Escrow Holder prior to the
Closing Date and upon approval, the parties shall deliver the same to Escrow
Holder. If, within six (6) months following the Close of Escrow, either Party
discovers that the prorations statement is not accurate for any reason, it shall
notify the other Party of such inaccuracy and the Parties shall promptly make
any adjustment required. Neither Party shall be obligated to adjust any
prorations after such six (6) month period.
5.6.1 Property Taxes. All real and personal property and ad
--------------
valorem taxes, if any, whether payable in installments or not, including but not
limited to, all supplemental taxes attributable to the period prior to the Close
of Escrow for the tax year in which the Close of Escrow occurs, shall be
prorated to the Close of Escrow, based on the latest available tax rate and
assessed valuation. If the amount of any installment of real property taxes is
not known as of the Close of Escrow, then a proration shall be made by the
Parties based on a reasonable estimate of the real property taxes applicable to
the Real Property and the Parties shall adjust the proration when the actual
amount becomes known upon the written request of either Party made to the other.
All bonds or special assessments against the Real Property which relate to
Mello-Roos or other special assessment districts shall be paid by Seller. Buyer
acknowledges that such real property tax bills do not contain any special
assessments which relate to Mello-Roos or other special assessment districts.
All other assessments shall be prorated as of the Close of Escrow.
5.6.2 Utility Charges. All utility charges shall be prorated as
---------------
of the Close of Escrow and Seller shall obtain a final billing therefor. All
utility security deposits, if any, shall be retained by Seller.
5.6.3 Service Contracts. All amounts payable under service
-----------------
contracts which will continue in effect following the Close of Escrow shall be
prorated as of the Close of Escrow.
5.6.4 Other Prorations. At Closing, in addition to any other
----------------
credits or adjustments provided for herein (including, without limitation, any
adjustments provided for in Section 10.3.7), Buyer shall receive (i) a credit
against the Purchase Price in the amount of Four Hundred Forty Thousand Dollars
($440,000) for grading issues discovered by Buyer; and (ii) if Buyer and Seller
agree on or before the Contingency Date, a credit against the Purchase Price in
the amount of Seventy-Two Thousand Dollars ($72,000), which amount the parties
agree represents the amount owed to Seller by Fontana Rock Co. for rock
reclamation permits under
20
<PAGE>
that certain Mining Conditional Use Permit and Reclamation Plan for Fourth
Street Rock Crusher, dated September 4, 1997.
5.7 Possession. Seller shall deliver exclusive possession of the
----------
Property to Buyer, free and clear of any tenants or other occupants other than
Heckett and, assuming the Close of Escrow occurs before September 15, 2000,
Johnson Bail Bonds, as of 6:00 p.m. on the date of the Close of Escrow.
Notwithstanding this provision, Seller shall, upon written request, be permitted
access to, and the right to copy, during normal business hours, the books and
records transferred to Buyer as part of the Property. In the event that Buyer
desires to destroy such books and records, it shall give Seller fourteen (14)
days' notice thereof and Seller, at its sole expense, shall have the right to
retrieve or copy such books and records.
6. Remedies on Default.
-------------------
6.1 Default by Seller. IN THE EVENT THAT CLOSE OF ESCROW SHALL FAIL
-----------------
TO OCCUR BY REASON OF A MATERIAL DEFAULT BY SELLER, BUYER SHALL BE ENTITLED TO
ELECT ONE OF THE FOLLOWING REMEDIES: (i) TO IMMEDIATELY TERMINATE THIS AGREEMENT
UPON SUCH DEFAULT AND TO OBTAIN THE PROMPT RETURN OF THE DEPOSIT, AND ALL
INTEREST EARNED THEREON, AND TO BE PAID BY SELLER THE SUM OF ONE MILLION TWO
HUNDRED FIFTY THOUSAND DOLLARS ($1,250,000) AS LIQUIDATED DAMAGES (THE PARTIES
ACKNOWLEDGING THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL
DAMAGES); OR (ii) TO OBTAIN SPECIFIC PERFORMANCE OF ALL OF THE TERMS OF THIS
AGREEMENT.
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE
PROVISIONS OF THIS SECTION 6.1 AND BY THEIR INITIALS BELOW AGREE TO BE BOUND BY
ITS TERMS.
CAM RES
________________ ________________
Buyer's Initials Seller's Initials
6.2 Default by Buyer. IN THE EVENT THAT BUYER FAILS IN THE
----------------
PERFORMANCE OF ANY OF ITS OBLIGATIONS HEREUNDER PRIOR TO THE CLOSE OF ESCROW, OR
IN THE EVENT THAT THE CLOSE OF ESCROW SHALL FAIL TO OCCUR BY REASON OF A
MATERIAL DEFAULT IN BUYER'S OBLIGATIONS HEREUNDER, THE PARTIES AGREE THAT IT
WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS
AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS
TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IN THE EVENT THAT
THE CLOSE OF ESCROW SHALL FAIL TO OCCUR BY REASON OF A DEFAULT IN BUYER'S
OBLIGATIONS HEREUNDER, SELLER SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE
REMEDY FOR SUCH DEFAULT, TO IMMEDIATELY TERMINATE THIS AGREEMENT UPON SUCH
DEFAULT, IN WHICH CASE THE DEPOSIT (AND ALL INTEREST ACCRUED THEREON) SHALL BE
RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE
PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE
21
<PAGE>
OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA
CIVIL CODE SECTIONS 1671, 1676, AND 1677. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION
CONTAINED IN THIS SECTION. SELLER WAIVES ALL OTHER REMEDIES AGAINST BUYER FOR
BUYER'S FAILURE TO CLOSE ESCROW, INCLUDING ANY RIGHT TO SPECIFIC PERFORMANCE
UNDER CALIFORNIA CIVIL CODE SECTION 1680 OR ANY OTHER APPLICABLE LAW.
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE
PROVISIONS OF THIS SECTION 6.2 AND BY THEIR INITIALS BELOW AGREE TO BE BOUND BY
ITS TERMS.
CAM RES
---------------- -----------------
Buyer's Initials Seller's Initials
7. Seller's Representations and Warranties. Seller hereby makes the
---------------------------------------
following representations and warranties to Buyer:
7.1 Due Authorization, Etc. Each Seller is a duly organized and
----------------------
validly existing corporation under the laws of the State of Delaware, is in good
standing therein, with full power and authority to carry on its business as
currently conducted and where conducted. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to be
executed by Seller on or before the Close of Escrow will be duly authorized,
executed and delivered by and binding upon Seller enforceable in accordance with
its terms; and Seller will have authority to enter into this Agreement and
consummate the transactions herein provided. Seller is authorized to do business
in the State of California.
7.2 Actions, Suits and Proceedings. Other than as set forth on
------------------------------
Exhibit R attached hereto, Seller has not (i) received notice of any outstanding
---------
violation of or been charged with the violation of any material legal
requirement, restriction, condition, covenant or agreement affecting the Real
Property or the marketing, construction, development, use, operation,
maintenance or management of the Real Property which has not been cured, and
(ii) been served in any unresolved litigation relating to the Real Property or
the marketing, construction, development, use, operation, maintenance or
management of the Real Property. Other than as set forth in Exhibit R, Seller
---------
has no actual knowledge of any actions, suits, claims or proceedings,
governmental or otherwise, pending or threatened against the Real Property or
any portion thereof
7.3 No Impediments to Performance. Other than as set forth on
-----------------------------
Exhibit S attached hereto, Seller is not a party to any material certificate,
---------
instrument, contract, deed of trust, mortgage, indenture, agreement, covenant or
other restriction, and there is no provision in Seller's charter, bylaws or
partnership agreement, or any judgment, order, writ, injunction, or
22
<PAGE>
decree of any court, governmental body or arbitrator, which would prohibit or
otherwise be breached or violated by the entering into, execution, delivery or
performance by Seller of this Agreement or the consummation of the transactions
contemplated hereby.
7.4 No Brokers. There are no claims for brokerage commissions,
----------
finder's fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of Seller. Other than as set forth on Exhibit T hereto, as of the
---------
Execution Date, Seller covenants, represents and warrants that it has not
entered into any listing agreement(s) or other brokerage agreements with any
real estate broker or salesperson with respect to the Real Property and it shall
not do so without Buyer's prior written consent, which may be withheld in
Buyer's sole and absolute discretion.
7.5 Disclosures. Buyer and Seller acknowledge that Seller is required
-----------
to disclose if the Real Property lies within the following natural hazard areas
or zones: (i) a special flood hazard area designated by the Federal Emergency
Management Agency (California Civil Code Section 1102.17); (ii) an area of
potential flooding (California Government Code Section 8589.4); (iii) a very
high fire hazard severity zone (California Government Code Section 51183.5);
(iv) a wild land area that may contain substantial forest fire risks and hazards
(Public Resources Code Section 4136); (v) an earthquake fault zone (Public
Resources Code Section 2621.9); or (vi) a seismic hazard zone (Public Resources
Code Section 2694). Buyer and Seller acknowledge that Seller has employed the
services of Vista Environmental (which, in such capacity is herein called
"Natural Hazard Expert") to examine the maps and other information specifically
---------------------
made available to the public by government agencies for the purpose of enabling
Seller to fulfill its disclosure obligations with respect to the natural hazards
referred to in California Civil Code Section 1102.6c(a) and to report the result
of its examination to Buyer and Seller in writing. The written report prepared
by the Natural Hazard Expert and delivered to Buyer regarding the results of its
examination fully and completely discharges Seller from its disclosure
obligations referred to herein, and, for the purpose of this Agreement, the
provisions of Civil Code Section 1102.4 regarding the non-liability of each of
Seller for errors or omissions not within its personal knowledge shall be deemed
to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing
with matters within the scope of its expertise with respect to the examination
and written report regarding the natural hazards referred to above. Seller shall
not have any responsibility for matters not actually known to Seller. In
addition, Seller has disclosed to Buyer or its consultants, to the extent it has
actual knowledge, all material issues regarding the Real Property and the
environmental condition of the Adjacent Property, including those involving
environmental conditions and asserted environmental claims, and those contained
in privileged documents. Buyer acknowledges that certain pre-October 4, 1988
documents are contained in boxes which are not well-indexed and which Buyer will
have to review at its expense.
7.6 Contracts. Other than as set forth on Exhibit H attached hereto,
--------- ---------
there are no service, maintenance, employment, supply, management or other
agreements affecting the Property, either oral or written, which will remain in
effect after the Close of Escrow. Notwithstanding the foregoing, it shall not be
a default hereunder if Seller has in good faith failed to disclose one or more
of such agreements so long as no one such agreement has a post Close of Escrow
obligation of more than Five Thousand Dollars ($5,000) and all of such
23
<PAGE>
foregoing agreements in the aggregate do not have a post Close of Escrow
obligation of more than Twenty-Five Thousand Dollars ($25,000).
7.7 Leases. Other than as set forth on Exhibit V attached hereto or
------ ---------
in the PTR, there are no leases, licenses or other agreements permitting the use
or occupancy of the Real Property, which will remain in effect after the Close
of Escrow. Other than as set forth on Exhibit V attached hereto or in the PTR,
---------
to Seller's actual knowledge there are no persons entitled to use or occupy the
Real Property or any portion thereof by reason of any easements by prescription
or necessity.
7.8 Bankruptcy. Subject to the last sentence in this Section 7.8,
----------
Seller has not: (a) made a general assignment for the benefit of creditors; (b)
filed any voluntary petition in bankruptcy or suffered the filing of an
involuntary petition by its creditors; (c) suffered the appointment of a
receiver to take possession of all or substantially all of its assets; or (d)
suffered the attachment or judicial seizure of all, or substantially all, of its
assets. Buyer acknowledges that, in 1987, Seller (which was then known as Kaiser
Steel Corporation) filed a voluntary Petition for Reorganization under Chapter
11 of the United Bankruptcy Code and the Order of the United States Bankruptcy
Court approving Seller's Plan of Reorganization was entered on the docket on
October 4, 1988.
7.9 No Other Agreements to Convey. Except as set forth in Exhibit W
----------------------------- ---------
attached hereto, Seller has not granted any person any right to acquire all or
any portion of the Property, including, without limitation, any development,
mineral or air rights relating to the Property.
7.10 Tax Bills. The copies of the real property tax bills attached as
---------
Exhibit U are true, accurate and complete copies of all tax bills received by
---------
Seller within the past three (3) years for the Real Property.
7.11 No Actions. Except as disclosed in Exhibit R attached hereto,
---------- ---------
Seller has no actual knowledge of: (a) any condemnation, pending or threatened,
of the Real Property or any portion thereof, including any right of access to
the Real Property; (b) any government plans for public improvements that might
result in a special assessment against the Real Property; (c) any underground or
above-ground storage tanks on the Real Property not previously disclosed to
Buyer in writing or referenced in the records previously made available to
Buyer; or (d) any pending or threatened change in the zoning of the Real
Property.
7.12 No Approvals Needed. Other than the approvals and consents
-------------------
described in Exhibit S attached hereto, the sale of the Real Property and the
---------
performance of Seller's obligations hereunder are not subject to any requirement
to obtain any approval or consent of any governmental agency or third party.
7.13 Documents, Files and Records. The files, records and other
----------------------------
documents delivered or made available to Buyer or its consultants pursuant to
Section 4.3 above are, to Seller's actual knowledge, complete and accurate in
all material respects as of the date prepared and have not been modified or
amended by any confidential or proprietary document or information which was not
provided or made available by Seller.
8. Buyer's Representations and Warranties.
--------------------------------------
24
<PAGE>
8.1 Due Authorization, Etc. Buyer is a duly organized and validly
----------------------
existing limited liability company under the laws of the State of Delaware, in
good standing therein, and has full power and authority to carry on its business
as currently conducted and where conducted. Buyer is authorized to do business
in the State of California. This Agreement and all agreements, instruments and
documents herein provided to be executed by Buyer on or before the Close of
Escrow will be duly authorized, executed and delivered by and binding upon Buyer
enforceable in accordance with its terms; and Buyer will have authority to enter
into this Agreement and consummate the transactions herein provided. CDC is a
duly organized and validly existing corporation under the laws of the State of
Delaware, in good standing therein, and has full power and authority to carry on
its business as currently conducted and where conducted. CDC is authorized to do
business in the State of California. The CDC Guaranty to be executed by CDC on
or before the Close of Escrow will be duly authorized, executed and delivered by
and binding upon CDC enforceable in accordance with its terms (provided that
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting creditors' rights generally),
and CDC will have authority to enter into the CDC Guaranty.
8.2 No Impediments To Performance. Buyer is not a party to any
-----------------------------
material certificate, instrument, contract, deed of trust, mortgage, indenture,
agreement, covenant or other restriction, and there is no provision in Buyer's
formation documents or regulations, or any judgment, order, writ, injunction, or
decree of any court, governmental body or arbitrator, which would prohibit or
otherwise be breached or violated by the entering into, execution, delivery or
performance by Buyer of this Agreement or the consummation of the transactions
contemplated hereby. There is no provision in CDC's formation documents or
regulations, or any judgment, order, writ, injunction, or decree of any court,
governmental body or arbitrator, which would prohibit or otherwise be breached
or violated by the entering into, execution, delivery or performance by CDC of
the CDC Guaranty.
8.3 Broker. Except for the commission to be paid to Lee & Associates
------
(which commission shall be paid by Buyer at the Close of Escrow) or as otherwise
disclosed to Seller in writing, there are no claims for brokerage commissions,
finder's fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of Buyer.
8.4 Bankruptcy. Buyer has not: (a) made a general assignment for the
----------
benefit of creditors; (b) filed any voluntary petition in bankruptcy or suffered
the filing of an involuntary petition by its creditors; (c) suffered the
appointment of a receiver to take possession of all or substantially all of its
assets; or (d) suffered the attachment or judicial seizure of all, or
substantially all, of its assets.
9. Survival of Warranties; Notice. The representations, warranties and
------------------------------
covenants made by Seller and Buyer in Articles 7 and 8 of this Agreement shall
survive the Close of Escrow and the recordation of the Deed for a period of
thirty-six (36) months, and any action for a breach of any representation,
warranty or covenant must be filed and served within thirty-nine (39) months
from the date of recordation of the Deed. If either Party learns that a
representation or warranty made by the other Party is not true or correct in any
material respect, it shall give prompt notice thereof to the other Party and
such other party shall have a reasonable opportunity to cure;
25
<PAGE>
provided, however, that either the giving of such notice or the failure to do
-------- -------
so shall not excuse the Party which made the untrue or incorrect representation
or warranty. If Buyer learns prior to the Close of Escrow that any
representation, warranty or covenant of Seller is incorrect, in any material
respect and does not give notice of such fact to Seller in accordance with this
Article 9, then Buyer shall be deemed to have waived any and all claims or
remedies for such breach or inaccuracy.
10. Environmental Covenants; Insurance. Notwithstanding the provisions of
----------------------------------
Section 9 or Section 15.16, this Article 10 shall survive the Close of Escrow
and the recordation of the Deed.
10.1 Property Condition. Buyer acknowledges that: (a) the Real
------------------
Property and the Adjacent Property were formerly used for Steel Mill Operations
and, subsequent to active Steel Mill Operations, by a number of tenants and
other occupants; and (b) Hazardous Substances were placed, may have spilled,
leaked, seeped or entered onto or under the ground, air, water or groundwater
and Hazardous Substances are present at, under, above or adjacent to and/or
emanating to or from the Real Property and/or other real property in the
vicinity of the Real Property (including, without limitation, the Adjacent
Property). Buyer acknowledges that, following the Close of Escrow, Buyer shall
have the obligation to investigate, remove, remediate, monitor and clean up such
Hazardous Substances as provided more specifically in this Article 10. Buyer has
evaluated and is familiar with the potential magnitude of remediation of
Hazardous Substances contamination at, under, above, adjacent and/or emanating
to or from the Real Property and the Tar Pits Property and has access to the
financial resources necessary to purchase the Property pursuant to this
Agreement and to carry out such remediation (including ongoing continuing
operations and maintenance obligations) of Hazardous Substances according to all
applicable Laws and to timely perform all other obligations assumed by Buyer
under this Agreement. Buyer acknowledges that Seller's disclosures hereunder
satisfy Seller's disclosure obligations under Section 25359.7 of the California
Health & Safety Code.
10.2 Pre-Closing Activities.
----------------------
10.2.1 Agency Specific Approval/Agreement. Buyer shall enter
----------------------------------
into the Buyer Consent Order as of the Close of Escrow. Buyer agrees to
reimburse Seller for any amounts paid by Seller to DTSC for expenses incurred by
DTSC in negotiating the Buyer Consent Order (other than any expenses relating to
RCRA issues or termination of the Kaiser Consent Order) not to exceed $35,000.
Buyer shall request that DTSC terminate the Kaiser Consent Order and any
financial assurances given by Kaiser in connection therewith. If required by the
DTSC, Buyer shall post its own financial assurances with the DTSC in connection
with the Buyer Consent Order and shall join with Seller in requesting that DTSC
substitute Buyer's financial assurances for those given to DTSC by Seller in
connection with the Kaiser Consent Order and shall otherwise reasonably
cooperate with Seller, in effecting such termination of the Kaiser Consent Order
and any financial assurances given by Kaiser in connection therewith provided
that Seller shall pay any expenses which may be incurred by Buyer post-closing
in connection with such cooperation (other than Buyer's or Buyer's affiliates'
internal overhead expenses). Seller acknowledges and agrees that the DTSC's
refusal to terminate the Kaiser Consent Order or to substitute Seller's
financial assurances given to DTSC shall not constitute a default by Buyer under
this Agreement.
26
<PAGE>
10.2.2 Remediation Activities. Prior to the Close of Escrow,
----------------------
Seller shall continue to operate any soil and/or groundwater treatment systems
operating at the Real Property and the Adjacent Property, if applicable. Prior
to the Close of Escrow, Seller shall remove from the Real Property, transport
and dispose of or otherwise lawfully manage all Hazardous Substances known to be
stored in containers on the Real Property other than materials stored in the
drums referred to in Section 2.12.5 of the "scope of work" attached to the IT
Contract with ITG. Prior to the Close of Escrow, Seller shall also continue to
perform such remediation at the Real Property as may be required by applicable
Agencies.
10.2.3 Meetings with Governmental Agencies. Prior to the Close
-----------------------------------
of Escrow, Buyer shall have the right to contact Agencies regarding Buyer's
proposed cleanup activities and development plans for the Real Property. Buyer
shall provide Seller with forty-eight (48) hours' written notice prior to any
proposed meeting or proposed telephone conference with such Agencies. However,
at Buyer's request, Seller shall arrange all such meetings or telephone
conferences as Buyer shall reasonably require for such purpose. Seller shall
have the right to be present at any such meetings or on any such telephone
conferences.
10.2.4 Correspondence with Governmental Agencies. From and
-----------------------------------------
after the Execution Date and so long as this Agreement remains in effect, and so
long as there is no Default as defined in Section 10.9 hereof, Seller and its
affiliates and subsidiaries and each of their officers, directors, employees,
agents and representatives shall refrain from any communications or discussions
with any Agency or any third party, and from taking any other action, which
could result in any Agency requesting or requiring Buyer or the owner of the
Real Property or the Adjacent Property to take, perform or cease any activity on
or with respect to the Real Property or the Adjacent Property. Seller shall be
entitled, so long as Buyer's representatives have the opportunity to be present
after reasonable notice thereof, to meet or have conversations with the DTSC
regarding (i) termination of the Kaiser Consent Order; (ii) elimination of the
public hearing requirement regarding closure of the Speedway site under the
Buyer Consent Order and (iii) remediation of the Tar Pits Property. Seller shall
deliver a copy of any and all notices and correspondence received from any
Agency to Buyer within two (2) business days after receipt thereof. Seller
acknowledges that, as an inducement to providing the indemnities in Section
10.3.4, below, Buyer is relying on Seller's covenant and agreement to permit
Buyer to complete all aspects of the Corrective Action, including any
communications with applicable Agencies. The provisions of this Section 10.2.4
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, (ii) the Excluded Liabilities or (iii) any activities described in
Section 10.2.2, above, 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), (ii) or (iii), 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.
27
<PAGE>
10.3 Post-Closing Activities.
-----------------------
10.3.1 Environmental Liabilities and Obligations. As used
-----------------------------------------
herein, the term "Environmental Liabilities and Obligations" shall mean any
------------------------------------------
known or unknown liability, obligation (including, without limitation, Buyer's
obligations under the Buyer Consent Order and any other obligation to
investigate, monitor, test, report to an Agency, remediate or clean up or any
obligation under a permit, order or agreement or under any Laws), claim, action,
proceeding, expense, cost (including, without limitation, any expense and cost
incurred or associated with the investigation, handling, containment,
characterization, disposal, treatment, stabilization and/or neutralization of
Hazardous Substances, as well as the cost and expense of site management,
preparing and finalizing remedial action plans and scopes of work, worker safety
costs, security costs, attorneys fees and costs, consulting fees and costs,
engineering fees and costs, contractor fees and costs, laboratory costs,
financial assurance costs, and licensing, permitting and other similar costs and
expenses), fee, tax, assessment, fine, or penalty, agency oversight damage,
loss, financial assurance, whether incurred by a Party or claimed by any third
party (including, without limitation, any Agency), arising out of or relating to
any actual, alleged or threatened placement, presence, existence, discharge,
release, emission, spill or past, present or future migration of Hazardous
Substances at, under, above and/or emanating from the Real Property and/or the
Tar Pits Property or any such placement, discharge, release, emission, spill or
migration from a source other than the Real Property onto the Real Property
and/or the Tar Pits Property, of any Hazardous Substances except for (i) the
------ ---
Excluded Liabilities (as hereinafter defined) and (ii) any loss realized by
Seller or an affiliate of Seller solely for diminution in value of the Real
Property or the Adjacent Real Property resulting from Seller or any of its
affiliates' inability to use the Real Property or the Adjacent Real Property for
a desired purpose.
10.3.2 Excluded Liabilities. As used herein, the term "Excluded
-------------------- --------
Liabilities" shall mean: (a) any such liabilities and obligations arising from
-----------
or related to environmental conditions at the Real Property or the Adjacent
Property (during the time it was owned by Seller) which were intentionally
concealed from Buyer by Seller and of which Buyer had no knowledge prior to the
Close of Escrow; (b) any liabilities and obligations for remediation of
Hazardous Substances which were removed from the Real Property or the Adjacent
Property and were disposed of off-site, including, without limitation, at
landfills or other recycling or disposal facilities, prior to the Close of
Escrow; (c) fines or penalties assessed against Seller for acts and omissions
occurring prior to the Close of Escrow (provided, however, that Buyer does not
-----------------
act so as to induce the imposition of such fines and penalties unless Buyer's
acts were compelled by law and except to the extent such fines or penalties may
be covered by the Insurance Policies); (d) damages and liabilities caused by
Seller's breach of this Agreement or any Exhibits attached hereto and
incorporated herein; (e) liabilities for personal injury, including death and
disability, occurring prior to the Close of Escrow caused to employees,
contractors, invitees or guests or any other persons at or from the Real
Property or the Adjacent Property, other than those for which the Buyer or any
of its affiliates is responsible under the Entry Permit, to the extent that such
liabilities arise as a result of a failure of any contractor of Seller to
maintain the insurance which such contractor was obligated to maintain pursuant
to such contractor contract with Seller or to the extent that such liabilities
are alleged by an employee or former employee of Seller; (f) any liabilities or
obligations arising solely from the SAWPA Plume, the Ontario Litigation or the
Mushegain Litigation, as those matters are described more fully in Exhibit O
---------
attached hereto; (g) any contractual liabilities of Seller other
28
<PAGE>
than those that may be specifically assumed by Buyer in this Agreement or any
Exhibit hereto or (h) personal injury, including death and disability, occurring
prior to the Close of Escrow caused to employees, contractors, invitees or
guests or any other persons at or from the Real Property, other than those for
which the Buyer or any of its affiliates is responsible under the Entry Permit,
to the extent such injury is not related to Hazardous Substances conditions at
the Real Property or the Adjacent Property.
10.3.3 Remediation of Property. Buyer shall assume, undertake,
-----------------------
satisfy, discharge and timely perform all Environmental Liabilities and
Obligations whether existing or first occurring before, on or after the Close of
Escrow and whether or not known or unknown as of the Close of Escrow. Without
limiting the generality of the foregoing, the following rights, covenants and
obligations shall govern the Parties following the Close of Escrow:
10.3.3.1 Corrective Action. Buyer shall, at its sole risk
-----------------
and expense (subject to the provisions of Section 10.7 hereof), timely perform
all Corrective Action (as hereinafter defined) for all Hazardous Substances
present on, under or at or emanating from the Real Property and/or on, under or
at or emanating from the Tar Pits Property (including ongoing continuing
operations and maintenance obligations) or at any location to which the
Hazardous Substances may have migrated from the Real Property and/or the Tar
Pits Property. As used in this Section 10.3.3.1, "timely" means with such
diligence and continuity as may be reasonably necessary to avoid a Buyer Default
hereunder or a loss of coverage under the Insurance Policies. As used herein,
"Corrective Action" means investigation, stabilization, response, monitoring,
-----------------
operations, maintenance, active remediation, passive remediation and risk
assessment or any combination thereof in such a manner as to achieve the
remediation standards required by the rules, regulations, policies, agreements
or orders as they may change from time to time (collectively, "Requirements") of
------------
applicable Agencies or applicable Laws. Corrective Action shall expressly
exclude any Corrective Action related to or arising from the Excluded
Liabilities. Buyer's obligations under this Section 10.3.3.1 shall be limited to
the performance of any Corrective Action necessary to meet the requirements of
the Agency having jurisdiction over the Corrective Action or by applicable Laws;
provided, however, that Seller shall pay for the incremental cost and expense of
remediating the Tar Pits Property as provided in Section 10.7 hereof.
10.3.3.2 Seller's Non-Participation. Following the Close of
--------------------------
Escrow, Seller shall have no right to participate in the remediation of the Real
Property by Buyer except (i) with respect to the Tar Pits Property, Seller shall
be entitled to participate in any discussions regarding a remediation plan other
than the immobilization and capping plan and shall pay for a portion of such
remediation as provided in Section 10.7 below if no capping remedial action plan
is permitted; or (ii) upon Buyer's Default (as hereinafter defined); or (iii) in
connection with Seller's enforcement of the performance bond or the IT Contract
in accordance with the terms hereof and thereof. Until (i) receipt of a NFA
Letter, (ii) an Agency determination that an NFA Letter is not required for the
Real Property and the Tar Pits Property or (iii) the condition is endorsed for
clean up cost coverage under the Real Estate Environmental Insurance Policy
referred to in Section 10.5.1.3, below, Buyer shall keep Seller reasonably
informed of the progress of each Corrective Action (other than ongoing
operations and maintenance) being performed or planned at the Real Property, the
Tar Pits Property and any
29
<PAGE>
other remediation, by delivering written status reports to Seller at least once
every two (2) months.
10.3.4 Indemnification by Buyer. Except only for the Excluded
------------------------
Liabilities, 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 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) in connection with,
arising out of or related to: (a) any Corrective Action (except to the extent
arising out of Seller's failure to make any payments required of Seller pursuant
to Section 10.7 hereof); (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. 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.
10.3.5 Seller's Responsibility. Following the Close of Escrow,
-----------------------
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 remediation of the Tar Pits Property. 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
30
<PAGE>
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 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.
10.3.6 Indemnification by Seller. Seller agrees to
-------------------------
indemnify, hold harmless and defend Buyer and its members, affiliates and
subsidiaries and each of their past, current and future officers, directors,
employees, agents and representatives from and against any and all liabilities,
penalties, fines, suits, claims, demands, actions, losses, damages, expenses,
investigation and remediation costs (including, but not limited to, laboratory,
handling, transportation, containment, neutralization, disposal, capping and
other similar costs), operation and maintenance costs, financial assurance
costs, 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' and contractors'
fees) in connection with arising out of or related to any Excluded Liabilities
except for consequential damages incurred by Buyer arising out of Seller's
breach of this Agreement or any Exhibit (as distinct from consequential damages
incurred by third parties as a result of Seller's breach of this Agreement and
recovered or recoverable from Buyer which third party consequential damages
shall be recoverable hereunder). Any indemnification and defense to be provided
pursuant to this Section 10.3.6 shall be conducted in accordance with the
procedures set forth in Section 14, below.
10.3.7 Payment for Apollo Testing. Seller has performed
--------------------------
certain inspections of the Apollo Wood Recycling premises prior to the
Contingency Date. Buyer shall reimburse Seller for $20,000 of such costs upon
the Close of Escrow upon verification that not less than $40,000 was spent in
performing such inspections and preparing reports concerning same. Nothing
herein shall be deemed to excuse Apollo from any obligations it may have with
respect to the Real Property.
10.4 IT Contract. As an inducement to execute this Agreement,
-----------
Seller is relying upon, and hereby approves and consents to, Buyer's retention
of ITG and LandBank, Inc., (each, a "Consultant") for the Corrective Action at
----------
or near the Real Property and/or the Tar Pits Property pursuant to a fixed-
priced contract between Buyer and ITG and a remediation services agreement with
LandBank, Inc. (the contracts, together with the lien and completion bond issued
to secure performance thereof and the multiple obligee agreement, are
collectively, the "IT Contract"), the forms of which shall be attached hereto as
-----------
Exhibit Q. Seller shall be an express third party beneficiary of the IT Contract
---------
and an obligee of the performance bond. Buyer shall have no obligation to obtain
Seller's consent to any termination or amendment of the IT Contract after the
Close of Escrow except for amendments relating to the Tar Pits Property. If
Buyer terminates the IT Contract or modifies it to significantly reduce the
scope of work to be performed by IT where such work is still required to be
performed by any Agency, Buyer shall, within a reasonable period of time, enter
into a contract providing for performance of the remaining Corrective Action or
the Corrective Action no longer covered by the IT Contract but still required to
be performed by any Agency. Seller shall be named as a third party beneficiary
31
<PAGE>
of such contract and, if a bond is provided under such contract, Seller shall be
named as an additional obligee under such bond and be a party to a multiple
obligee agreement. Buyer shall deliver to Seller copies of any such replacement
contract and, if issued, such bond. Buyer shall also, at the request of Seller,
make a representative reasonably available to consult with Seller with respect
to such replacement contract, and, if, within a reasonable period of time prior
to the date when such replacement contract is intended to be signed, Seller
requests that such meeting be held prior to entry into the replacement contract,
Buyer shall provide Seller with a copy of the draft contract and shall make
itself reasonably available to consult with Seller prior to execution of the
replacement contract. Buyer acknowledges that it does not have any current
intention or expectation of terminating the IT Contract after the Close of
Escrow.
10.5 Required Insurance.
------------------
10.5.1 Upon the Close of Escrow, Buyer shall obtain the
following insurance policies in forms and with such named insureds and
additional insureds as are agreed upon by the parties prior to the expiration of
the Contingency Date (collectively, the "Insurance Policies"):
------------------
10.5.1.1 A Remediation Stop Loss Insurance Policy in
the form of Exhibit L;
---------
10.5.1.2 An Operations, Maintenance and Monitoring
Insurance Policy in the form of Exhibit G;
---------
10.5.1.3 A Real Estate Environmental Liability
Insurance Policy in the form of Exhibit K.
---------
10.5.2 Terms of Insurance. Buyer shall pay the full policy
------------------
premiums for each of the Insurance Policies and endorsements thereto at or prior
to the Close of Escrow. Each of the Insurance Policies shall be placed through
a carrier rated A.M. Best A+,VIII or better. Seller hereby approves the Zurich
Entities.
10.5.3 Deductibles. Buyer shall be solely responsible for
-----------
the payment of any deductibles and self insured retentions under the Insurance
Policies.
10.5.4 Additional Coverage. At its sole cost and expense,
-------------------
Seller may increase the liability limits under the Insurance Policies.
10.5.5 Amendments or Termination. If the Zurich Entities
-------------------------
will not agree to prohibit termination of the Insurance Policies or amendments
which materially reduce the term, coverage or liability limits thereunder
without Seller's prior consent, Buyer agrees that it will not terminate the
Insurance Policies or enter into any amendment of the Insurance Policies which
will materially reduce the term, coverage or liability limits thereunder without
Seller's prior consent.
10.6 Other Assumed Obligations and Liabilities. In addition to
-----------------------------------------
the Environmental Liabilities and Obligations, pursuant to the Omnibus
Assignment and
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<PAGE>
Assumption Agreement, Buyer shall assume and perform certain of Seller's
obligations under the Material Agreements.
10.7 Tar Pits Property. Seller is currently seeking to amend the
-----------------
current remedial action plan with the DTSC for the Tar Pits Property to an
immobilization and capping remedial action plan as opposed to the current
removal and disposal. In the event Seller elects, or an Agency requires, a
removal and disposal strategy for the Tar Pits Property instead of an
immobilization and capping strategy, Seller shall pay the incremental cost of
the removal and disposal remediation alternative over the capping remediation
alternative as such costs are incurred. Seller shall have the right to elect the
removal and disposal strategy by giving written notice to Buyer at any time
prior to the commencement of the immobilization and capping of the Tar Pits
Property of its desire to cause a removal and disposal strategy for the Tar Pits
Property. Buyer shall join with Seller in seeking DTSC approval for such an
immobilization and capping remedial action plan. Buyer agrees that if a capping
plan is approved by DTSC, Buyer will use reasonable efforts to complete such
capping within eighteen (18) months after such plan is approved by DTSC or
within such shorter time period as may be required by the DTSC.
10.8 Deed Restriction. Buyer agrees that Seller's deed to Buyer
----------------
and Buyer's deed to future owners of the Real Property shall contain the
restriction set forth in Exhibit Y attached hereto.
---------
10.9 Default by Buyer. Buyer shall be deemed to have defaulted
----------------
in its obligations (a "Default") and agreements set forth in Section 10.3.3.1
-------
hereof if all work included in the definition of Corrective Action has not been
---
completed on the Real Property and/or the Tar Pits Property and all of the
---
following events occur:
a. An Agency seeks in a written notice to have Seller
perform Corrective Action with respect to the Real Property
or the Tar Pits Property; and
b. Seller gives Buyer written notice of the Agency's
written notice or order; and
c. Buyer fails to respond to the Agency and timely commence
taking the appropriate action or entering into good faith
negotiations with such Agency; and
d. As a result of Buyer's failure to take appropriate
action in response to such Agency notice, Agency performs
Corrective Action and submits a claim or invoice against
Seller for the cost of such performance; and
e. Buyer does not pay the costs described in clause (d)
above within thirty (30) days after receipt of a demand from
Seller hereunder or provide a bond or other security for
such costs reasonably acceptable to Seller so that Seller is
not obligated to pay such costs to the Agency.
Notwithstanding the foregoing, if, after the occurrence of a. and
b. above, and despite Buyer's compliance with c., above, an Agency issues an
order on Seller requiring Seller to perform Corrective Action, and the cost of
performing or failure to perform such Corrective
33
<PAGE>
Action (including, without limitation, fines, penalties and/or interest for
failure to perform) will or may in the aggregate exceed $250,000 and, based on
the opinion of a "big 5" or other nationally recognized accounting firm
reasonably acceptable to Buyer, which firm is not then retained by Seller for
audit purposes, Seller will be required to disclose such order in its SEC
filings and reserve against the costs of performing or failing to perform such
order, Buyer shall be in default hereunder if Buyer has not provided such surety
or bonds as are necessary to avoid the reserve requirement of Seller on or
before the date for Seller's SEC filing in which such order shall be disclosed
and such reserve requirement will be satisfied.
If a Default occurs as defined in this Section 10.9, then Seller shall
have the right to take such steps as necessary to cure such default (including
the right to enter onto the Real Property) and to recover from Buyer the costs
reasonably expended by Seller to cure such default. In addition, Seller shall
have the right to exercise and exercise all rights and remedies afforded to
Seller under the CDC Guaranty in a similar manner and fashion against Buyer.
10.10 CDC Guaranty. Certain of Buyer's obligations to make payments
------------
for Corrective Action shall be secured by a guaranty (the "CDC Guaranty") from
------------
CDC in the form to be attached as of Exhibit CC hereto. Buyer and Seller
----------
acknowledge that CDC has required that its liability under the CDC Guaranty be
subject to a cap in the amount of the self insured retention under the
Remediation Stop Loss Insurance Policy and further acknowledge that they are
discussing whether exceptions should be made to that cap, which exceptions must
be reasonably agreed upon by the parties and approved by CDC in its sole
discretion.
11. As-Is. EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY HEREIN, THE
-----
PROPERTY IS SOLD BY SELLER TO BUYER ON AN "AS-IS WHERE-IS" BASIS WITH NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EITHER ORAL OR
WRITTEN, MADE BY SELLER OR ANY AGENT OR REPRESENTATIVE OF SELLER WITH RESPECT TO
THE PHYSICAL OR STRUCTURAL CONDITION OF THE PROPERTY OR WITH RESPECT TO THE
EXISTENCE OR ABSENCE OF PETROLEUM, HAZARDOUS SUBSTANCES OR POLLUTION CONDITIONS
AT, UNDER, ADJACENT TO AND/OR EMANATING TO OR FROM THE PROPERTY OR THE GROUND
WATER THEREUNDER OR WITH RESPECT TO THE COMPLIANCE OF THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER
BODY, OR CONCERNING THE COST OR TIME NECESSARY TO COMPLETE THE CORRECTIVE
ACTION. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPLICITLY STATED IN THIS
AGREEMENT, SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS,
WARRANTIES, OR COVENANTS OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE HABITABILITY, TENANTABILITY OR SUITABILITY FOR
COMMERCIAL PURPOSES, MERCHANTABILITY, OR FITNESS OF THE PROPERTY FOR A
PARTICULAR PURPOSE, ALL OF WHICH WARRANTIES SELLER HEREBY EXPRESSLY DISCLAIMS.
BUYER EXPRESSLY ASSUMES AT CLOSING ALL ENVIRONMENTAL LIABILITIES AND OBLIGATIONS
(SUBJECT TO THE PROVISIONS OF SECTIONS 10.3.6 AND 10.7 HEREOF AND THE OMNIBUS
ASSIGNMENT AND ASSUMPTION AGREEMENT) WITH RESPECT TO THE PROPERTY AND THE TAR
PITS PROPERTY AND BUYER ON ITS OWN BEHALF AND ON BEHALF OF ITS DIRECT
34
<PAGE>
AND INDIRECT SUCCESSORS, ASSIGNS AND TRANSFEREES OF ALL OR ANY PORTION OF THE
PROPERTY, RELEASES THE SELLER PARTIES FROM THE SAME, WHETHER SUCH LIABILITY IS
IMPOSED BY STATUTE, REGULATION, DERIVED FROM COMMON LAW, OR BY CONTRACT,
INCLUDING, BUT NOT LIMITED TO LIABILITIES ARISING UNDER ANY ENVIRONMENTAL LAWS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS RELEASE EXTENDS
TO ANY AND ALL CLAIMS, CAUSES OF ACTION, RIGHTS, LIABILITIES AND REMEDIES UNDER,
BASED UPON OR PURSUANT TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION
AND LIABILITY ACT OF 1980, 42 U.S.C. (S) 9601 et seq. ("CERCLA"), AS AMENDED BY
THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (42 U.S.C. (S) 9613),
AS THE SAME MAY BE FURTHER AMENDED, ENACTED OR REPLACED BY ANY SIMILAR OR
COMPARABLE STATE, FEDERAL OR LOCAL LAW, RULE OR REGULATION.
BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542") WHICH IS SET
------------
FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
BY INITIALING BELOW, BUYER HEREBY WAIVES THE PROVISIONS OF SECTION
1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE
FOREGOING WAIVERS AND RELEASES EXCEPT THAT BUYER DOES NOT WAIVE THE PROVISIONS
---
OF SECTION 1542 WITH RESPECT TO ANY EXCLUDED LIABILITIES.
CAM RES
---------------- -----------------
Buyer's Initials Seller's Initials
12. Obligations Retained by Seller. Without limiting Seller's obligations
------------------------------
with respect to the Excluded Liabilities in Article 10 hereof, Seller shall also
retain the following obligations following the Close of Escrow:
12.1 Employees of Seller. Seller shall retain all obligations relating
-------------------
to its existing or past employee relationships. Buyer shall have no obligation
to offer employment to, employ, or compensate the employees of Seller who
currently perform duties at or concerning the Real Property, and all
notifications to federal, state, or local governments concerning the effects of
the sale of the Real Property upon employees shall be the responsibility of
Seller.
12.2 Litigation Matters. Seller shall defend itself and the Real
------------------
Property and, if required, Buyer or its successors and assigns, against any
claims or causes of action raised with
35
<PAGE>
respect to the SAWPA Plume, the Ontario Litigation and/or the Mushegian
Litigation, as each is more fully described in Exhibit O attached hereto. In the
---------
event that such claims or causes of action are coupled with unrelated claims or
causes of action against Buyer, then Buyer shall have the right (a) to be
represented by the same counsel as Seller and to participate in the defense of
such claims or causes of action, in which case Buyer shall pay a reasonably
prorated portion of the defense costs; or (b) to defend itself against such
unrelated claims or causes of action, in which case Buyer shall engage separate
counsel for such purpose and shall pay all costs and expenses of such separate
counsel.
13. Casualty and Condemnation. Casualty and condemnation occurrences prior
-------------------------
to the Close of Escrow will have the following results:
13.1 Casualty. If, prior to the Close of Escrow, all or any portion
--------
of the Improvements on the Land are damaged or destroyed by an insured event,
Buyer shall purchase the Property without any reduction in the Purchase Price on
account of any diminishment of value resulting from such damage or destruction.
If, prior to the Close of Escrow, all or any portion of the Improvements on the
Land are damaged or destroyed by an uninsured event, Buyer shall have the right
(a) to purchase the Real Property without any reduction in the Purchase Price on
account of any diminishment of value resulting from such damage or destruction,
or (b) to terminate this Agreement. Buyer shall make such election by delivering
written notice to Seller within ten (10) business days after receiving written
notice of such damage or destruction. Buyer's failure to deliver notice of its
election within such ten (10) day period shall constitute Buyer's election of
alternative described in clause (b) hereof. In the event Buyer cannot or does
not terminate the Agreement pursuant to this Section 13.1, Buyer shall be
entitled at the Close of Escrow to an assignment by Seller to Buyer of Seller's
right, title and interest in and to any insurance proceeds arising out of such
damage or destruction.
13.2 Condemnation. If, prior to the Close of Escrow, all or any
------------
material portion of the Real Property is taken or proposed to be taken by
eminent domain, Buyer shall have the right (a) to purchase the Real Property
which has not been condemned without any reduction in the Purchase Price on
account of any diminishment of value resulting from such taking, or (b) to
terminate this Agreement. For purposes of this Agreement, a "material" portion
of the Real Property shall be deemed to be taken or proposed to be taken if it
would cost in excess of Two Hundred Fifty Thousand Dollars ($250,000) to repair
or replace the remaining portion of the Real Property. In the event Buyer elects
not to terminate this Agreement pursuant to this Section 13.2, or in the event
that a non-material portion of the Real Property is taken or proposed to be
taken by eminent domain, then this Agreement shall remain in full force and
effect and Buyer shall be entitled at the Close of Escrow to an assignment of
any condemnation awards arising out of such taking. Prior to the Closing Date,
Buyer and Seller shall jointly prosecute, at Buyer's expense, any claim for an
award with respect to a taking of the Real Property, which claim shall not be
compromised or settled without Buyer's consent.
13.3 Early Termination. Upon any termination of this Agreement
-----------------
pursuant to this Article 13, Buyer shall promptly be refunded the entire Deposit
and any interest accrued thereon (less all Title Company and Escrow cancellation
fees), and the Parties shall have no other rights or obligations under this
Agreement, except that Buyer's obligations under the Entry
36
<PAGE>
Permit and Buyer's and Seller's obligations under Sections 15.2, 15.9 and 15.16
of this Agreement shall survive the termination of this Agreement.
14. Indemnification Procedures.
--------------------------
14.1 Notice of Claim. With respect to any request for indemnification
---------------
made under this Agreement, any Exhibit hereto including, without limitation, the
Omnibus Assignment and Assumption Agreement, the Indemnitee shall give the
Indemnitor written notice thereof (together with a copy of any claim, process or
other legal pleading) promptly after becoming aware of such claim; provided,
--------
however, that the failure of any Indemnitee to give notice as provided in this
-------
Agreement or any Exhibit hereto shall not relieve any Indemnitor of its
indemnification obligations except to the extent that such Indemnitor is
actually prejudiced by such failure to give notice. Such notice shall describe
such claim in reasonable detail. Nothing in this Section 14.1 shall be deemed to
prevent a Party from making a claim under any available insurance policy, in
addition to pursuing indemnifications under this Agreement or any Exhibit
hereto.
14.2 Defense of Claim. An Indemnitor, at such Indemnitor's own
----------------
expense and through counsel chosen by such Indemnitor (which counsel shall be
reasonably acceptable to the Indemnitee), may, but shall have no obligation to,
elect to defend any claim. If an Indemnitor elects to defend a claim, then,
within ten (10) business days after receiving notice of such claim (or sooner,
if the nature of such claim so requires), such Indemnitor shall notify the
Indemnitee of its intent to do so, and such Indemnitee shall cooperate in the
defense of such claim (and pending such notice and assumption of defense, an
Indemnitee may take such steps to defend against such claim as, in such
Indemnitee's good faith judgment, are appropriate to protect its interests).
Such Indemnitor shall pay such Indemnitee's reasonable out-of-pocket expenses
incurred in connection with such cooperation. Such Indemnitor shall keep the
Indemnitee reasonably informed as to the status of the defense of such claim.
After notice from an Indemnitor to an Indemnitee of its election to assume the
defense of a claim, such Indemnitor shall not be liable to such Indemnitee for
any legal or other expenses subsequently incurred by such Indemnitee in
connection with the defense thereof other than those expenses referred to in the
preceding sentence; provided, however, that such Indemnitee shall have the right
-------- -------
to employ one law firm as counsel, together with a separate local law firm in
each applicable jurisdiction (if necessary) ("Separate Counsel"), to represent
----------------
such Indemnitee in any action or group of related actions (which firm or firms
shall be reasonably acceptable to the Indemnitor) if, in such Indemnitee's
reasonable judgment at any time, either a conflict of interest between such
Indemnitee and such Indemnitor exists in respect of such claim, or there may be
defenses available to such Indemnitee which are different from or in addition to
those available to such Indemnitor and the representation of both parties by the
same counsel would be inappropriate, and in that event: (a) the reasonable fees
and expenses of such Separate Counsel shall be paid by such Indemnitor (it being
understood, however, that the Indemnitor shall not be liable for the expenses of
more than one Separate Counsel (excluding local counsel) with respect to any
claim (even if against multiple Indemnitees)); and (b) each of such Indemnitor
and such Indemnitee shall have the right to conduct its own defense in respect
of such claim. If any Indemnitor elects not to defend against a claim, or fails
to notify an Indemnitee of its election as provided in this Section 14.2 within
the period of ten (10) business days described above, the Indemnitee may defend,
compromise and settle such claim and shall be entitled to indemnification
hereunder (to
37
<PAGE>
the extent permitted by this Agreement). Notwithstanding the foregoing, the
Indemnitor shall not, without the prior written consent of the Indemnitee (which
consent shall not be unreasonably withheld, conditioned or delayed), settle or
compromise any claim or consent to the entry of any judgment unless (x) there is
no finding or admission of any violation of law or any violation of the rights
of any person and no effect on any other claims that may be made against the
Indemnitee and (y) the sole relief provided is monetary damages that are paid in
full by the Indemnitor.
15. Miscellaneous.
-------------
15.1 Entire Agreement; Modification. This Agreement constitutes the
------------------------------
entire Agreement between the Parties hereto pertaining to the subject matter
hereof and supersedes all prior negotiations, agreements and understandings of
the Parties with respect to the subject matter hereof. All exhibits referred to
in this Agreement are attached and incorporated by this reference. This
Agreement may not be amended or otherwise changed except by a writing executed
by both Parties.
15.2 Confidentiality. Until the Close of Escrow, Buyer agrees that
---------------
the terms and conditions of this Agreement and any information concerning the
Property obtained either from Seller or through other third parties shall be
used solely for the purpose of evaluating the Property. Unless and until Buyer
has completed the acquisition of the Real Property, such information shall be
kept confidential by Buyer and its advisors, except as necessary to develop,
sell and finance the Real Property and to perform its obligations pursuant to
this Agreement or as required by the rules of Securities Exchange Commission.
Seller understands that Buyer may need to disclose the such information or
portions thereof to those of Buyer's directors, officers, employees, agents,
advisors, attorneys, accountants, consultants, lenders, investment bankers,
investment partners and financial advisors (collectively, "Representatives") who
---------------
need to know such information for the purpose of evaluating or financing Buyer's
acquisition of the Property or in connection with obtaining the Insurance
Policies, and also to developers in connection with Buyer's evaluation of the
feasibility of Buyer's proposed development of the Real Property. Prior to any
such disclosure, however, Buyer shall inform such Representatives and developers
of the confidential nature of such information, and such Representatives of
Buyer and developers shall agree to be bound by this statement of
confidentiality and not to disclose such information to any other person. Buyer
has also agreed to be responsible for any breach of this statement of
confidentiality by Buyer or its Representatives. In the event that Buyer or any
of its Representatives become legally compelled to disclose any of such
information, Buyer and its Representatives shall provide Seller with prompt
prior written notice of such requirements so that Seller may seek a protective
order or other appropriate remedy and/or waive compliance with the terms of this
statement of confidentiality. In the event that Buyer fails to complete the
acquisition of the Property, Buyer and its Representatives will promptly return
to Seller all of such written information which has been provided to Buyer and
its Representatives will destroy all copies of any analysis, compilations,
studies or other documents prepared by Buyer or for its use containing or
reflecting any such information. Buyer acknowledges that Seller is a publicly
traded company and is required to publicly disclose certain material
information.
15.3 Further Assurances. Each Party hereto shall from and after the
------------------
date hereof execute and acknowledge and deliver such further instruments and
perform such additional acts
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as any other Party may reasonably request to effectuate the intent of this
Agreement; provided, however, that no such request may require any Party to make
-------- -------
any material expenditure.
15.4 Notices. Any notices, demands or other communications required
-------
or permitted to be given by any provision of this Agreement or which any Party
may desire to give the other shall be given in writing, delivered personally or
sent by certified mail, postage pre-paid, facsimile, or by Federal Express or
similar generally recognized delivery service regularly providing proof of
delivery, addressed to a Party or Escrow Holder, at the addresses set forth
below, or to such other address as said Party or Escrow Holder may hereafter or
from time to time designate by written notice to the other Party and Escrow
Holder.
To Seller: With a copy to:
--------- --------------
Kaiser Ventures Inc. Kaiser Ventures Inc.
Kaiser Steel Land Development Inc. Kaiser Steel Land Development Inc.
3633 Inland Empire Blvd. 3633 Inland Empire Blvd.
Suite 850 Suite 850
Ontario, CA 91764 Ontario, CA 91764
Attn.: Richard Stoddard Attn.: Terry Cook
Telephone: (909) 483-8508 Telephone: (909) 483-8511
Telecopier: (909) 944-6605 Telecopier: (909) 944-6605
To Buyer: With a copy to:
-------- --------------
CCG Ontario, LLC Catellus Development Corporation
c/o Catellus Development Corporation 201 Mission Street, 2/nd/ Floor
3990 Westerly Place, Suite 200 San Francisco, CA 94105
Newport Beach, CA 92660 Attn: Kathleen Smalley, Esq.
Attn: Charles McPhee Telephone: (415) 974-4667
Telephone: (949) 251-2367 Telecopier: (415) 974-4613
Telecopier: (949) 442-1409
And to O'Melveny & Myers LLP
------
400 South Hope Street, 15/th/ Floor
Los Angeles, CA 90071
Attention: Ann C. Menard, Esq.
Telephone: (213) 430-6480
Telecopier: (213) 430-6407
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To Escrow Holder:
----------------
Chicago Title Company
560 East Hospitality Lane
San Bernardino, CA 92408
Attn.: Kathy Benson
Telephone: (909) 884-0448
Telecopier: (909) 384-7855
A copy of any notice, demand or other communication given to or by
Escrow Holder by or to either Party shall be given to the other Party at the
same time. Notice by United States Postal Service or delivery service as
provided herein shall be considered given on the earlier of the date on which
said notice is actually received by the Party to whom such notice is addressed,
or as of the date of delivery, whether accepted or refused, established by the
United States Postal service return receipt or such overnight carrier's proof of
delivery, as the case may be. Any such notice given by facsimile shall be deemed
given upon receipt of the same by the Party to which it is addressed, provided
that such facsimile was received between the hours of 8:00 a.m. and 5:00 p.m.
local time of the recipient of the facsimile on a business day. Receipt of a
facsimile at any other time will be deemed received on the next business day.
15.5 Computation of Time. All references to a period of "days" shall
-------------------
mean calendar days unless otherwise specifically set forth herein. If the last
day for any period or any date pursuant to this Agreement is a weekend or
holiday, such last day or date shall automatically be deemed to be the next
succeeding business day. A day shall be construed to be a business day if banks
are open for business on that day in the county in which the Real Property is
located.
15.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, and bear the signature of each Party on a separate counterpart,
each of which when so executed and delivered shall be deemed an original but all
of which taken together shall constitute but one and the same instrument.
15.7 Time of the Essence. Seller and Buyer hereby acknowledge and
-------------------
agree that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof and that failure to timely perform
any of the terms, conditions, obligations or provisions hereof by either Party
shall constitute a material breach of and a non-curable (but waivable) default
under this Agreement by the Party so failing to perform.
15.8 Binding Effect; Assignment. This Agreement shall be binding upon
--------------------------
and inure to the benefit of Seller and Buyer and their respective successors and
permitted assigns. Buyer may assign its rights and obligations under this
Agreement with Seller's prior written consent, which shall not be unreasonably
withheld. No assignment of any rights or obligations hereunder shall be deemed
to release any party hereto from its obligations hereunder unless the non-
assigning party expressly agrees to such release.
15.9 Enforcement Costs. Should either Party institute any action or
-----------------
proceeding to enforce any provision of this Agreement, or for damages by reason
of an alleged breach of any
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provision of this Agreement, or for a declaration of rights hereunder, the
prevailing Party in such action, on trial or appeal, shall be entitled to
receive from the other Party all costs and expenses of such action or
proceeding, including reasonable attorneys', consultants', experts' and
engineers' fees incurred by the prevailing Party in connection with such action
or proceeding. Such costs and expenses shall include, without limitation,
attorneys', consultants' and engineers' fees, costs and expenses incurred in
trial, on appeal and in post-judgment motions, garnishment, levy and debtor and
third party examinations, discovery, and bankruptcy proceedings.
15.10 Waivers. No Party shall be deemed to have waived any right
-------
which such Party has under this Agreement, unless this Agreement expressly
provides a period of time within which such right may be exercised and such
period has expired, or unless such Party has expressly waived the same in
writing or unless this Agreement specifies that a waiver shall be deemed to have
occurred. Except as otherwise provided herein, the waiver by either Party of a
right, claim or default by the other Party hereunder shall not be deemed to be a
waiver of any other right, claim or default, or any subsequent default of the
same kind. No waiver of a condition shall limit either Party's liability for a
breach of this Agreement.
15.11 No Third Party Beneficiary. Except as otherwise expressly set
--------------------------
forth herein, no term or provision of this Agreement or the exhibits hereto is
intended to or shall be for the benefit of any person or entity not a party
hereto, and no such other person or entity shall have any right or cause of
action hereunder, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any Party to this
Agreement.
15.12 Governing Law. The Parties hereto expressly agree that this
-------------
Agreement shall be governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of California without the application of
its choice of law rules.
15.13 Construction. Headings at the beginning of each paragraph and
------------
subparagraph are solely for the convenience of the Parties and are not a part of
the Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and vice
versa. This Agreement shall not be construed as if it had been prepared by one
of the Parties, but rather as if both Parties had prepared the same. Unless
otherwise indicated, all references to paragraphs and subparagraphs are to this
Agreement. All exhibits referred to in this Agreement are attached and
incorporated by this reference. In the event the date on which Buyer or Seller
is required to take any action under the terms of this Agreement is not a
business day, the action shall be taken on the next succeeding business day.
15.14 Partial Invalidity. If any term or provision of this Agreement
------------------
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this Agreement shall be valid and be enforced to
the fullest extent permitted by Law.
15.15 Cumulative Remedies. No remedy conferred upon a Party in this
-------------------
Agreement is intended to be exclusive of any other remedy herein or by law
provided or
41
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permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law, in equity or by
statute (except as otherwise expressly herein provided).
15.16 Indemnity. Buyer shall indemnify, defend and hold Seller
---------
harmless from and against any losses, damages, costs and expenses (including,
but not limited to, attorneys' fees and costs) incurred by Seller by reason of
any breach or inaccuracy of Buyer's representations set forth in Section 8.3.
Seller shall indemnify, defend and hold Buyer harmless from and against any
losses, damages, costs and expenses (including, but not limited to, attorneys'
fees and costs) incurred by Buyer by reason of any breach or inaccuracy of
Seller's representations set forth in Section 7.4 or as a result of any
commission claimed as a result of Seller's acts by EYKL for any matter or by any
other broker described in Exhibit T attached hereto for matters other than those
described in Exhibit T. The provisions of this Section 15.16 shall survive the
Close of Escrow and the recordation of the Deed for a period of thirty-six (36)
months, and any action under this Section 15.16 must be filed and served within
thirty-nine (39) months from the date of recordation of the Deed.
15.17 Pre-Closing Conveyance. Prior to the Close of Escrow, Kaiser
----------------------
Steel Land Development shall be entitled to convey its interest in the Real
Property by grant deed to Kaiser Ventures, Inc. in which event the Grant Deed
required hereunder shall be delivered solely by Kaiser Ventures, Inc.
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<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
dates written below.
SELLER: KAISER VENTURES INC.,
------
a Delaware corporation
Date Executed: July 13, 2000 By: /s/ Richard E. Stoddard
--------------------- -------------------------------
Its: Chairman & CEO
----------------------------
KAISER STEEL LAND DEVELOPMENT INC.,
a Delaware Corporation
Date Executed: July 13, 2000 By: /s/ Lee R. Redmond
-------------------- -------------------------------
Its: Vice President
----------------------------
Buyer: CCG ONTARIO, LLC,
-----
a Delaware limited liability company
By: Catellus Commercial Group, LLC
a Delaware limited liability company
Its sole member
By: /s/ Charles A. McPhee
----------------------------
Its: Senior Vice President
Date Executed: July 13, 2000
---------------------
43
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RECEIVED AND ACCEPTED THIS _____ DAY OF _______________, 2000.
CHICAGO TITLE INSURANCE
COMPANY, AS ESCROW HOLDER
By: _________________________________
Its: ______________________________
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Exhibits Available Upon the Written
===================================
Request of the
==============
Securities and Exchange Commission
==================================
45
