<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to __________
Commission file number 1-10153
HOMEFED CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-0304982
------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
529 East South Temple, Salt Lake City, Utah 84102
------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(801) 521-1066
----------------------------------------------------
(Registrant's telephone number, including area code)
N/A
---------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes [X] No
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed
all documents and reports required to be filed by Sections 12, 13 or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
Yes [X] No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable date.
On August 12, 1998, there were 10,000,000 outstanding shares of the
Registrant's Common Stock, par value $.01 per share.
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
HomeFed Corporation and Subsidiaries
Consolidated Balance Sheets
June 30, 1998 and December 31, 1997
(Dollars in thousands, except par value)
----------------------------------------
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
------------- -------------
(Unaudited)
<S> <C> <C>
ASSETS
Land and real estate held for development $ 9,642 $ 9,964
Cash and cash equivalents 2,982 4,195
Restricted cash 1,071 1,073
Investments 77 75
Deposits and other assets 236 462
------------- -------------
TOTAL $ 14,008 $ 15,769
============= =============
LIABILITIES
Note payable to Leucadia Financial Corporation $ 26,085 $ 26,085
Accounts payable and accrued liabilities 435 423
------------- -------------
Total liabilities 26,520 26,508
------------- -------------
STOCKHOLDERS' DEFICIT
Common Stock, $.01 par value;
100,000,000 shares authorized;
10,000,000 shares outstanding 100 100
Additional paid-in capital 339,904 339,904
Accumulated deficit (352,516) (350,743)
------------- -------------
Total stockholders' deficit (12,512) (10,739)
------------- -------------
TOTAL $ 14,008 $ 15,769
============= =============
</TABLE>
See notes to interim consolidated financial statements.
2
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HomeFed Corporation and Subsidiaries
Consolidated Statements of Operations
For the periods ended June 30, 1998 and 1997
(Dollars in thousands, except per share amounts)
(Unaudited)
---------------------------------------------------
<TABLE>
<CAPTION>
For the Three For the Six
Month Period Ended Month Period Ended
June 30, June 30,
-------------------- --------------------
1998 1997 1998 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Sales of residential properties $ - $ 1,019 $ 891 $ 1,279
Cost of sales - 1,010 894 1,275
---------- ---------- ---------- ----------
Gross profit (loss) - 9 (3) 4
Interest expense relating to Leucadia
Financial Corporation 780 735 1,552 1,442
General and administrative expenses 174 162 305 331
Management fees to Leucadia Financial
Corporation 13 17 30 46
---------- ---------- ---------- ----------
Loss from operations (967) (905) (1,890) (1,815)
Other income - net 64 40 134 77
---------- ---------- ---------- ----------
Loss before income taxes (903) (865) (1,756) (1,738)
Income tax expense (8) (9) (17) (20)
---------- ---------- ---------- ----------
Net loss $ (911) $ (874) $ (1,773) $ (1,758)
========== ========== ========== ==========
Basic loss per common share: $ (0.09) $ (0.09) $ (0.18) $ (0.18)
========== ========== ========== ==========
Diluted loss per common share:
$ (0.09) $ (0.09) $ (0.18) $ (0.18)
========== ========== ========== ==========
</TABLE>
See notes to interim consolidated financial statements.
3
<PAGE>
HomeFed Corporation and Subsidiaries
Consolidated Statements of Changes in Stockholders' Deficit
For the six months ended June 30, 1998 and 1997
(Dollars in thousands)
(Unaudited)
------------------------------------------------------------
<TABLE>
<CAPTION>
Common
Stock Additional Total
$.01 Par Paid-In Accumulated Stockholders'
Value Capital Deficit Deficit
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Balance, January 1, 1997 $ 100 $ 339,904 $ (347,166) $ (7,162)
Net loss (1,758) (1,758)
------------ ------------ ------------ ------------
Balance, June 30, 1997 $ 100 $ 339,904 $ (348,924) $ (8,920)
============ ============ ============ ============
Balance, January 1, 1998 $ 100 $ 339,904 $ (350,743) $ (10,739)
Net loss (1,773) (1,773)
------------ ------------ ------------ ------------
Balance, June 30, 1998 $ 100 $ 339,904 $ (352,516) $ (12,512)
============ ============ ============ ============
</TABLE>
See notes to interim consolidated financial statements.
4
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HomeFed Corporation and Subsidiaries
Consolidated Statements of Cash Flows
For the six months ended June 30, 1998 and 1997
(Dollars in thousands)
(Unaudited)
-----------------------------------------------
<TABLE>
<CAPTION>
1998 1997
---------- ----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (1,773) $ (1,758)
Adjustments to reconcile net loss to net cash provided
by (used in) operating activities:
Accrued interest added to notes payable to
Leucadia Financial Corporation - 1,442
Changes in operating assets and liabilities:
Land and real estate held for development 322 1,142
Deposits and other assets 226 31
Accounts payable and accrued liabilities 12 (200)
Decrease in restricted cash 2 9
---------- ----------
Net cash provided by (used in) operating activities (1,211) 666
---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Increase in investments (2) (2)
---------- ----------
Net cash used in investing activities (2) (2)
---------- ----------
Net increase (decrease) in cash (1,213) 664
Cash and cash equivalents, beginning of period 4,195 1,809
---------- ----------
Cash and cash equivalents, end of period $ 2,982 $ 2,473
========== ==========
</TABLE>
See notes to interim consolidated financial statements.
5
<PAGE>
HOMEFED CORPORATION AND SUBSIDIARIES
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies. The unaudited interim
consolidated financial statements, which reflect all adjustments (consisting
only of normal recurring items) that management believes are necessary to
present fairly the financial position, results of operations and cash flows,
should be read in conjunction with the audited consolidated financial
statements for HomeFed Corporation ("HomeFed" or the "Company") for the year
ended December 31, 1997 which are included in the Company's Annual Report
on Form 10-K for such year (the "1997 10-K"). Results of operations for
interim periods are not necessarily indicative of annual results of
operations. The consolidated balance sheet at December 31, 1997 was derived
from the Company's audited consolidated financial statements in the 1997
10-K, and does not include all disclosures required by generally accepted
accounting principles for annual financial statements.
Certain amounts from prior periods have been reclassified to be consistent
with the 1998 presentation.
2. Chapter 11 Bankruptcy and Plan of Reorganization. On July 3, 1995, the
Company emerged from Chapter 11 Bankruptcy protection pursuant to its
court approved plan of reorganization (the "Plan"). The Plan was
principally funded by a $20,000,000 convertible note (the
"Convertible Note") issued to Leucadia Financial Corporation ("LFC"),
an indirect wholly-owned subsidiary of Leucadia National Corporation
("Leucadia"), and by LFC's purchase of 2,700,000 newly issued $.01
par value common shares ("Common Stock") of the Company for $810,000.
As part of the Plan, the Company settled pending litigation with the
Resolution Trust Company (the "RTC") in its capacity as receiver and
conservator of HomeFed Bank, F.S.B. ("HomeFed Bank"), a former subsidiary
of the Company. Under the RTC settlement, the Company paid the RTC
$3,100,000 and the Company received a receivership certificate from the RTC.
The receivership certificate was redeemed by the RTC for $1,402,000 which
was paid to the Company. In addition, the RTC settlement provided that the
Company was entitled to receive $850,000 from any tax refunds received by
the RTC relating to HomeFed Bank for years prior to 1992. The Company
received $850,000 related to such tax refunds in January 1998. Thereafter,
the Company paid the entire $850,000 to general unsecured creditors in
accordance with the Plan as described below.
Also under the Plan, general unsecured creditors, principally the holders
of the Company's convertible subordinated debentures, of which LFC was the
largest holder, received a pro rata share of (i) $16,900,000, (ii) the
6
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Company's rights to the RTC tax refund relating to HomeFed Bank and the
$1,402,000 receivership certificate proceeds, (iii) 1,500,000 shares of
Common Stock valued by the Bankruptcy Court at $.30 per share, and (iv) an
interest in the litigation trust described below.
The Plan also provided for the issuance of 5,800,000 new shares of Common
Stock to the pre-effective date stockholders of the Company and the old
shares of common stock (approximately 21,484,000 shares) were canceled. As
a result of shares received as a general unsecured creditor and shares
purchased as described above, LFC owns approximately 41.2% of the Company's
Common Stock, without giving effect to the Common Stock that LFC may acquire
in the future pursuant to the terms of the Convertible Note.
The Company's Restated Certificate of Incorporation contains certain
transfer restrictions with respect to the Company's stock. Generally, such
provisions restrict a person's ability to accumulate 5% or more of the
Company's Common Stock, as well as the ability of a 5% stockholder to
acquire additional shares of Common Stock, in each case, after giving effect
to numerous rules of attribution, aggregation and calculation. In addition,
pursuant to the Plan, the Company is prohibited from issuing additional
shares of stock until July 3, 1999. The Company's Restated Certificate of
Incorporation further prohibits the Company from issuing or redeeming any
shares of stock as long as the Convertible Note is outstanding. None of the
foregoing restrictions will prevent LFC's exchange of the Convertible Note
for Common Stock. See Note 5.
3. Earnings Per Share. Basic loss per share of Common Stock for all periods
presented was calculated by dividing the net loss by the 10,000,000
shares of Common Stock issued on July 3, 1995.
Diluted loss per share of Common Stock was calculated as described above.
The number of shares used to calculate diluted loss per share was 10,000,000
for the periods ended June 30, 1998 and 1997. The calculation of diluted
loss per share does not include Common Stock equivalents of 54,400,000 and
54,400,000, for the three-month periods ended June 30, 1998 and 1997,
respectively, and 54,400,000 and 53,441,352, for the six-month periods ended
June 30, 1998 and 1997, respectively, which are antidilutive.
4. Related Party Transactions. Notes payable consists of the Convertible Note
issued to LFC. The Convertible Note bears interest at 12% per annum
payable quarterly; however, interest is only paid if the Company has
sufficient funds available, as determined pursuant to the provisions
of the loan agreement. Unpaid interest is added to the principal
balance each quarter. The Company paid $1,552,000 in interest on the
Convertible Note during the six-month period ended June 30, 1998.
7
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Quarterly interest and principal payments are due on the Convertible
Note beginning September 1998, continuing through maturity on July 3,
2003. Beginning July 6, 1998, LFC may convert at any time all or a
portion of the Convertible Note, including any accrued interest
previously added to the principal balance, into Common Stock up to a
maximum of 54,400,000 shares of Common Stock, at a conversion price
of $.45 per share. See Note 5.
LFC has agreed to provide up to an aggregate of $15,000,000 of construction
financing to certain of the Company's subsidiaries and their affiliates
while the Convertible Note is outstanding. The construction financing bears
interest based on the prime rate, and any unpaid interest is added to the
principal balance at the end of each month. Payments of principal and
interest on the loans are payable on demand, and if payments are not made
upon demand, the applicable interest rate is increased by 3% per annum. A
payment equal to 110% of the construction cost of the property being
released is required in order to release property from the construction
financing lien. No amounts were outstanding under the construction financing
as of June 30, 1998.
Pursuant to an Administrative Services Agreement dated March 1, 1996, as
amended (the "Administrative Services Agreement"), LFC provides
administrative services to the Company for an annual fee, payable in monthly
installments. The Administrative Services Agreement provides that LFC and
the Company will negotiate in good faith to determine such annual fee. The
Company and LFC have agreed that the fee to be paid to LFC for the one year
periods beginning March 1, 1997 and 1998 will be $68,274 and $56,101,
respectively. The Administrative Services Agreement will terminate on March
1, 1999; provided, however, that LFC may terminate the Administrative
Services Agreement prior to March 1, 1999, upon 30 days written notice, if
the Company and LFC are unable to reach an agreement regarding the
compensation to be paid to LFC for any period.
On February 27, 1998, the Company purchased 19 lots at the Silverwood
project from LFC for a purchase price of $500,000.
5. Subsequent Events. On July 31, 1998, the Company sold its entire 97
lot interest in the Silverwood project with a book value of approximately
$2,890,000 to Southfork Partnership ("Southfork") for $3,000,000, less
closing costs. As a result of this sale, Southfork also assumed up to
$1,185,000 of the Company's liability to two California school districts
under cost sharing agreements.
On August 14, 1998, the Company entered into a development management
agreement with a subsidiary of Leucadia to develop a master-planned
residential project located in San Marcos, San Diego County, California.
The agreement provides for the Company to receive a profit participation,
if any, after payment of obligations to certain creditors of the project,
8
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and fees for project management and marketing services based upon the
revenues derived from the project. In connection with this management
agreement, the Company has also agreed to sell to Leucadia in July 1999
additional shares of the Company's Common Stock, subject to certain
conditions, such that Leucadia's total interest in the Company will be
increased to 87.5%. Based on the current outstanding shares of the Company,
Leucadia would purchase approximately 37,056,000 shares in July 1999 at an
aggregate cost of approximately $6,670,000. Upon the signing of the
agreement, Leucadia advanced $5,000,000 of the purchase price of the shares
to the Company, which is refundable in the event the stock purchase
transaction is not consummated. Pursuant to this stock purchase agreement,
the Company has increased the size of its Board of Directors from three to
five directors and has selected two designees of Leucadia to fill such
additional board seats. In addition, effective August 14, 1998, the Company
and LFC agreed to restructure the terms of the Convertible Note in the
principal amount of approximately $26,462,000 (reflecting the original loan
outstanding together with additions to principal resulting from accrued and
unpaid interest thereon to the date of the restructuring), providing for an
extension of the maturity date to December 31, 2004, a reduction in the
interest rate to 6% and the elimination of the convertibility feature of the
Convertible Note.
9
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The purpose of this section is to discuss and analyze the Company's
consolidated financial condition, liquidity and capital resources and results of
operations. This analysis should be read in conjunction with the Management's
Discussion and Analysis of Financial Condition and Results of Operations
contained in the Company's 1997 10-K.
General
The Company is a holding company primarily engaged in the investment
in and development of residential real estate projects in Northern California,
through its wholly-owned subsidiaries HomeFed Communities, Inc. and HomeFed
Resources Corporation. The Company's subsidiaries enter into contracts with
local builders and developers to provide construction, marketing and management
services.
Liquidity and Capital Resources
For the six-month period ended June 30, 1998, net cash was used in
operating activities, principally to fund interest and general and
administrative expenses. For the six-month period ended June 30, 1997, net cash
was provided by operating activities, principally from sales of residential
properties. The Company is a holding company whose principal source of funds is
dividends or borrowings from its subsidiaries. As a result, the Company is
dependent upon the cash flow, if any, from the real estate development projects
of its subsidiaries in order to pay its expenses, including debt service
payments on the Convertible Note. As more fully described in the 1997 10-K,
principal and interest payments are due on the Convertible Note beginning
September 1998. The Company paid $1,552,000 in interest on the Convertible Note
during the six-month period ended June 30, 1998.
LFC has agreed to provide up to an aggregate of $15,000,000 of construction
financing to certain of the Company's subsidiaries and their affiliates while
the Convertible Note is outstanding. Amounts outstanding under the construction
financing are collateralized by certain assets of the Company's subsidiaries or
their affiliates, including real estate under development. To facilitate the
sale of property to home buyers, LFC has agreed to release property from the
construction financing lien when it receives 110% of the assigned cost of
construction as a payment towards the outstanding loan. The construction
financing bears interest based upon the prime rate, and any unpaid interest is
added to the principal balance at the end of each month. As of June 30, 1998,
there was no outstanding balance on the construction financing. The Company
believes that the construction financing provided by LFC will be adequate to
10
<PAGE>
complete its current development plans. Any additional financing required from
a lender other than LFC cannot be collateralized by any of the Company's assets
without LFC's consent. Accordingly, the Company may be unable to obtain
additional financing from sources other than LFC.
As more fully described in the 1997 10-K, in October 1996 the Company
granted options to The Forecast Group, L.P. (Registered Tradename)
("The Forecast Group") to purchase certain lots at the Paradise Valley project
for a total purchase price of $5,781,950. The option with respect to 81 of
these lots (the "Unit 4 Option") and the option with respect to the remaining 75
lots (the "Unit 3 Option") became exercisable in 1997. The Unit 3 Option was
not exercised and expired on May 1, 1998. The Unit 4 Option expires on December
7, 1998.
If exercised in its entirety, the Company would receive an aggregate
of $3,610,650, less closing costs, pursuant to the sales of the lots covered by
the Unit 4 Option. The sale of the first 20 lots covered by the Unit 4 Option
closed on November 7, 1997 and the Company received $891,520, less closing
costs. The sale of the second 20 lots closed on February 27, 1998 and the
Company received $891,520, less closing costs. The sale of an additional 21
lots closed on July 6, 1998, and the Company received $936,096 less closing
costs. If the remainder of the Unit 4 Option is exercised, 20 lots would be sold
on December 7, 1998. It is uncertain whether the remainder of the Unit 4 Option
will be exercised; however, to the extent the Unit 4 Option is exercised, the
Company expects to use the proceeds from the sale of the lots covered by the
Unit 4 Option for future real estate development, debt service payments on the
Convertible Note and for working capital needs.
The Company intends to solicit offers from potential purchasers for
the 75 lots previously covered by the Unit 3 Option. The Company intends to sell
these 75 lots once an acceptable offer has been received.
On February 27, 1998, the Company purchased 19 lots at the Silverwood
project from LFC for a purchase price of $500,000.
On July 31, 1998, the Company sold its entire 97 lot interest in the
Silverwood project to Southfork Partnership ("Southfork") for $3,000,000, less
closing costs. As a result of this sale, Southfork also assumed up to $1,185,000
of the Company's liability to two California school districts under cost sharing
agreements.
On August 14, 1998, the Company entered into a development management
agreement with a subsidiary of Leucadia National Corporation ("Leucadia") to
develop a master-planned residential project located in San Marcos, San Diego
County, California. The agreement provides for the Company to receive a profit
participation, if any, after payment of obligations to certain creditors of the
project, and fees for project management and marketing services based upon the
11
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revenues derived from the project. In connection with this management
agreement, the Company has also agreed to sell to Leucadia in July 1999
additional shares of the Company's Common Stock, subject to certain conditions,
such that Leucadia's total interest in the Company will be increased to 87.5%.
Based on the current outstanding shares of the Company, Leucadia would purchase
approximately 37,056,000 shares in July 1999 at an aggregate cost of
approximately $6,670,000. Upon the signing of the agreement, Leucadia advanced
$5,000,000 of the purchase price of the shares to the Company, which is
refundable in the event the stock purchase transaction is not consummated. In
addition, effective August 14, 1998, the Company and LFC agreed to restructure
the terms of the Convertible Note in the principal amount of approximately
$26,462,000 (reflecting the original loan outstanding together with additions
to principal resulting from accrued and unpaid interest thereon to the date of
the restructuring), providing for an extension of the maturity date
to December 31, 2004, a reduction in the interest rate to 6% and the elimination
of the convertibility feature of the Convertible Note.
Results of Operations
Sales of residential properties decreased in the six-month period
ended June 30, 1998 as compared to the same period in 1997 as no homes were sold
in 1998 and residential lots were sold at lower prices in 1998 than 1997. Sales
of residential properties decreased in the three-month period ended June 30,
1998 as compared to the same period in 1997 since no residential lots were sold
in 1998 while 20 lots were sold in 1997.
The decrease of cost of sales in the 1998 period as compared to the
1997 period reflects the reduced level of sales and value of land sold. Gross
profit percentages reflect the mix of residential properties sold.
Interest expense reflects the interest due on the Convertible Note to
LFC of approximately $780,000 and $1,552,000 for the three-month and six-month
periods ended June 30, 1998, respectively, which was paid by the Company.
Interest expense for the three-month and six-month periods ended June 30, 1997
reflects the interest due on the Convertible Note to LFC of approximately
$735,000 and $1,442,000, respectively, which was not paid and was added to the
principal balance of the Convertible Note pursuant to the loan agreement.
Income tax expense for all periods presented principally relates to
state franchise taxes. The Company has not recorded federal income tax benefits
for its operating losses due to the uncertainty of sufficient future taxable
income which is required in order to record such tax benefits.
The Year 2000 Issue
The Company believes that it will not incur any material additional
expenses to modify computer hardware or software due to the upcoming change in
the century.
12
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Cautionary Statement for Forward-Looking Information
Statements included in this Management's Discussion and Analysis of
Financial Condition and Results of Operations may contain forward-looking
statements. Such forward-looking statements are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995. Such
statements may relate, but not be limited, to projections of revenues, income or
loss, capital expenditures, the expected development schedule of existing real
estate projects, plans for growth and future operations, financing needs, as
well as assumptions relating to the foregoing. Forward-looking statements are
inherently subject to risks and uncertainties, some of which cannot be predicted
or quantified. When used in this "Management's Discussion and Analysis of
Financial Condition and Results of Operations," the words "estimates",
"expects", "anticipates", "forecasts", "plans", "intends" and variations of such
words and similar expressions are intended to identify forward-looking
statements that involve risks and uncertainties. Future events and actual
results could differ materially from those set forth in, contemplated by or
underlying the forward-looking statements.
13
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PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Annual Meeting of Stockholders of the Company was held on May 18, 1998. At
the meeting:
1. The following persons were elected as Directors of the Company to
serve until the next Annual Meeting or until their successors are
elected and qualified.
Name Votes For Votes Against
----------------- ------------ ------------------
Timothy Considine 8,658,608 70,572
Michael A. Lobatz 8,674,457 54,723
2. The selection of PricewaterhouseCoopers LLP as independent auditors
to audit the Consolidated Financial Statements of the Company and
its subsidiaries for the year ended December 31, 1998 was ratified
by the stockholders as follows:
Votes For: 8,671,887
Votes Against: 26,140
Abstentions: 31,153
Item 5. Other Information
Patricia A. Wood retired from her position as President of the Company,
effective May 18, 1998, in order to pursue other interests. In addition, Ms.
Wood declined to stand for reelection at the Company's Annual Meeting of
Stockholders held on May 18, 1998. Subsequent to the Annual Meeting, the Board
of Directors appointed Paul J. Borden as a director to fill the vacancy created
by Ms. Wood's retirement. The Board of Directors also appointed Mr. Borden as
President of the Company. Mr. Borden is a Vice President of Lecuadia National
Corporation.
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed with this report.
10.1 Real Estate Purchase Agreement and Escrow Instructions between
Southfork Partnership and Northfork Communities
27 Financial Data Schedule
(b) No report on Form 8-K was filed during the quarter for which this
report is filed.
14
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
HOMEFED CORPORATION
/s/ Corinne A. Maki
-------------------------------
CORINNE A. MAKI, Treasurer
(Authorized Signatory and
Principal Financial and
Accounting Officer)
Date: August 14, 1998
15
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INDEX TO EXHIBITS
Exhibits
10.1 Real Estate Purchase Agreement and Escrow Instructions between
Southfork Partnership and Northfork Communities
27 Financial Data Schedule.
16
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REAL ESTATE PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
between
SOUTHFORK PARTNERSHIP
and
NORTHFORK COMMUNITIES
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1. The Transaction................................................1
ARTICLE 2. Purchase Price; Assumption of Liabilities......................1
2.1 Amount and Payment.............................................1
2.2 Assumption of Liabilities......................................1
2.3 School District Reimbursements.................................1
2.3.1 Reimbursements to School Districts....................2
2.3.2 Reimbursements from School Districts..................3
ARTICLE 3. Completion of Sale..............................................3
3.1 Place and Date..................................................3
ARTICLE 4. Title to the Property...........................................4
4.1 Review of Preliminary Report....................................4
4.2 Title Delivered at Closing......................................4
ARTICLE 5. Review of the Property..........................................5
5.1 Delivery of Documents...........................................5
5.2 Access for Review...............................................5
5.3 Entitlements....................................................6
ARTICLE 6. Representations and Warranties..................................6
6.1 Seller..........................................................6
6.2 Buyer...........................................................7
6.3 Survival of Representations and Warranties......................7
ARTICLE 7. Specific Covenants..............................................7
7.1 Seller..........................................................7
7.2 Buyer...........................................................8
7.3 Environmental Agreement.........................................8
7.4 Confidentiality.................................................9
7.5 Broker's Commission............................................10
7.6 Real Property Tax Refunds......................................10
7.7 Survival of Covenants and Agreements...........................10
ARTICLE 8. Conditions Precedent...........................................10
8.1 Seller.........................................................10
8.2 Buyer..........................................................10
ARTICLE 9. Closing........................................................11
9.1 Procedure......................................................11
9.2 Possession.....................................................11
9.3 Closing Costs..................................................11
9.4 Prorations.....................................................11
ARTICLE 10. General........................................................12
10.1 Notices........................................................12
10.2 Assignment.....................................................12
10.3 Attorneys' Fees................................................12
10.4 Escrow Holder Authorized to Complete Documents.................12
-i-
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10.5 Recordation of Documents.......................................12
10.6 Delivery of Documents and Funds................................13
10.7 Performance by Escrow Holder...................................13
10.8 Risk of Loss...................................................13
10.9 Condemnation...................................................13
10.10 Interpretation.................................................13
10.11 Titles, Captions and Paragraphs................................13
10.12 Gender.........................................................13
10.13 No Waiver......................................................13
10.14 Modifications..................................................14
10.15 Severability...................................................14
10.16 Merger of Prior Agreements and Understandings..................14
10.17 Time of Essence................................................14
10.18 Counterparts...................................................14
10.19 Exhibits Incorporated by Reference.............................14
10.20 Computation of Time............................................14
10.21 Buyer's Materials Concerning Property..........................14
10.22 Other Documents; Cooperation of Parties........................14
10.23 Preliminary Change of Ownership Report.........................14
10.24 Not an Offer...................................................14
First Referred to
in Article/Section:
Exhibit A Property 1.1
Exhibit B Grant Deed 4
Exhibit C Assignment 9.1
Exhibit D Certificate of Non-Foreign Status 9.1
Exhibit E Certificate of Status
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<PAGE>
REAL ESTATE PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
THIS REAL ESTATE PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
("Agreement") is made on July __, 1998, between Southfork Partnership,
a California general partnership ("Buyer"), and Northfork Communities, a
California general partnership ("Seller"), in consideration of the
covenants in this Agreement and for other valuable consideration
acknowledged by the parties as adequate, and with reference to the
following facts:
A. The subject of this Agreement is that certain land situated
in the County of Placer, State of California, more particularly
described in Exhibit A attached hereto and incorporated herein ("Land").
The Land is subject to a Tentative Subdivision Map dated April, 1992
("Tentative Subdivision Map"), which will subdivide the Land into 97
single-family residential lots ("Lots").
B. Buyer desires to purchase the Property (as defined in
Section 1.1) and Seller desires to sell the Property to Buyer in
accordance with the terms and provisions set forth below.
ARTICLE 1.
----------
The Transaction
---------------
1.1 In accordance with this Agreement, Buyer agrees to purchase
from Seller and Seller agrees to sell to Buyer the Land together with
all easements and rights appurtenant to such Land and any and all
entitlements applicable to such Land (collectively, "Property") for the
price and upon the terms and conditions hereinafter set forth.
ARTICLE 2.
----------
Purchase Price; Assumption of Liabilities
-----------------------------------------
2.1 Amount and Payment. The purchase price for the Property
shall be Three Million Dollars ($3,000,000). At the Closing on the
Closing Date (defined in Section 3.1), Buyer shall pay the total
purchase price for the Property to Seller in cash or immediately
available funds.
2.2 Assumption of Liabilities. Upon the terms and subject to
the conditions contained in this Agreement, Buyer shall assume, or take
the Property subject to, effective as of the time of day on the Closing
Date that Escrow Agent telephonically or in writing notifies Seller and
Buyer that Escrow has closed, Seller's obligations pertaining to the
development of the Property under the Property Documents (as defined in
Section 5.1), which include, without limitation, the obligation to
undertake and complete (i) the Lots under the conditions of the
Tentative Subdivision Map, (ii) the wetlands mitigation requirements
applicable to the Property and (iii) any necessary improvements required
by and in accordance with the Tentative Subdivision Map and any other
conditions of approval set forth or referred to in the Property
Documents. To the best knowledge of Seller, the Property Documents set
forth all of the obligations regarding the development of the Property
in accordance with the Tentative Subdivision Map. Seller shall retain
responsibility for a liability or obligation relating to the development
of the Property if, and only if, the liability or obligation is one of
which Seller has actual knowledge and which Seller fails to disclose to
Buyer in the Property Documents or otherwise.
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<PAGE>
2.3 School District Reimbursements. Seller entered into an
Agreement with the Roseville Joint Union High School District
("Roseville District") dated May 21, 1993 ("Roseville Agreement") and a
Construction Reimbursement Agreement with the Eureka Union High School
District ("Eureka District") dated June 14, 1994 ("Eureka Agreement").
The Roseville Agreement and the Eureka Agreement are referred to herein
as the "School District Agreements" and the Eureka District and the
Roseville District are referred to herein as the "School Districts."
2.3.1 Reimbursements to School Districts.
A. Under the School District Agreements,
the Seller is obligated to reimburse the School Districts for
costs incurred in connection with certain construction
activities and improvements made to or for the benefit of the
Land. It is estimated that the total amount to be reimbursed to
the School Districts under the School District Agreements is, as
of the Closing Date, One Million One Hundred Eighty-Five
Thousand Dollars ($1,185,000) (the "Maximum Reimbursement
Amount"), consisting of approximately Two Hundred Ninety-Two
Thousand Dollars ($292,000) owed to the Eureka District and
approximately Eight Hundred Ninety-Three Thousand Dollars
($893,000) owed to the Roseville District. Effective as of the
Closing Date, Buyer shall assume and become responsible for
paying any reimbursements owed to the School Districts under the
School District Agreements with respect to all matters occurring
under the School District Agreements prior to the Closing Date
("Pre-Closing Date Matters") to the extent the total amount of
such reimbursement payments required to be made does not exceed
the Maximum Reimbursement Amount. Buyer acknowledges that the
Maximum Reimbursement Amount includes interest accrued on the
amounts to be reimbursed to the School Districts up to and
including the Closing Date, and Buyer shall be responsible for
and shall pay interest accrued on such amounts up to and
including the Closing Date; provided, however, that Buyer's
obligation for payment of such interest shall not cause an
increase in the Maximum Reimbursement Amount. Seller shall be
responsible for the payment of interest on amounts to be
reimbursed to the School Districts for Pre-Closing Date Matters
accrued during the period from and after the Closing Date to the
date of the School District Letters (defined below). Buyer shall
be responsible for payment of interest on the amounts to be
reimbursed to each School District for Pre-Closing Date Matters
accrued from and after the date of the School District Letter
applicable to such School District.
B. Seller shall have the right and
responsibility to negotiate with each of the School Districts
regarding the total amount to be reimbursed to each such School
District under the School District Agreements with respect to
Pre-Closing Date Matters. Seller shall allow a representative of
Buyer to observe any and all such negotiations, but the Seller
shall have the sole right to conclude negotiations and reach
agreements with the School Districts on the total amount to be
reimbursed to each School District with respect to Pre-Closing
Date Matters. Seller shall use its reasonable good faith efforts
to conclude negotiations with the School Districts and reach
agreements regarding the amount to be reimbursed to each School
District with respect to Pre-Closing Date Matters as soon as
possible after the Closing Date. The amount to be reimbursed to
each School District with respect to Pre-Closing Date Matters
shall be set forth in a letter from the School District to
Seller ("School District Letter"), which Seller shall obtain and
deliver to Buyer upon reaching agreement with each School
District regarding the amounts to be reimbursed. Buyer will
cooperate with Seller in connection with Seller's negotiations
with the School Districts and will not take any action or
refrain from taking any action so as to hinder or delay Seller
in reaching agreements with the School Districts regarding the
reimbursement amounts. Seller shall have no right to amend the
School District Agreements without the approval of Buyer, which
approval shall not be unreasonably withheld.
C. The total amount of reimbursements to be
made to the School Districts as set forth in the School District
Letters is referred to herein as the "Total Reimbursement
Obligation." To the extent the Total Reimbursement Obligation is
less than the Maximum Reimbursement Amount, the difference
between the Total Reimbursement Obligation and the Maximum
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<PAGE>
Reimbursement Amount shall be paid by Buyer to Seller and
treated as additional purchase price for the Property. Buyer
shall deliver to Seller no later than ten (10) days after
Seller's delivery to Buyer of copies of the School District
Letters a cashier's or bank certified check equal to the amount
by which the Total Reimbursement Obligation is less than the
Maximum Reimbursement Amount.
D. To the extent the Total Reimbursement
Obligation exceeds the Maximum Reimbursement Amount Seller shall
pay to Buyer the amount by which the Total Reimbursement
Obligation exceeds the Maximum Reimbursement Amount. To provide
a source of funding for payment of the amount by which the Total
Reimbursement Obligation exceeds the Maximum Reimbursement
Amount, Seller shall instruct the Escrow Holder to retain in
escrow after the Closing Date the sum of $250,000 ("Holdback
Amount") from the proceeds of the sale of the Property which are
payable to Seller. Seller shall deliver to Escrow Holder copies
of the School District Letters. If the Total Reimbursement
Obligation, as evidenced by the School District Letters, is less
than the Maximum Reimbursement Amount, Escrow Holder shall, upon
receipt of the School District Letters, disburse the Holdback
Amount to Seller. If the Total Reimbursement Obligation, as
evidenced by the School District Letters, exceeds the Maximum
Reimbursement Amount, Escrow Holder shall, upon receipt of the
School District Letters, disburse to Buyer from the Holdback
Amount the amount by which the Total Reimbursement Obligation
exceeds the Maximum Reimbursement Amount and disburse to Seller
the remaining portion of the Holdback Amount. Escrow Holder
shall not be required to obtain the consent of the Buyer in
order to make such disbursements of the Holdback Amount.
E. To the extent the Total Reimbursement
Obligation exceeds the Maximum Reimbursement Amount plus the
Holdback Amount (such excess being referred to as the "Excess
Amount"), Seller shall pay to Buyer such Excess Amount and treat
such payment as a reduction in the purchase price. Seller shall
deliver to Buyer no later than ten (10) days after Seller's
delivery to Buyer of copies of the School District Letters a
cashier's or bank certified check equal to the Excess Amount.
F. Buyer shall protect, defend, indemnify
and hold Seller harmless from any and all actions, causes of
action, suits, claims, costs, losses, penalties, damages,
liabilities and expenses of any kind, whatsoever, including
reasonable attorneys' fees ("Claims") based on or arising out of
Buyer's failure or refusal to pay any reimbursements owed to the
School Districts with respect to Pre-Closing Date Matters and
any interest accrued on amounts to be reimbursed to each School
District for Pre-Closing Date Matters from and after the date of
the School District Letter applicable to such School District.
Seller shall protect, defend, indemnify and hold Buyer harmless
from and against any and all Claims based on or arising out of
Seller's failure to pay any interest accrued on amounts to be
reimbursed to the School District for Pre-Closing Date Matters
that accrues during the period from and after the Closing Date
to the date of each School District Letter.
2.3.2 Reimbursements from School Districts. As a
result of work to be done after the Closing pursuant to the
School District Agreements, Buyer will be entitled to
reimbursement of certain costs from the School Districts. Buyer
is hereby assigned, effective as of the Closing, all right,
title and interest in and to any reimbursements from the School
Districts which relate to work done by Buyer after the Closing.
ARTICLE 3
---------
Completion of Sale
------------------
3.1 Place and Date. The purchase and sale of the
Property shall be completed in accordance with Article 9 (the
"Closing"). The Closing shall occur through an escrow with
Placer Title Company ("Title Company") at 2150 Douglas Blvd.,
Suite 260, Roseville, California 95661, Attn: Sue Weaver
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<PAGE>
("Escrow Holder"), on or before July 29, 1998 ("Closing Date").
Before the Closing Date, Seller and Buyer each shall sign and
deliver to Escrow Holder Escrow Holder's standard written escrow
instructions.
ARTICLE 4
---------
Title to the Property
---------------------
4.1 Review of Preliminary Report. As of the Effective
Date, Seller has caused the Title Company to provide to Buyer a
copy of a Preliminary Report dated June 26, 1998 ("Preliminary
Report") issued by the Title Company, together with legible
copies of all recorded documents described in the Preliminary
Report. If any title exceptions are recorded against the
Property before the Close of Escrow in addition to those
specified in the Preliminary Report, Escrow Holder shall cause
the Title Company to issue a supplemental preliminary report
("Supplemental Report"). Buyer shall have three (3) days after
receipt of the Preliminary Report with respect to any title
exceptions shown in the Preliminary Report, and two (2) days
after receipt of any Supplemental Report, to review the title
exceptions shown therein and to deliver to Seller notice of
disapproval of any title exceptions disclosed in any such
report. Buyer shall be deemed to have approved the exceptions to
title shown on the Preliminary Report and any Supplemental
Report unless Buyer delivers to Seller written notice of
disapproval of any such exceptions within the time periods set
forth in this Section 4.1 for delivering any such notice. Any
title exceptions that are not specifically disapproved by Buyer
are referred to herein as "Approved Exceptions." If any title
exceptions are specifically disapproved, Seller shall notify
Buyer in writing within two (2) days of Buyer's notice of the
disapproved title exceptions whether Seller elects to cure such
title exceptions. If Seller notifies Buyer within such two (2)
day period that Seller elects to cure such title exceptions,
Seller shall have three (3) days from the date of such Seller's
notice to cure such disapproved exception. If, however, Seller
notifies Buyer, within the three (3) day period after the date
of Buyer's notice of disapproval, that Seller elects not to cure
a disapproved exception, then Buyer shall have two (2) days
after the receipt of Seller's notice of election not to cure the
disapproved exception to waive its prior disapproval. If Buyer
does not deliver written notice of its election to waive its
prior disapproval, then the disapproved and uncured exception
will be deemed disapproved. Any time periods relating to
Seller's cure of a title exception or Buyer's decision to waive
a prior disapproval of a title exception shall be added to and
extend the Closing Date by a like number of days, but in no
event more than five (5) days. If a title exception is
disapproved in accordance with this Section 4.1 and Seller does
not cure such exception within the time period described in this
Section 4.1, Buyer may terminate the Escrow by delivering a
written notice of termination to Seller and the Escrow Agent.
Upon such termination, this Agreement shall be terminated.
Seller shall thereupon be released from its obligation to sell
the Property to Buyer, and Buyer shall be released from any
obligation to purchase the Property.
4.2 Title Delivered at Closing. At the Closing, Seller
shall convey fee title to the Property to Buyer by a duly
executed and acknowledged Grant Deed (the "Grant Deed") in the
form of Exhibit B attached hereto, free and clear of all liens,
encumbrances, leases, easements, restrictions, rights, covenants
and conditions of any kind or nature whatsoever, except only the
following: (i) the effect of zoning and other ordinances
applicable to the Property, (ii) non-delinquent general, special
and supplemental taxes and assessments; (iii)) any matters set
forth in the printed form portion of the ALTA Owner's Extended
Title Policy; (iv) the Approved Exceptions; and (iv) those
matters affecting title or possession caused by the action or
inaction of Buyer or its agents, contractors or invitees
(collectively, "Permitted Exceptions").
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<PAGE>
ARTICLE 5
---------
Review of the Property
----------------------
5.1 Delivery of Documents. As of the Effective Date,
Seller, at Seller's expense, has delivered to Buyer copies of
the following documents ("Property Documents") to the extent any
of them are in Seller's possession or control:
(a) The real property tax and assessment bills for the
current tax year and the immediately preceding three (3) tax
years for the Property; and
(b) All surveys, reports, studies, investigations, legal
notices, contracts, agreements, licenses, permits and other
items affecting the Property, including without limitation
copies of the recorded documents delivered with the Preliminary
Report and which constitute Approved Exceptions and all such
items concerning any past or present release or threatened
release of any Hazardous Substances (as defined in Section 6.1)
in, on, under or within the Property or the compliance of the
Property with Environmental Laws (as defined in Section 6.1).
5.2 Access for Review. Prior to the Closing Date,
Seller shall provide Buyer and Buyer's representatives access to
the Property at all reasonable times to make (at Buyer's sole
cost) such studies, inspections, tests (including subsurface
tests, borings, samplings and measurements) and verifications as
Buyer, in Buyer's discretion, considers reasonably necessary or
desirable in the circumstances. Buyer, its employees,
contractors, representatives, agents, contractors and invitees
shall (i) perform all work permitted under this Section 5.2 in a
diligent, expeditious and safe manner, (iii) in connection with
such inspection not allow any Hazardous Substances on the
Property or allow any dangerous or hazardous condition to
continue beyond the completion of the work permitted under this
Section 5.2, (iii) comply with all applicable laws and
governmental regulations, (iv) keep the Property free and clear
of all mechanics' and materialmen's liens or other liens arising
out of the entry or work performed under this Section 5.2 by
Buyer, its employees, invitees, representatives, agents and
contractors, and (v) dispose of all soil borings and groundwater
samples obtained by Buyer or its representatives at their own
cost in accordance with all applicable laws, provided, that if
such soil borings and groundwater samples are found to contain
Hazardous Substances, that Seller shall have the responsibility
for disposing of such soil borings and groundwater samples that
contain Hazardous Substances. After entry, Buyer shall
immediately restore the Property to substantially the same
condition as before Buyer entered the Property. Buyer shall
indemnify, defend (with counsel acceptable to Seller in its good
faith judgment) and hold harmless Seller, its officers,
directors, shareholders, members, employees, lenders, attorneys,
partners, representatives, agents, trustees, beneficiaries,
heirs, successors and assigns (collectively, the "Indemnified
Parties") from and against all claims, liabilities, damages,
losses, costs or expenses (including, without limitation,
attorneys' fees) arising from or relating to the entry onto the
Property by Buyer, its employees, invitees, agents,
representatives or contractors. Buyer shall not be responsible,
however, for indemnifying Seller with respect to any conditions
existing on the Property as of the date of Buyer's entry onto
the Property which Buyer discovers through its investigations.
Buyer's obligations under this Section 5.2 shall survive the
Closing and shall not be limited by any insurance required under
this Agreement. Buyer shall maintain worker's compensation and
comprehensive liability insurance to cover activities on the
Property by Buyer, its agents, representatives and contractors.
At least one (1) day before entering on the Property, Buyer
shall deliver to Seller a certificate of insurance evidencing
insurance coverage in compliance with the terms of this Section.
Buyer shall maintain and keep in effect, at Buyer's sole
expense, at all times, a comprehensive liability insurance
policy (or adequate self-insurance reasonably approved by
Seller) having a combined liability limit of at least Two
Million Dollars ($2,000,000). The insurance coverage shall be
primary and noncontributing with any insurance which may be
carried by Seller, and shall name Seller as an additional
insured. The insurance coverage shall also provide that it may
not be canceled or modified without at least thirty (30) days
prior written notice to Seller.
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<PAGE>
5.3 Entitlements. Buyer may pursue such entitlements or
approvals for the Property (including without limitation one or
more lot line adjustments, a parcel map, and/or specific plan
amendment) as Buyer may elect in its sole discretion. Seller
agrees to cooperate with Buyer and to execute all documents
reasonably approved by Seller and required in connection with
any such entitlements and approvals. In no event, however, shall
Buyer's obtaining any entitlements or other approvals be a
condition to Buyer's obligations under this Agreement or any
other agreement between Buyer and Seller.
ARTICLE 6
---------
Representations and Warranties
------------------------------
6.1 Seller. Whenever the words "Seller's knowledge,"
"Seller's best knowledge," or words of similar import are used
in this Agreement, they shall mean the knowledge of the
employees and officers of Seller who have participated directly
in the management and development of the Property. Seller hereby
makes the following representations and warranties to Buyer with
the understanding that each such representation and warranty is
material and is being relied upon by Buyer:
(a) Seller is a general partnership, duly
organized and validly existing under the laws of the State of
California. Seller has full power and authority to enter into
this Agreement and to perform this Agreement. The execution,
delivery and performance of this Agreement by Seller have been
duly and validly authorized by all necessary action on the part
of Seller and all required consents and approvals have been duly
obtained.
(b) Neither Seller nor any employee, officer or
independent contractor (including any manager of the Property)
of Seller has released any Hazardous Substance in violation of
applicable law in, under or on the Property. To Seller's
knowledge, and without investigation or inquiry, except to the
extent shown in records, reports and/or documents delivered to
Buyer by Seller under Section 5.1: (i) no release of Hazardous
Substances in violation of applicable law has occurred in, under
or on the Property, (ii) Seller has not given or received notice
of any release of Hazardous Substances in, under or on the
Property, and (iii) Seller is unaware of any threatened or
actual governmental or third party claims concerning the
existence of Hazardous Substances in, under or on the Property.
Buyer shall not disclose to any governmental or quasi-governmental agency, or
to any other party other than to Buyer's
environmental consultants (from whom Buyer will obtain non-disclosure
covenants similar to this one) the existence or
suspected existence of Hazardous Substances on the Property
without Seller's prior written approval, which may be withheld
in Seller's sole discretion. As used in this Agreement, the
following definitions shall apply "Environmental Laws" shall
mean all federal, state and local laws, ordinances, rules and
regulations relating to or regulating human health or safety, or
industrial hygiene or environmental conditions, or protection of
the environment, or pollution or contamination of the air, soil,
surface water or groundwater. "Hazardous Substances" shall mean
any substance or material that is described as a toxic or
hazardous substance, waste or material or a pollutant or
contaminant, or words of similar import, in any of the
Environmental Laws.
(c) Seller is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended,
and the Income Tax Regulations thereunder.
(d) No California withholding of tax or reporting
pursuant to California Revenue and Taxation Code Sections
18805,18815 and 26131 will be required with respect to the sale
of the Property by Seller.
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<PAGE>
6.2 Buyer. Buyer represents and warrants to Seller as
of the date of this Agreement as follows:
(a) Buyer is a general partnership duly
incorporated and organized and validly existing under the laws
of the State of California. Buyer has full corporate power and
authority to enter into this Agreement and to perform this
Agreement. The execution, delivery and performance of this
Agreement by Buyer have been duly and validly authorized by all
necessary action on the part of Buyer and all required consents
and approvals have been duly obtained.
(b) Except for the express representations,
warranties and covenants of Seller set forth in this Agreement,
neither Seller nor any other person (other than Buyer's
consultants) has made any representations or warranties to Buyer
with respect to the Property or any part or aspect thereof, and
Buyer agrees that it will have the opportunity to conduct such
investigations and inspections of the Property as Buyer may deem
necessary for Buyer's decision to acquire and use the Property.
(c) Buyer agrees that (i) except as expressly set
forth to the contrary in this Article 6, this Agreement and sale
are made without warranties, representations or guarantees by
Seller or any representative of Seller; (ii) the Property is
purchased by Buyer on an "AS-IS," "WITH-ALL-FAULTS" basis and
subject to any Hazardous Substances and environmental and/or
other condition which may exist, including all defects seen and
unseen and all conditions natural and artificial; (iii) all
records, reports, and other documents have been delivered by
Seller to Buyer only as an accommodation to Buyer and without
any warranty or representation by Seller except to the extent
expressly set forth above; and (iv) Buyer's decision to purchase
the Property is based only on the investigation, study and
analysis of all aspects of the Property as made by Buyer and/or
Buyer's agents, employees, representatives and contractors
(collectively, "Buyer's Investigation"). Buyer acknowledges that
the purchase price has been finally agreed to without regard to
any gross or net acreage which the Property may contain. By
proceeding with the Closing, Buyer acknowledges that it has had
full access to the Property and all aspects thereof which Buyer
determines are material or important to Buyer and that it has,
by Buyer's Investigation and otherwise, fully evaluated the
Property, Buyer's plans therefor, and the fairness to Buyer of
the purchase price and all other terms of this Agreement. Except
as otherwise specifically provided in this Agreement, all
statements and representations made by Seller and Seller's
agents and contractors (a) are intended by Buyer and Seller to
be made only as an accommodation to Buyer and Buyer's
Investigation and not in lieu of Buyer's Investigation, and (b)
are not to be relied on or acted on by Buyer.
6.3 Survival of Representations and Warranties. The
representations of Buyer and Seller under this Agreement shall
survive the Closing for a period of three years after the
Closing Date. After the expiration of such three-year period, no
action may be brought by either party with respect to any breach
of any representation or warranty made in this Agreement.
ARTICLE 7
---------
Specific Covenants
------------------
7.1 Seller. Seller covenants with Buyer as follows:
(a) Between the date of this Agreement and the
Closing Date, Seller shall cause the Property to be managed,
operated and maintained in the ordinary course of business.
(b) Between the date of this Agreement and the
Closing Date, Seller shall not in any manner without Buyer's
prior written consent sell, convey, assign, option, lease,
transfer, encumber or otherwise dispose of the Property or any
part thereof or interest therein or commence or pursue any land
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<PAGE>
use entitlements or approvals for the Property (other than
permits and approvals required in the normal course of Seller's
present uses of the Property).
(c) Between the date of this Agreement and the
Closing Date, Seller shall not, through any act or omission of
Seller, cause a material adverse change to occur in the
environmental condition of the Property.
7.2 Buyer. Buyer covenants that upon termination of
this Agreement without Buyer having acquired the entire
Property, Buyer shall as partial consideration for this
Agreement immediately deliver to Seller at no cost to Seller
copies of all studies, reports and other work product of Buyer
and its consultants pertaining to the Property other than that
which is proprietary to Buyer and is customarily safeguarded by
Buyer as confidential.
7.3 Environmental Agreement. Seller and Buyer agree
that the Property has been historically used, among other
things, for agricultural purposes. Notwithstanding any provision
of this Agreement or of law to the contrary, Seller and Buyer
agree to allocate responsibility and liability for all potential
environmental matters arising out of such use or in any other
way arising out of or associated or connected with the Property
as set forth in the following subsections:
(a) Buyer acknowledges the prior agricultural and
other uses of the Property and takes the Property "As Is," with
all faults and conditions thereon and thereunder. Except as
expressly set forth in Section 6.1, Seller makes no
representations or warranties, expressed or implied, with
respect to the environmental condition of the Property or the
surrounding property (including without limitation all
facilities, improvements, structures and equipment thereon and
soil and groundwater thereunder), or compliance with any
Environmental Laws. Except to the extent of a breach of a
representation under Section 6.1, Seller makes no
indemnifications, expressed or implied, for any costs, claims or
liabilities arising out of or related to the presence,
discharge, treatment, recycling, storage, use, transportation,
generation, disposal, migration or release on, in, under, from
or about the Property (including without limitation all
facilities, improvements, structures and equipment thereon and
soil and groundwater thereunder) of any Hazardous Substances.
(b) Buyer agrees that any demolition, response,
clean-up or remedial measures taken by or on behalf of Buyer
with regard to the Property, or the soil or the groundwater
thereunder, including any measures addressing environmental
conditions of the Property, or the soil or the groundwater
thereunder, shall comply with all applicable federal, state and
local laws and regulations and be done in an environmentally
sound manner.
(c) Except for any breach by Seller of its
representations and warranties under Section 6.1, beginning on
the Closing Date, Buyer shall indemnify, protect, defend (with
legal counsel acceptable to Seller in its good faith discretion)
and hold harmless the Indemnified Parties (as defined in Section
5.2) against and in respect of any and all liabilities, claims,
damages, costs and expenses (including, without limitation,
attorneys' fees, fines, penalties, consequential damages, and
response or remedial costs) arising out of, related to or
incurred in connection with: (a) the environmental condition of
the Property and the surrounding property (including, without
limitation, all facilities, improvements, structures and
equipment thereon and soil and groundwater thereunder),
resulting from the ownership of the Property or operations
thereon by or on behalf of Buyer, or its beneficiaries,
partners, heirs, affiliates, agents, successors, tenants,
transferees, or any other "Owner or Operator" (as defined in the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq., as amended
("CERCLA")) of the Property whether before or after the Closing
Date; (b) (i) the release of any Hazardous Substances into, onto
or from the Property whether before or after the Closing Date;
or (ii) any arrangement of Buyer, its affiliates, successors,
agents, tenants, transferees, or any other Owner or Operator of
the Property whether before or after the Closing Date for the
presence, discharge, treatment, recycling, storage, use,
-8-
<PAGE>
transportation, generation, migration or disposal at any
facility owned or operated by any person or entity of any
Hazardous Substances which are present on or under the Property,
or have been or may be deposited at, disposed on, or released
onto the Property; and (c) demolition, cleanup or other response
or remedial measures with regard to environmental conditions on
or around the Property resulting from the ownership, development
or use of the Property by Buyer, whether before or after the
Closing Date.
(d) Buyer hereby waives, releases and discharges
the Indemnified Parties from any and all environmental suits,
causes of action, legal or administrative proceedings,
liabilities, claims, damages, losses, costs and expenses of
whatever kind, known or unknown, including any action under any
Environmental Laws, which Buyer had, has or may have, based upon
the presence, discharge, treatment, recycling, use, migration,
storage, generation, release, disposal or transportation to or
from the Property of any Hazardous Substances or the
environmental condition of the Property (including, without
limitation, all facilities, improvements, structures and
equipment thereon and soil and groundwater thereunder). Buyer
hereby agrees, represents and warrants that the matters released
herein are not limited to matters which are known, disclosed or
foreseeable, and Buyer hereby waives any and all rights and
benefits which it now has, or in the future may have, conferred
upon Buyer by virtue of the provisions of Section 1542 of the
California Civil Code, which provides:
"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."
Buyer hereby agrees, represents and warrants that it is familiar
with, has read and understands California Civil Code Section
1542 and Buyer realizes and acknowledges that factual matters
now unknown to it may have given, or may hereinafter give, rise
to actions, legal or administrative proceedings, claims,
demands, debts, controversies, damages, costs, losses,
liabilities and expenses which are presently unknown,
unanticipated and unsuspected and Buyer further agrees,
represents and warrants that the provisions of this Section 7.3
have been negotiated and agreed upon in light of that
realization and that Buyer nevertheless hereby intends to
release, discharge and acquit the Indemnified Parties from any
such unknown causes of action, legal or administrative
proceedings, claims, demands, debts, controversies, damages,
costs, losses, liabilities any way related to this Agreement or
the Property.
(e) Notwithstanding anything to the contrary set
forth in Sections 7.3(c) and (d), above, Buyer shall not
indemnify or release Seller with respect to any liability or
condition arising as a result of Seller's own acts or omissions
or the acts or omissions of any property manager of Seller.
Buyer's obligations under this Section 7.3 shall survive the
Closing.
7.4 Confidentiality. At all times after the date of
this Agreement and both before and after the Closing, unless
consented to in writing by both Seller and Buyer, no press
release or other public disclosure concerning the purchase price
or other terms of this transaction shall be made by any person,
and each party agrees to use best efforts to prevent such
disclosure, other than (a) to employees, agents and consultants
of the parties who are involved in the ordinary course of
business with this transaction, all of whom shall be instructed
to comply with the confidentiality provisions hereof; or (b) in
response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or as
otherwise required to comply with laws. Buyer agrees that the
purchase price and all information furnished by Seller to Buyer
or obtained by Buyer in the course of Buyer's Investigation of
the Property or in any way arising from or relating to any and
all studies of or entries upon the Property by Buyer, its
agents, contractors, invitees or representatives, shall be
treated as confidential information and further, that if any
such confidential information is disclosed to third parties,
Seller may suffer damages and irreparable harm. Buyer shall
-9-
<PAGE>
furnish Seller with copies of all reports or studies made in
connection with Buyer's Investigation within a reasonable time
(not to exceed ten (10) days) of receipt of same by Buyer.
7.5 Broker's Commission. Buyer and Seller each
represent to the other that it has not authorized any broker or
finder to act on its behalf in connection with the sale and
purchase of the Property and that such party has not dealt with
any broker or finder purporting to act on behalf of any other
party. Each party hereto agrees to indemnify the other party
from and against any and all losses, liens, claims, judgments,
liabilities, costs, expenses or damages (including reasonable
attorneys' fees and court costs) of any kind or character
arising out of or resulting from any agreement, arrangement or
understanding alleged to have been made by such party or on its
behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby.
7.6 Real Property Tax Refunds. Any real property tax
refund applicable to the Property for any period of time prior
to the Closing Date will be and remain the property of Seller,
and, if Buyer receives any such refund, Buyer shall deliver the
same to Seller immediately upon receipt.
7.7 Survival of Covenants and Agreements . The covenants
and agreements set forth in Article 2, Article 5 and Article 7
shall survive the Closing.
ARTICLE 8
---------
Conditions Precedent
--------------------
8.1 Seller. The obligation of Seller to sell the
Property to Buyer is subject to satisfaction of all of the
conditions set forth in this Section 8.1. Seller may waive any
or all of such conditions in whole or in part, but any such
waiver shall be effective only if made in writing. After the
Closing, any such condition that has not been satisfied shall be
deemed waived by Seller. No such waiver shall constitute a
waiver by Seller of any of its rights or remedies if Buyer
defaults in the performance of any covenant of Buyer under this
Agreement or if Buyer breaches any representation or warranty of
Buyer in this Agreement.
(a) On the Closing Date, Buyer shall not be in
default in the performance of any covenant or agreement to be
performed by Buyer under this Agreement.
(b) On the Closing Date, all representations and
warranties made by Buyer in Section 6.2 shall be true and
correct as if made on and as of the Closing Date.
8.2 Buyer. The obligation of Buyer to purchase the
Property from Seller under this Agreement is subject to
satisfaction of all of the conditions set forth in this Section
8.2. Buyer may waive any or all of such conditions in whole or
in part, but any such waiver shall be effective only if made in
writing. After the Closing, any such condition that has not been
satisfied shall be deemed waived by Buyer. No such waiver shall
constitute a waiver by Buyer of any of its rights or remedies if
Seller defaults in the performance of any covenant of Seller
under this Agreement or if Seller breaches any representation or
warranty of Seller in this Agreement.
(a) On the Closing Date, Seller shall not be in
default in the performance of any covenant or agreement to be
performed by Seller under this Agreement.
(b) On the Closing Date, all covenants,
representations and warranties made by Seller in Section 6.1
shall be true and correct as if made on and as of the Closing
Date. In no event shall Seller be liable after the Closing for
its breach of any covenant, representation or warranty if Buyer
was given written notice of such breach before the Closing.
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<PAGE>
(c) On the Closing Date, Title Company shall be
unconditionally and irrevocably committed to issue to Buyer an
American Land Title Association Owner's Policy of title
insurance ("Title Policy") with liability equal to the purchase
price, containing such endorsements as Buyer may require
(provided that Title Company is willing to issue such
endorsements), insuring that fee title to the Property is vested
in Buyer subject only to the Permitted Exceptions. The issuance
of the Title Policy shall be in lieu of any express or implied
warranty of Seller concerning title to the Property. Buyer
agrees that its only remedy for any error or omission in the
Title Policy shall be solely against Title Company.
ARTICLE 9
---------
Closing
-------
9.1 Procedure. Seller and Buyer shall cause the
following to occur at the Closing on the Closing Date:
(a) The Grant Deed, duly executed and acknowledged
by Seller, shall be filed for recordation in the Official
Records of Placer County and an assignment in the form attached
hereto as Exhibit C ("Assignment") of all contracts,
entitlements, rights, privileges and other assets, tangible and
intangible, related to the Property shall be executed by Seller
and delivered to Buyer.
(b) Seller shall date as of the Closing Date,
execute and deliver to Buyer (i) a Certificate of Non-Foreign
Status in accordance with Section 1445 of the Internal Revenue
Code of 1986, as amended, and the Income Tax Regulations
thereunder in the form of attached Exhibit D, and (ii) a State
of California counterpart FTB Form 590-RE.
(c) Buyer shall pay to Seller the total purchase
price for the Property in accordance with Article 2.
(d) The Title Company shall issue to Buyer the
Title Policy.
9.2 Possession. Seller shall transfer possession of the
Property to Buyer on the Closing Date.
9.3 Closing Costs. The parties agree that closing costs
will be paid in accordance with the custom and practice of
Placer County, California. Specifically, Seller shall pay the
portion of the premium for the Title Policy that would be
charged for a California Land Title Association ("CLTA") owner's
policy of title insurance, documentary transfer taxes and one-half of the
escrow fee charged by the Escrow Holder. Buyer shall
pay all costs in connection with an ALTA extended coverage
owner's policy in excess of those that would be paid for a CLTA
policy of title insurance, together with all survey costs and
the costs of any endorsements to the Title Policy requested by
Buyer, and one-half of the escrow fee charged by Escrow Holder.
When the Grant Deed is submitted for recordation, Escrow Holder
shall ensure that the amount of the documentary transfer tax due
is shown on a separate page which shall be affixed to the Grant
Deed by the Recorder only after the Grant Deed is recorded.
9.4 Prorations. All current taxes, assessments,
utilities, and similar expenses of the Property shall be
prorated between Seller and Buyer as of the Closing Date and, to
the extent of information then available, such prorations shall
be made at the Closing. Seller and Buyer shall use their best
efforts prior to the Closing Date to prepare a schedule of
prorations covering as many items to be prorated as practicable
so such prorations can be made at the Closing.
-11-
<PAGE>
ARTICLE 10
----------
General
-------
10.1 Notices. All notices, consents, approvals,
disapprovals and other communications under this Agreement shall
be given in writing and either mailed by certified mail, return
receipt requested, postage prepaid, delivered by hand (including
messenger or recognized delivery, courier or air express
service), or sent by facsimile to the party at the address set
forth in this Section 10.1 or such other address as such party
may designate by notice to the other party. All such notices and
other communications, however transmitted, shall be deemed given
on the date of receipt by the intended party. Any notice or
other communication under this Agreement of a party by the
attorney for such party.
To Seller: Northfork Communities
529 East South Temple
Salt Lake City, UT 84102-1089
Attn: Paul J. Borden
With Copy To: K. Michael Garrett, Esq.
Pillsbury Madison & Sutro LLP
101 West Broadway, Suite 1800
San Diego, CA 92101
To Buyer: Southfork Partnership
c/o Coker-Ewing Company
3300 Douglas Blvd., Suite 250
Roseville, CA 95661-3807
Attn: Robert B. Coker, Jr.
With Copy To: Patricia Elliott, Esq.
McDonough, Holland & Allen
555 Capitol Mall, Suite 950
Sacramento, CA 95814
10.2 Assignment. This Agreement shall be binding upon
and shall inure to the benefit of Buyer and Seller and their
respective representatives, successors and assigns as may be
permitted below. Neither party shall have the right to assign
this Agreement or any interest or right under this Agreement or
under the Escrow or to appoint a nominee to act as Buyer under
this Agreement without obtaining the prior written consent of
the other party, which may be given or withheld by such party in
its subjective, good faith judgment. In no event, however, shall
any designation, assignment or nomination relieve either party
of any obligations under this Agreement.
10.3 Attorneys' Fees. In any action between the parties
arising out of this Agreement or the Escrow, or in connection
with the Property, the prevailing party in the action shall be
entitled, in addition to damages, injunctive relief or other
relief, to its reasonable costs and expenses, including, without
limitation, costs and reasonable attorneys' fees fixed by the
court.
10.4 Escrow Holder Authorized to Complete Documents . If
necessary, Escrow Holder is authorized to insert the date Escrow
closes as the date of documents conveying interests.
10.5 Recordation of Documents. When all of the
conditions in Article 8 have been satisfied or waived, Escrow
Holder shall cause the Grant Deed and any other recordable
instruments to be filed for recordation in the Office of the
Placer County Recorder. Escrow Holder shall pay documentary
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<PAGE>
transfer taxes based on a separate affidavit from Seller. Escrow
Holder shall supply all parties listed in Section 10.1 with
conformed copies of documents submitted for recording.
10.6 Delivery of Documents and Funds. Upon Close of
Escrow, Escrow Holder shall deliver to Seller and to Buyer all
documents and funds to which each is entitled and for whose
benefit those documents and funds were delivered to Escrow
Holder.
10.7 Performance by Escrow Holder. Escrow Holder is to
be concerned only with those paragraphs under this Agreement
where Escrow Holder is given instructions to perform certain
acts or with those paragraphs where escrow holders generally and
reasonably would be expected to act.
10.8 Risk of Loss. All risk of loss concerning the
Property shall be borne by Seller only until the Closing Date.
In the event of damage or destruction of more than fifty percent
(50%) of the total square feet of the Property, Seller shall
immediately give Buyer notice of the damage. Within five (5)
days after delivery of the notice, Buyer shall elect, by
delivering to Seller a written notice, either: (i) to terminate
this Agreement in which event Buyer and Seller shall share
equally all Escrow costs, or (ii) to proceed with the purchase
of the Property and consummate this Agreement in accordance with
its terms. Buyer's failure to deliver to Seller notice of its
election within the five (5):day period shall be deemed Buyer's
election to proceed with the purchase of the Property. If Buyer
elects option (ii), Seller shall, at the Closing, assign to
Buyer Seller's right, if any, to receive any insurance proceeds
payable in connection with such damage or destruction.
10.9 Condemnation. If more than fifty percent (50%) of
the Property, or any significant interest therein, is taken
before the Closing Date as a result of condemnation (including
the filing of any notice of intended condemnation or proceedings
in the nature of eminent domain, or negotiations, offers or
agreements prior to or in lieu of condemnation or eminent domain
proceedings), Seller shall immediately give Buyer notice of the
taking. Within five (5) days after Seller delivers the notice,
Buyer shall elect, by delivering to Seller a written notice,
either (i) to terminate this Agreement in which event Buyer and
Seller shall share equally in all Escrow costs, or (ii) to
proceed with the purchase of the Property and consummate this
Agreement in accordance with its terms. Buyer's failure to
deliver to Seller notice of its election within the five (5)-day
period shall be deemed Buyer's election to proceed with the
purchase of the Property. If Buyer elects option (ii), Seller
shall, at the Closing, assign to Buyer all Seller's right, if
any, to receive any portion of any condemnation award.
10.10 Interpretation. This Agreement is made under the
laws of the State of California in effect at the time of the
signing of this Agreement and shall be construed on the basis
that both parties participated equally in the drafting,
negotiating and finalizing of this Agreement. The parties
consent to the jurisdiction of the California courts with venue
in Placer County.
10.11 Titles, Captions and Paragraphs. Titles and
captions are for convenience only and shall not constitute a
portion of this Agreement. References to paragraph numbers are
to paragraphs as numbered in this Agreement unless expressly
stated otherwise.
10.12 Gender. As used in this Agreement, masculine,
feminine or neuter gender and the singular or plural number
shall each be deemed to include the others where and when the
context so dictates.
10.13 No Waiver. A waiver by either party of a breach of
any of the covenants, conditions or agreements under this
Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or
other covenants, agreements, restrictions or conditions of this
Agreement.
-13-
<PAGE>
10.14 Modifications. Any alteration, change or
modification of or to this Agreement, in order to become
effective, shall be made in writing and in each instance signed
on behalf of each party. In no event shall any amendment or
other modification to this Agreement be implied by or construed
from oral statements or from the conduct of any party.
10.15 Severability. If any term, provision, condition or
covenant of this Agreement or its application to any party or
circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the
application of the term, provision, condition or covenant to
persons or circumstances other than those as to whom or which it
is held invalid or unenforceable, shall not be affected, and
shall be valid and enforceable to the fullest extent permitted
by law.
10.16 Merger of Prior Agreements and Understandings. This
Agreement contains the entire understanding between the parties
relating to the subject matter hereof. All prior agreements,
understandings, representations and statements, oral or written,
regarding the subject matter hereof are merged into this
Agreement and shall be of no further effect.
10.17 Time of Essence. Time is expressly made of the
essence with respect to the performance by Buyer and Seller of
each and every obligation and condition of this Agreement in
general and of the Close of Escrow in particular.
10.18 Counterparts. This Agreement may be signed in
multiple counterparts which, when signed by all parties, shall
constitute a binding Agreement.
10.19 Exhibits Incorporated by Reference. All exhibits
attached to this Agreement are incorporated into this Agreement
by reference.
10.20 Computation of Time. The time in which any act is
to be done under this Agreement is computed by excluding the
first day (such as the day Escrow opens), and including the last
day, unless the last day is a holiday or Saturday or Sunday, in
which case the time shall be extended to the next business day.
10.21 Buyer's Materials Concerning Property. If for any
reason Buyer fails to purchase the Property, Buyer shall deliver
to Seller, when and as requested by Seller and for no additional
consideration from Seller, all test results, studies, plans,
reports and other materials prepared by, for, or in the
possession of Buyer, or its agents, employees or contractors,
relating to the Property. Seller shall have the right to retain
and use these materials for any purpose whatsoever as partial
consideration for entering into this Agreement.
10.22 Other Documents; Cooperation of Parties . Each party
agrees to sign any other and further instruments and documents
as may be reasonably necessary or proper in order to accomplish
the intent of this Agreement.
10.23 Preliminary Change of Ownership Report. Buyer shall
be fully responsible for all matters in connection with the
filing of a Preliminary Change of Ownership Report in accordance
with the California Revenue and Taxation Code Section 480.3.
10.24 Not an Offer. Seller's delivery of unsigned copies
of this Agreement is solely for the purpose of review by the
party to whom delivered, and neither the delivery nor any prior
communications between the parties, whether oral or written,
shall in any way be construed as an offer by Seller, nor in any
way imply that Seller is under any obligation to enter the
transaction which is the subject of this Agreement. The signing
of this Agreement by Buyer constitutes an offer which shall not
be deemed accepted by Seller unless and until Seller has signed
this Agreement and delivered a duplicate original to Buyer.
-14-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed as of
the date first hereinabove written.
BUYER:
SOUTHFORK PARTNERSHIP, a
California general partnership
By: COKER-EWING COMPANY, L.P.,
a California Limited Partnership,
General Partner
By: COKER DEVELOPMENT, INC., a
California corporation,
General Partner
By: /s/ Robert B. Coker, Jr.
_________________________
Robert B. Coker, Jr.,
President
By: EWING DEVELOPMENT, INC., a
California corporation,
General Partner
By: /s/ Harry W. Ewing
_________________________
Harry W. Ewing,
President
By: COKER-EWING COMPANY FOUR, a
California general partnership,
General Partner
By: CODI 4, a California
corporation, General Partner
By: /s/ Robert B. Coker, Jr.
________________________
Robert B. Coker, Jr.,
President
By: UD4, a California corporation,
General Partner
By: /s/ Harry W. Ewing
________________________
Harry W. Ewing,
President
-15-
<PAGE>
(Signature Page to Real Estate Purchase Agreement
and Escrow Instructions)
SELLER:
NORTHFORK COMMUNITIES, a
California general partnership
By: HOMEFED COMMUNITIES, INC., a
California corporation, General Partner
By: /s/ Paul J. Borden
_________________________________
Paul J. Borden,
President
By: HOMEFED RESOURCES CORPORATION, a
California corporation, General Partner
By: /s/ Paul J. Borden
_________________________________
Paul J. Borden,
President
-16-
<PAGE>
CONSENT OF ESCROW HOLDER
The undersigned, Escrow Holder, hereby agrees to (i)
accept the foregoing Agreement, (ii) be Escrow Holder under the
Agreement and (iii) be bound by the Agreement in the performance
of its duties as Escrow Holder; provided, however, the
undersigned shall have no obligations, liability or
responsibility under (x) this Consent or otherwise unless and
until the Agreement, as fully signed by the parties, has been
delivered to the undersigned or (y) any amendment to the
Agreement unless and until the same shall be accepted by the
undersigned in writing.
Dated: July 26, 1998
PLACER TITLE COMPANY
By: /s/ Sue Weaver
------------------------------
Its: Commercial Escrow Officer
------------------------------
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<PAGE>
PROPERTY
--------
EXHIBIT A
---------
<PAGE>
EXHIBIT "A"
The land referred to herein is situate in the unincorporated
area, County of Placer, State of California, described as
follows:
PARCEL ONE:
The East 590.00 feet of the North 1476.60 feet of the
Southwest quarter of Section 9, Township 10 North, Range 7
East, MDB&M.
APN: 466-010-002-000\
PARCEL TWO:
The Southeast quarter of Section 9, Township 10 North,
Range 7 East, MDB&M.
EXCEPT that portion conveyed to Elsie Mary Mariani by deed
dated May 22, 1967, recorded March 7, 1969, in Book 1235,
page 637, Official Records of Placer County.
ALSO EXCEPTING THEREFROM that portion conveyed to
Roseville Joint Union High School District by Deed dated
May 20, 1993, recorded May 26, 1993, as Instrument No. 93-037464.
APN: 466-010-017-000
PARCEL THREE:
All that portion of the following described property lying
Southerly of Eureka Road, in the State of California,
County of Placer, described as follows:
All that portion of the Northeast one-quarter of Section
9, Township 10 North, Range 7 East, Mount Diablo Meridian,
described as follows:
Beginning at a one-half inch iron bar tagged L.S. 2457 and
set in the West line of the Northeast one-quarter of said
Section 9, from which the North one-quarter corner of said
Section 9, as shown on that certain survey of record in
Book 1 of Surveys, page 41, Placer County Records; bears
North 01 48'42" West 1979.46 feet distance; thence, from
said point of beginning, along the West line of said
Northeast one-quarter of Section 9, South 01 48'42" East
693.31 feet to a one-half inch iron bar tagged L.S. 2457
and set at the Southwest corner of the Northeast one-quarter
of said Section 9; thence, along the South line of
said Northeast one-quarter, South 87 567'20" East 511.38
feet to a point located South 87 57'20" West 350.00 feet
from the Southeast corner of the West one-third of the
Northeast one-quarter of said Section 9 (said Southeast
corner being located two-thirds of the whole distance
across the South line of said Northeast one-quarter
measured Westerly from the Southeast corner thereof);
thence leaving said South line, North 01 46'25" West
664.40 feet; thence, North 84 44'42" West 514.58 feet to
the point of beginning.
<PAGE>
Said land being shown and designated as Parcel D on that certain
Record of Survey filed April 18, 1962 in Book 2, page 5, of
Surveys, in the office of the Placer County Recorder.
APN: 048-151-025-000
<PAGE>
Recorded at Request of and )
)
When Recorded Mail to: )
)
Southfork Partnership )
c/o Coker-Ewing Company )
3300 Douglas Blvd., Suite 250 )
Roseville, CA 95661-3807 )
Attention: Robert B. Coker, Jr. )
)
Mail Tax Statements to: )
)
Southfork Partnership )
c/o Coker-Ewing Company )
3300 Douglas Blvd., Suite 250 )
Roseville, CA 95661-3807 )
Attention: Robert B. Coker, Jr. )
______________________________________________________________________________
(Above space for recorder's use)
Assessor's Parcel No.
________
Parcel No. [Statement of Tax Due ____ Request That Stamp Not Be
Made Part Of The Permanent Record To Be Filed Separately From
The Grant Deed.]
GRANT DEED
For valuable consideration, receipt of which is
acknowledged, Northfork Communities, a California general
partnership, hereby grants to Southfork Partnership, a
California general partnership, the real property in the County
of Placer, State of California, described on Exhibit A attached
hereto and made a part hereof, subject to all matters of record
or otherwise known to Grantee as of the date this deed is filed
for recordation.
WITNESS WHEREOF, the undersigned has executed this
document as of the day and year indicated.
DATED: _____________________, 1998
NORTHFORK COMMUNITIES, a
California general partnership
By: HOMEFED COMMUNITIES, INC., a
California corporation, General Partner
By:
________________________________
Paul J. Borden,
President
By: HOMEFED RESOURCES CORPORATION, a
California corporation, General Partner
By:
________________________________
Paul J. Borden,
President
EXHIBIT B
---------
Page 1 of 4
<PAGE>
EXHIBIT A
---------
TO
GRANT DEED
----------
All of the real property in the County of Placer, State of
California, described in the attached legal description:
EXHIBIT B
---------
Page 2 of 4
<PAGE>
EXHIBIT "A"
The land referred to herein is situate in the unincorporated
area, County of Placer, State of California, described as
follows:
PARCEL ONE:
The East 590.00 feet of the North 1476.60 feet of the
Southwest quarter of Section 9, Township 10 North, Range 7
East, MDB&M.
APN: 466-010-002-000\
PARCEL TWO:
The Southeast quarter of Section 9, Township 10 North,
Range 7 East, MDB&M.
EXCEPT that portion conveyed to Elsie Mary Mariani by deed
dated May 22, 1967, recorded March 7, 1969, in Book 1235,
page 637, Official Records of Placer County.
ALSO EXCEPTING THEREFROM that portion conveyed to
Roseville Joint Union High School District by Deed dated
May 20, 1993, recorded May 26, 1993, as Instrument No. 93-037464.
APN: 466-010-017-000
PARCEL THREE:
All that portion of the following described property lying
Southerly of Eureka Road, in the State of California,
County of Placer, described as follows:
All that portion of the Northeast one-quarter of Section
9, Township 10 North, Range 7 East, Mount Diablo Meridian,
described as follows:
Beginning at a one-half inch iron bar tagged L.S. 2457 and
set in the West line of the Northeast one-quarter of said
Section 9, from which the North one-quarter corner of said
Section 9, as shown on that certain survey of record in
Book 1 of Surveys, page 41, Placer County Records; bears
North 01 48'42" West 1979.46 feet distance; thence, from
said point of beginning, along the West line of said
Northeast one-quarter of Section 9, South 01 48'42" East
693.31 feet to a one-half inch iron bar tagged L.S. 2457
and set at the Southwest corner of the Northeast one-quarter
of said Section 9; thence, along the South line of
said Northeast one-quarter, South 87 567'20" East 511.38
feet to a point located South 87 57'20" West 350.00 feet
from the Southeast corner of the West one-third of the
Northeast one-quarter of said Section 9 (said Southeast
corner being located two-thirds of the whole distance
across the South line of said Northeast one-quarter
measured Westerly from the Southeast corner thereof);
thence leaving said South line, North 01 46'25" West
664.40 feet; thence, North 84 44'42" West 514.58 feet to
the point of beginning.
<PAGE>
Said land being shown and designated as Parcel D on that certain
Record of Survey filed April 18, 1962 in Book 2, page 5, of
Surveys, in the office of the Placer County Recorder.
APN: 048-151-025-000
<PAGE>
STATE OF CALIFORNIA, )
) ss.
COUNTY OF ____________)
On ___________, _____, before me,_______________________________, a Notary
Public in and for the State of California, personally appeared
__________________________, personally known to me (or provided
to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument, and
acknowledged to me that he or she executed the within instrument
in his or her authorized capacity and that, by his or her
signature on the within instrument, the person or entity upon
behalf of which he or she acted executed the within instrument.
WITNESS my hand and official seal.
Signature
_________________________________
(Seal)
EXHIBIT B
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Page 3 of 4
<PAGE>
ASSIGNMENT
----------
THIS ASSIGNMENT ("Assignment") is made and entered into as
of ________________, 1998, by and between Northfork Communities,
a California general partnership ("Assignor"), and Southfork
Partnership, a California general partnership ("Assignee"),
effective as of the date hereof.
1. For value received, and pursuant to that certain
Real Estate Purchase Agreement and Escrow Instructions
("Purchase Agreement") entered into on _____________, 1998 by
and between Assignor and Assignee, Assignor hereby assigns and
transfers to Assignee all of Assignor's right, title and
interest, if any, in and to the following:
(a) all appraisal, engineering, soils,
environmental ground water, grading, architectural, remediation
and other reports, studies and plans relating to the real
property described in Exhibit A attached hereto (the "Land") or
contemplated development thereof in the possession of Assignor;
and
(b) all other tangible and intangible personal or
other property rights and appurtenances, including all rights
arising in connection with all contracts, agreements,
warranties, guarantees and indemnities relating to the Land or
other items of the personal property, including, without
limitation, all development rights, drawings, rights against
contractors or consultants, mineral rights, interests,
privileges and appurtenances and all business licenses, permits
and certificates pertaining to the Land, which Assignor has the
right and power to assign.
2. Assignee agrees to assume or take the Land subject
to and to be bound by the contracts and agreements affecting the
Land that Assignee has agreed to assume under the Purchase
Agreement. This Assignment shall be binding on and inure to the
benefit of the parties hereto, their heirs, executors,
administrators, successors in interest and assigns.
3. In the event of any controversy arising out of or in
connection with this Assignment, the prevailing party in any
such action or proceeding shall be entitled to receive from the
other party all costs and expenses, including actual attorneys'
fees, disbursements, and court costs reasonably incurred by the
prevailing party in connection with such action or proceeding.
4. This Assignment shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of
the State of California applicable to agreements made and to be
performed wholly within the State of California.
5. This Assignment may be executed in counterparts,
each of which shall constitute an original, but all of which
shall collectively constitute one Assignment.
EXHIBIT C
---------
<PAGE>
IN WITNESS WHEREOF, this Assignment has been executed
effective as of the date first above written.
ASSIGNOR:
NORTHFORK COMMUNITIES, a
California general partnership
By: HOMEFED COMMUNITIES, INC., a
California corporation,
General Partner
By: _________________________________
Paul J. Borden
President
By: HOMEFED RESOURCES CORPORATION, a
California corporation,
General Partner
By: _________________________________
Paul J. Borden
President
ASSIGNEE:
SOUTHFORK PARTNERSHIP, a
California general partnership,
Member
By: COKER-EWING COMPANY, L.P., a
California Limited Partnership,
General Partner
By: COKER DEVELOPMENT, INC., a
California corporation,
General Partner
By: ____________________________
Robert B. Coker, Jr.,
President
By: EWING DEVELOPMENT, INC., a
California corporation,
General Partner
By: ________________________
Harry W. Ewing,
President
EXHIBIT C
---------
<PAGE>
(Signature Page to Assignment)
By: COKER-EWING COMPANY FOUR, a
California general partnership,
General Partner
By: CODI 4, a California
corporation, General Partner
By: __________________
Robert B. Coker, Jr.,
President
By: UD4, a California corporation,
General Partner
By: __________________
Harry W. Ewing,
President
EXHIBIT C
---------
<PAGE>
EXHIBIT "A"
The land referred to herein is situate in the unincorporated
area, County of Placer, State of California, described as
follows:
PARCEL ONE:
The East 590.00 feet of the North 1476.60 feet of the
Southwest quarter of Section 9, Township 10 North, Range 7
East, MDB&M.
APN: 466-010-002-000\
PARCEL TWO:
The Southeast quarter of Section 9, Township 10 North,
Range 7 East, MDB&M.
EXCEPT that portion conveyed to Elsie Mary Mariani by deed
dated May 22, 1967, recorded March 7, 1969, in Book 1235,
page 637, Official Records of Placer County.
ALSO EXCEPTING THEREFROM that portion conveyed to
Roseville Joint Union High School District by Deed dated
May 20, 1993, recorded May 26, 1993, as Instrument No. 93-037464.
APN: 466-010-017-000
PARCEL THREE:
All that portion of the following described property lying
Southerly of Eureka Road, in the State of California,
County of Placer, described as follows:
All that portion of the Northeast one-quarter of Section
9, Township 10 North, Range 7 East, Mount Diablo Meridian,
described as follows:
Beginning at a one-half inch iron bar tagged L.S. 2457 and
set in the West line of the Northeast one-quarter of said
Section 9, from which the North one-quarter corner of said
Section 9, as shown on that certain survey of record in
Book 1 of Surveys, page 41, Placer County Records; bears
North 01 48'42" West 1979.46 feet distance; thence, from
said point of beginning, along the West line of said
Northeast one-quarter of Section 9, South 01 48'42" East
693.31 feet to a one-half inch iron bar tagged L.S. 2457
and set at the Southwest corner of the Northeast one-quarter
of said Section 9; thence, along the South line of
said Northeast one-quarter, South 87 567'20" East 511.38
feet to a point located South 87 57'20" West 350.00 feet
from the Southeast corner of the West one-third of the
Northeast one-quarter of said Section 9 (said Southeast
corner being located two-thirds of the whole distance
across the South line of said Northeast one-quarter
measured Westerly from the Southeast corner thereof);
thence leaving said South line, North 01 46'25" West
664.40 feet; thence, North 84 44'42" West 514.58 feet to
the point of beginning.
<PAGE>
Said land being shown and designated as Parcel D on that certain
Record of Survey filed April 18, 1962 in Book 2, page 5, of
Surveys, in the office of the Placer County Recorder.
APN: 048-151-025-000
<PAGE>
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of
a U.S. real property interest by Northfork Communities, a
California general partnership ("Seller"), the undersigned
hereby certifies the following on behalf of Seller.
1. Seller is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax
Regulations);
2. Seller's U.S. employer identification number is
___________; and
3. Seller's address is 529 East South Temple, Salt Lake
City, UT 84102-1089.
Seller understands that this certification may be
disclosed to the Internal Revenue Service by the transferee and
that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined
this certificate and to the best of my knowledge and belief it
is true, correct and complete, and I further declare that I have
authority to sign this document on behalf of Seller.
DATED: _____________________, 1998
SELLER:
NORTHFORK COMMUNITIES, a
California general partnership
By: HOMEFED COMMUNITIES, INC., a
California corporation, General Partner
By:
________________________________
Paul J. Borden,
President
By: HOMEFED RESOURCES CORPORATION, a
California corporation, General Partner
By:
________________________________
Paul J. Borden,
President
EXHIBIT D
---------
<PAGE>
CERTIFICATE OF STATUS
Section 18662 of the California Revenue and Taxation Code
provides that a transferee (buyer) of a California real property
interest must withhold tax if the transferor (seller) is a
foreign person, other than a partnership as determined by the
Internal Revenue Code ("Code"), or a corporation with no
permanent place of business in California.
To inform Southfork Partnership, a California general
partnership ("Transferee"), that withholding of tax under
Section 18662 of the California Revenue and Taxation Code is not
required upon disposition of certain real property to the
Transferee by Northfork Communities, a California general
partnership ("Transferor"), the undersigned hereby represents
and certifies by initialing the following on behalf of the
Transferor:
1. The Transferor is a(n):
____ Individual
_X__ Partnership (general or limited) as determined
under the Code
____ Limited Liability Company treated as a
"partnership" under the Code
____ Corporation
2. If the Transferor is an individual, the Transferor:
____ Is a resident of California with the following
street address:
_______________________________________
_______________________________________
____ Is conveying California real
property that is in the Transferor's
"principal residence," within the meaning of
Section 1034 of the Code, having the following
street address:
_______________________________________
_______________________________________
EXHIBIT E
---------
-i-
<PAGE>
____ Has obtained an exemption from
withholding from the Franchise Tax Board.
3. If the Transferor is a corporation or limited liability company:
3.1 At least one of the following is applicable
immediately after the transfer of title to the
California real property.
____ The corporation or limited liability company is
organized and existing under the laws of the State
of California.
____ The corporation or limited liability company has
qualified with the Office of Secretary of State of
California to transact business in California.
____ The corporation or limited liability company
maintains and staffs a permanent office in
California at the following street address:
_______________________________________
_______________________________________
3.2 The undersigned is a duly qualified and acting
officer of the Transferor.
4. The Transferor understands that this certification
may be disclosed to the California Franchise Tax Board by the
Transferee and that any false statement contained herein could
be punished by fine, imprisonment, or both.
EXHIBIT E
---------
-ii-
<PAGE>
Under penalty of perjury, the undersigned declares that
the undersigned has examined this certification and to the best
of its knowledge and belief it is true, correct, and complete.
DATED: _______________, 1998
TRANSFEROR:
NORTHFORK COMMUNITIES, a
California general partnership
By: HOMEFED COMMUNITIES, INC.,
a California corporation,
General Partner
By:
________________________________
Paul J. Borden,
President
By: HOMEFED RESOURCES CORPORATION, a
California corporation, General Partner
By:
________________________________
Paul J. Borden,
President
EXHIBIT E
---------
-iii-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from the
financial statements contained in the body of the accompanying Form 10-Q and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1998
<CASH> 2,982
<SECURITIES> 77
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 14,008
<CURRENT-LIABILITIES> 0
<BONDS> 26,085
0
0
<COMMON> 100
<OTHER-SE> (12,612)
<TOTAL-LIABILITY-AND-EQUITY> 14,008
<SALES> 891
<TOTAL-REVENUES> 1,025
<CGS> 894
<TOTAL-COSTS> 894
<OTHER-EXPENSES> 335
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,552
<INCOME-PRETAX> (1,756)
<INCOME-TAX> 17
<INCOME-CONTINUING> (1,773)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,773)
<EPS-PRIMARY> (.18)
<EPS-DILUTED> (.18)
</TABLE>
