Resolution No. 09862 (2)2
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RESOLUTION NO. 9862
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF AN
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS BY AND BETWEEN THE
CITY OF VERNON AND RENU RESOURCES, LLC RELATING TO
THE PURCHASE OF LAND IN KERN COUNTY FOR POTENTIAL
DEVELOPMENT OF RENEWABLE RESOURCES
WHEREAS, on August 12, 2008, the City Council of the City of
,Vernon adopted Resolution No. 9689 approving a Purchase and Sale
Agreement and Joint Escrow Instructions dated August 13, 2008 (the
"Agreement"), with ReNu Resources, LLC ("ReNu") for the purchase of
property in Kern County in the area known as the Tehachapi Wind
Resource Area (the "Wind Property") for the potential development of
renewable resources; and
WHEREAS, the Agreement also provided for an option to
purchase property in Kern County in Tehachapi (the "Solar Property")
for the potential development of renewable resources; and
WHEREAS, on September 8, 2008, the City Council of the City
of Vernon adopted Resolution No. 9709, which approved and ratified the
execution of a First Amendment to the Agreement dated August 28, 2008
and a Second Amendment to the Agreement dated September 4, 2008; and
WHEREAS, on October 6, 2008, the City Council of the City of
Vernon adopted Resolution No. 9734, which approved and ratified the
execution of a Third Amendment to the Agreement; and
WHEREAS, prior to the close of escrow, the City and ReNu
desired to consolidate the Agreement and all of the amendments into
one agreement; and
28 11 WHEREAS, in order to meet the urgent need to perform all
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actions necessary to close escrow, the Mayor Pro-Tem executed the
Amended and Restated Purchase and Sale Agreement and Joint Escrow
Instructions dated as of October 8, 2008 (the "Amended and Restated
Agreement"), subject to ratification by the City; and
WHEREAS, the City desires to approve and ratify the actions
of the Mayor Pro-Tem in executing the Amended and Restated Agreement
to complete the purchase of the Wind Property and optional purchase of
the Solar Property under the terms and conditions of the Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Amended and Restated Agreement with Renu and ratifies the
execution of the Amended and Restated Agreement by the Mayor Pro-Tem,
a copy of which is attached hereto as Exhibit A and incorporated by
reference.
SECTION 3: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 23rd day of February, 2009.
-4—
Name: Leonis C. Malburg
Title: Mayor /.MayGr- P-r-
ATTEST:
MANUELA GIROk-, Cy-ity Clerk—
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STATE OF CALIFORNIA
) ss
COUNTY OF LOS ANGELES
I, MANUELA GIRON, City Clerk of the City'of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 9862, was
duly adopted by the City.Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, February 23, 2009, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon.
(SEAL)
MANUELA G I ON,tCity Clerk
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EXHIBIT A
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
CITY OF VERNON,
a California chartered city
as
"Buyer"
AND
ReNu RESOURCES, LLC,
a Delaware limited liability company
as
"Seller"
dated as of
October 8, 2008
LA\1906082.6
TABLE OF CONTENTS
IProperty to be Conveyed ...................................................................................................... 3
2. Seller Retained Rights .......................................................................................................... 9
3. Purchase Price .................................................................................................................... 17
3.1. Amount .................................................................................................................. 17
3.2. Payment of Purchase Price ..................................................................................... 17
3.3. Deposit/Escrow Instruction .. ................................................................................... 17
3.4. Independent Contract Consideration ...................................................................... 17
4. Adjustments; Costs . ...........................................................................................................
17
4. 1.
Adjustments ...........................................................................................................
17
4.2.
Recording Costs .....................................................................................................
19
4.3.
Escrow Fees
19
....... I ....................................................................................................
4.4.
Title Policy ...............................................................................................................
19
4.5.
Title Objections ................. I .....................................................................................
19
4.6.
Other Charges ........................................................................................................
19
5. Title and Possession ...........................................................................................................
19
5.1. Title and Survey ..................................................................................................... 19
5.2. Delivery of Titl ' e ..................................................................................................... 20
5.3., Condition of Title ............. I ...................................................................................... 20
5.4. Delivery of Possession ........................................................................................... 21
6. Investigations and Other Contingencies . ........................................................................... 21
6.1. Closing Under Rudnick Purchase Agreement ........................................................ 21
6.2. Contingency Period ................................................................................................ 21
6.3. Buyer's Investigations ........................................................................................... 21
6.4, Buyer's Election to Proceed ................................................................................... 23
6.5. As -is, Where -is, With All Faults ............................................................................ 23
7. Conditions of Closing . ....................................................................................................... 24
7. 1. For Buyer ................................................................................................................ 24
7.2. For Seiler ................................................................................................................ 26
8. Closing . .................................................
.............................................................................. 26
8.1. Closing Date ............................................................................................................ 26
8.2. Deliveries . ............................................................................... * ... ' ............... 26
8.2.1 By Seller .................. I ................................................................................... 26
8.2.2 By Buyer .................................................................................. e ................. 27
LA\1906082.6
9. Representations and Covenants . ............................................. ; .................... I ...................... 28
9.1. By Seller ................................................................................................................... 28
9.2. By Buyer ................................................................................................................ 31
9.3. Definitions, ........... I .................................................................................................. 32
9.4. Leasing Commissions ............................................................................................ 32
10. Seller's Covenants. 19.
10.1.
Conduct Pending Closing ................................................................. i ....................
32
10.2.
Cooperation .............................................................................................................
33
11.
Buyer's Covenants . ..................................................... j ......................................................
33
11. 1.
Exclusive Negotiation ............................................................................................
33
12.
Solar
Property .....................................................................................................................
33
12. 1.
Grant of Option . .....................................................................................................
33
12.2.
-, Option Consideration ............................ i ................................................................
40
12.3.
Exercise Price ..........................................................................................................
40
12.4.
Option Tenn ...........................................................................................................
40
12.5.
Title
40
. .....................................................................................................................
12.6.
Exercise of Option ..................................................................................................
40
12.7.
Entitlements
40
...........................................................................................................
12.8.
Reports, Etc ............... v .......................................................................................
41
; ....
13.
Risk of Loss
.........................................................................................................................
41
14. Default; Liquidated Damages . ........................................................................................... 41
15. Brokerage .............. .............................. I .............................................................................. 42
16. Assignment; Binding Effect ................................................................................ .............. 42
17. Entire Agreement; Modifications; Advice of Counsel ................................... 1. ................. 43
18. Pronouns; Joint and Several Liability.... ............................................................................ 44
19'. Invalidity ..................................................................................................... ....................... 44,
20. Applicable Law .................................................................................................................. 44
21. Notice., .................................................................................................................................. 44
22. Calculation of Time ............................................................................................................ 45
23. Expenses ............................................................................................................................. 45
LAU9060816
24. Waivers; Extensions ............................................................................................................ 45
25. Exhibits ...................................................................................... ........................................ 45
26. Counterparts; Captions ..............................................
......................................................... 46
27. Attorneys' Fees ....................... I ............................. o .................... I ......................................... 46
28. Survival ............................................................................................................................... 46
29. Approvals. . ... .............................................................. I .......................................... 46
30. Disputes ............................................................................................................................... 46
30.1. Dispute Resolution .............................................. I ..........................
30.2. Infon-nal Resolution .....................................
.................................... I ............. 46
30.3. Arbitration ......... ...... 46
30.4. Waiver of Jury Trial ............................................................................................... 47
31. Intentionally Omitted ..................................... I ..................................................... 4 .............. 47
32. Memorandum of Purchase and Sale Agreement/Memorandurn of Option/Release
of Interests
.................................... 47
IV
LA\1906082.6
LIST OF ATTACHMENTS
Annex A — Deferred Purchase Price
Exhibit A — Description of Wind Land
Exhibit A- I — Description of Southern Rudnick Property
Exhibit B — List of Mineral, Energy and Other Leases
Exhibit C — Form of Grant Deed
Exhibit D — Property Documents
Exhibit E — Form of Estoppel Certificate
Exhibit F —.Form of Assignment
Exhibit Form of Notice to Tenants
Exhibit H — Disclosed Conditions
Exhibit I — Description of Eligible Eastern Solar Land
Exhibit 1-1 — Description of Eligible Western Solar Land
Exhibit J — Form of Memorandum of Amended and Restated Purchase and Sale Agreement
Exhibit K -7 Description of WL Transmission Easement Agreement Property
Exhibit L — Intentionally Omitted
Exhibit M — Form of Memorandum of Option
Exhibit N — Form of WL General Transmission Easement Agreement
Exhibit 0 — Form of WL General Miscellaneous Easement Agreement _J
Exhibit P — Form of Seller Retained General Transmission Easement Agreement
Exhibit Q — Form of Seller Retained General Miscellaneous Easement Agreement
Exhibit R — Preliminary Title Report — Owner's Policy
Exhibit S — Preliminary Title Reports — Optionee's Policy
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LA\1906082.6
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT AND
. JOINT'ESCROW INSTRUCTIONS
THIS AMENDED AND RESTATED PURCHASE. AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS (this "Agreement") is made as of October 8, 2008
(the "Effective Date"), by and between the CITY OF VERNON, a California chartered city
("Vernon" or "BiLyer"), and ReNu RESOURCES, LLC, a Delaware limited liability company
("CIM" or "Seller"). Buyer and Sellerare referred to herein sometimes individually as a "Zqrty"
and collectively as the "Parties".
RECITALS
I (a) Rudnick Estates Trust, Oscar Rudnick, Trustee (the "Trust") owns a fee interest in
substantial acreage in Kern County, California.
(b) The Trust and CIM Group Acquisitions, LLC, a , California limited liability
company ("CIM Gro Acquisitions"), entered into that certain Purchase and Sale Agreement
and Joint Escrow Instructions executed as of February 4, 2008 (the "Original Rudnick Purchase
Agreement"), pursuant to which CIM Group Acquisitions or its nominee ("CIM Title Holder ")
agreed to purchase a fee simple interest in approximately 68,000 acres of land as more
particularly described therein (the "Rudnick Propert ").
(c) The Original Rudnick Purchase Agreement was later amended pursuant to (i). that
certain First Amendment of Purchase and Sale Agreement and Joint Escrow Instructions
executed as of July 30, 2008 (the "First Amendment"), (ii) that certain Second Amendment of
Purchase and Sale Agreement and Joint Escrow Instructions . executed as of September 2, 2008,
(iii) that certain Third Amendment of Purchase and Sale Agreement and Joint Escrow
Instructions executed as of September 4, 2008, (iv) that certain Fourth Amendment of Purchase
and Sale Agreement and Joint Escrow Instructions executed as of September 10, 2008, (v) that
certain Fifth Amendment of Purchase and Sale Agreement and Joint Escrow Instructions
executed as of September 19, 2008, (vi) that certain Sixth Amendment of Purchase and Sale
Agreement and Joint Escrow Instructions executed as of September 26, 2008, (vii) that certain
Seventh Amendment of Purchase and Sale Agreement and Joint Escrow Instructions executed as
of September 26, 2008, and (viii) that certain Eighth Amendment of Purchase and Sale
Agreement and Joint Escrow Instructions executed as of October 2, 2008 (collectively, the
"Rudnick Amendments'). The Original Rudnick Purchase Agreement as amended by the
Rudnick Amendments is referred to herein as the "Rudnick Purchase Agreement".
(d) Among other things, pursuant to the First Amendme nt, CIM Group Acquisitions
assigned its right, title and interest in.the Rudnick Purchase Agreement to CIM/Onyx Ranch
Manager, LLC, a California limited liability company ("CIM OnYL("), and CIM Onyx accepted
such assignment and agre'ed.,to assume all of CIM Group Acquisitions' obligations under the
Rudnick Purchase Agreement.
(e) Pursuant to an assignment and assumption( ' agreement dated August 11, 2008,
CIM Onyx assigned its right, title and interest in the Rudnick Purchase Agreement to Seller and
LA\1906082.6
Seller accepted such assignment and agreed to assume all of CIM Onyx's obligations under the
Rudnick Purchase Agreement.
(f) The closing under the Rudnick Purchase Agreement is scheduled to occur on or
around October 10, 2008.
(g) Vernon owns and, through its Light and Power Department, operates a municipal
electric utility serving all customers within the City of Vernon (the "Electric Systeml�). Vernon
currently has a variety of resources (primarily modem clean and effi—cient gas -fired generation,
along with some hydro and nuclear), but currently does not have any "renewable" resources.
Vemon expects that State law will require the power supply resources of the Electric System to
include a certain amount of renewable energy sources. Moreover, Vernon desires to develop
significant renewable resources and to become a leader among munici al utilities i'
for and use of renewable resources. ip n its support
(h) Significant portions of the Rudnick Property lie within the area, known as the
Tehachapi Wind Resource Area (the "TWRA"). Various utilities and . developers have
collectively spent or committed to spend multiple billions of dollars for the development of wind
energy facilities in, and transmission facilities serving, the TWRA. This Agreement pertains in
part to the purchase and sale from CIM of a fee interest in a portion.of the Rudnick Property
lying within the TWRA (the 'Wind Land" or "WL" as more particularly described below).
Vernon has determined that the Wind Land has the potential for the developme . of wind energy
nt
proj ects.
(i) Significant other portions of the Rudnick Property may be attractive for the
development of solar energ . y projects. This Agreement pertains in part to an' option to acquire
from CIM certain other portions of the Rudnick Property (the ',Lolar Land" or "SU as more
particularly described below). Vernon has determined that the Solar Land has t'e—
h potential for
the development of solar energy projects.
0) Vernon has determined that the addition of renewable resources to the Electric
System's power supply resources will benefit the customers of the Electric System and will assist
Vernon in maintaining the Electric System in compliance with anticipated future renewable
energy power resource requirements.
(k) Vernon desires to (i) conduct or cause to be conducted an environmental review
(under the California Environmental Quality Act and otherwise) to determine what, if any, wind
and solar energy projects may be developed on the Wind Land and Solar Land, respectively, (ii)
conduct an economic feasibility assessment of such projects and (iii) depending upon the results
of such environmental review and economic feasibility assessment, develop an appropriate
development structure for such projects.
(1) Vernon has determined that it is necessary and in the public interest to acquire the
Wind Land and acquire an option for the purchase of the Solar Land, so that Vernon can proceed
with the review and development of renewable energy p jqcts on such land. Accordingly, -on
r0i
August 13, 2008, Vernon executed that certain Purchase and Sale Agreement and Joint Escrow
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LA\1906082.6
Instructions with CIM (the "Original Vernon Purchase AgKeement") to acq . uire�the Wind Land
and acquire an option for the purchase of the Solar Land. The Original Vernon Purchase
Agreement was later amended pursuant to (i) that certain First Amendment to Purchase and Sale
Agreement and Joint Escrow Instructions executed as of August 28, 2008, and (ii) that certain
Second Amendment to Purchase and Sale Agreement and Joint Escrow Instructions executed a's
of September 4, 2008 (collectively, the "Vernon Amendments"). The Original Vernon Purchase
Agreement as amended by the Vernon Amendments is referred to herein as the "Vernon
Purchase Agreeme
(in) This Agreement amends and restates the Vernon Purchase Agreement in its -
entirety. Following the closing of the transactions contemplated by this Agreement and subject
t o any required environmental review, Vernon intends to appropriate for public use the acquired
and/or optioned properties.
NOW, THEREFOREj the parties agree as follows:
I . . Property to be Conveyed. Seller agrees to sell and, convey to Buyer, and Buyer
agrees to purchase from Seller, on the terms and conditions set forth below, the following:
(a) Wind Land. A fee simple interest in all that certain parcel of land situated
in Kern County, California consisting of approximately 29,722.44 acres more particularly
described in. Exhibit A attached hereto and made a part hereof (the "Wind Land" or
"WL"), subject to the Seller Retained Easements (as defined below).
(b) WL I=rovements. The buildings, structures, fixture' and other
s
improvements, if any, affixed to or located on the Wind Land (the "WL Improvements").
(c) WL Appurtenances. The following (collectively, the "WL
Appurtenances"):
(i) except for the Excluded, Mineral Rights (as defined below), all oil,
gas and other hydrocarbon substances or other mineral rights on and under the
Wind Land;
(ii) except for the Excluded Subsurface Water (as defined below), all
water, water stock and water rights on and under the Wind Land; and
(iii) all rights, easements and rights -of -way appurtenant to, or used in
connection with, the beneficial use and enjoyment of the Wind Land.
(d) WL. Transmission. Easements. Easements appurtenant to and benefiting
the Wind Property located in, over, across and through a portion of the Rudnick Property
described on Exhibit A- I attached hereto and made a part hereof (the "Southern Rudnick
Propert ') (i) to permit Buyer to access and use electric power transmission lines of the
Los Angeles Department Of Water and Power ("LADWP"), Southern California Edison
("SCE") and any other applicable transmission owner (collectively, "Transmission
Owners") and (ii) to permit any other Permissible Uses (as defined below), in each case
LA\1906082.6
in a manner that is consistent with the Access Requirements (as defined below) all as set
forth in this clause (d) (collectively, the ."WL Transmission Easements").
(i) On the Closing Date, Seller shall record in favor of Buyer a
transmission easement agreement substantially in the fon-n of Exhibit N attached
hereto (the "WL General Transmission Easement Agreement") encumbering the
portion of the Southern Rudnick Property described on Exhibit K attached hereto
providing for rights substantially as set forth in this clause (d). The purpose of the
WL General Transmission Easement Agreement is solely to put of re . cord the
possibility of a recording of the WL Specific Transmission Easement (as defined
below) and the possible relocation thereof as provided in clauses (ii) and (iii)
below, respectively. Buyer shall not have any right to use the easement created
pursuant to the WL General Transmission Easement Agreement for transmission
or other uses of or on the affected property and may only use the affected property
as provided for in the WL Specific Transmission Easement Agreement. If the
WL Specific Transmission Easement Agreement (as defined below) has not been
executed and recorded on or before the first anniversary of the Closing Date for
reasons other than Seller's default, the WL General Transmission Easement
Agreement shall expire and be of no further force or effect, and Buyer . shall
execute, acknowledge where appropriate and deliver any reasonable documents
submitted by Seller to release the WL General Transmission . Easement
Agreement.
(ii) After the Effective Date (and after the Closing Date if not
determined prior to the Closing Date), Buyer and Seller shall cooperate to
determine a preferred, specific route for the WL Transmission Easements (the
"WL Specific Transmission Easement Route"). Promptly following receipt of the
same, Seller agrees to provide Buyer with a copy of its forthcoming report from
PDS Consulting regarding transmission issues (the "Transmission Report"). if
approved by Buyer, which approval shall not be unreasonably withheld, the WL
Specific Transmission Easement Route shall be the' route shown in the
Transmission Report from the Wind Land to LADWP at, both the Pine Tree
Substation and the Barren Ridge Substation and to SCE at SCE's forthcoming
Tehachapi Sub 1 Substation. If reasonably disapproved by Buyer, Buyer and
Seller shall agree upon. a reasonable �altemate route for the WL Specifi c
Transmission Easement Route. Buyer and Seller shall negotiate, execute and
record an easement agreement for the WL Specific Transmission Easement Route
(the "WL Snecific Transmission Easement Agreemenf'), which agreement shall
contain provisions, and permit uses substantially identical to those in the standard
form LADWP or SCE easements (as applicable) for transmission lines, including
rights of ingress and egress to construct, use or maintain any roads to serve the
transmission line and related facilities (such uses are collectively referred to
herein as "Perniissible tses"), provided that. (A) the width of the corridor
specified by the WL Specific Transmission Easement Agreement shall not exceed
the industry standard for the type of transmission line at issue; (B) the WL
Specific Transmission Easement Agreement shall not restrict Seller's right to
cross the easement created pursuant to the WL Specific Transmission Easement
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Agreement (the "WL Specific Transmission Easement") or to install, roads,
utilities, transmission lines
or other improvements parallel to or crossing the WL
Specific Transmission Easement, unless the foregoing would materially interfere
with Buyer's intended use of the WL Specific Transmission Easement; (C) the
WL Specific Transmission Easement Agreement shall allow Seller and its agents
to use any access, maintenance or patrol roads installed on or serving the WL
Specific Transmission Easement unless such use wouldmaterially interfere with
Buyer's intended use of the WL Specific Transmission Easement; (D) the WL
Specific Transmission Easement shall generally be non-exclusive, but shall be
exclusive in areas that by industry practice are exclusive (such as, but not limited
to, areas for substations, switchyards and an industry-st.andard area. under each
transmission tower) (except that, subject to clause (C), Seller shall be entitled in
any event to use. any roads or accessways installed by Buyer); a I nd (E) regardless
of the terms of the standard forin LADWP and SCE easements for transmission
lines, in no event shall the holder of the WL Specific T . ransmission Easement use
the same for cellular or other telecommunications purposes except to serve . solely
the benefited property of the WL Specific Transmission Easement or to serve
transmission functions.
(iii) From and after the recording of the WL Speci
fic Transmission
Easement Agreement until the Wind Permitting Date (as defined below), Buyer
shall have (x) a one-time right to designate an alternate route for the WL Specific
Transmission Easement Route for interconnection with LADVVIP, (y) a one-time
right to designate an alternate route for the WL Specific Transmi . ssion Easement
Route for interconnection with SCE and, (z) a one-time right to designate an
alternate route for the WL Specific Transmission Easement Route for
interconnection with one other Transmission Owner, if any, in each case to the
extent reasonably deemed appropriate by Buyer to facilitate project approvals or
to satisfy one or more Transmission Owners (including, i f requested by Buyer,
connecting to substations other than the Pine Tree Substation, the Barren Ridge
Substation and the Tehachapi Sub I Substation). In such event, Seller shall, at the
request of Buyer, amend the WL Specific Transmission Easement Agreement for
re-recording to an alternate route designated by Buyer and subject to, Seller's
approval, which approval shall not be unreasonably withheld. Buyer shall
reimburse Seller for any reasonable, out-of-pocket, third party costs incurred by
Seller in connection with documenting and analyzing any requested amendment
to the WL Specific Transmission Easement Agreement in accordance with this
clause (iii). From time to time, Buyer may also request minor amendments to the
WL Specific Transmission Easement Route to accommodate specific
environmental orterrain concerns (such as avoidance of habitats for endangered
species or avoidance of terrain that will make use of the easement prohibitively
expensive). Seller hereby agrees (x) not to,.unreasonabl y withhold its consent to
any such minor amendment and to promptly execute the same following its
receipt thereof and (y) that any such minor amendment shall not constitute an
exercise of Buyer's right to designate an alternate route for the WL Specific
Transmission Easement Route pursuant to the first sentence of this clause (iii).
"Wind Permitting Date"means the date as of which Buyer has obtained final and
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nonappealable environmental clearances and project entitlements for the wind
project proposed by Buyer in its initial application for entitlements, including
transmission lines to serve the same (the "Wind Project"), provided that Buyer
shall prepare and submit such initial application and shall pursue the issuance of
such clearances and entitlements with reasonable diligence.
(iv) At any time following the first aimiversary of the Closing Date,
Seller may request Buyer to amend the WL Specific Transmission Easement
Agreement to exclude any portions of the property encumbered by the WL
General Transmission Easement Agreenient on which Seller will be constructing
improvements or as to which Seller otherwise has a need.to, clarify that the WL
Specific Transmission Easement could not lie upon the requested portion of the
Southern Rudnick Property. If the requested amendment would not unreasonably
burden Buyer's potential routes for and intended uses of the WL Specific
Transmission Easement, Buyer shall consent to such, request and execute an
appropriate amendment in recordable forin. Seller shall reimburse B I uyer for any
reasonable, out-of-pocket, third party costs incurred by Buyer in connection with
documenting and analyzing any requested amendment to the WL Specific
Transmission. Easement Agreement in accordance with this clause (iv).
(v) (a) Upon the earlier to occur of the commencement of
construction of a transmission line to LADWP over the WL Specific
Transmission Easement or the recording of an alternate route for the WL Specific
Transmission Easement Route for interconnection with LADWP as provided in
clause (iii) above, Buyer shall, upon request of Seller, release and reconvey the
WL General Transmission Easement Agreement with respect to all portions� of the
Southern Rudnick Property described on Exhibit K attached hereto'that had only
been included thereon for purposes of providing an alternate route for connection
to LADWP.
b) Upon the earlier to occur of the commencement of
construction of a transmission line to SCE over the WL Specific Transmission
Easement or the recording of an alternate route for the WL Specific Transmission
Easement.Route for interconnection with SCE as provided in clause (iii) above,
Buyer shall, upon request of Seller, release and reconvey the WL General
Transmission Easement Agreement with respect to all portions of the Southern
Rudnick Property described on Exhibit k attached hereto that had only been
included thereon for purposes of providing an alternate route for connection to
SCE.
If Buyer has not exercised its one-time right to designate an alternate route for the
WL Specific Transmission Easement Route for interconnection with one other
Transmission. Owner as provided in clause (z) of the first sentence -of clause (iii)
above by the date that the releases described in clauses (a) and (b) of this clause
(v) have occurred, then Buyer's one-time right to designate an alternate route for
the WL Specific Transmission Easement Route for interconnection with one other
Transmission Owner as provided in clause (z) of thefirst sentence of clause (iii)
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above shall terminate and Buyer shall, upon request of Seller, release and
reconvey the WL General Transmission Easement Agreement in its entirety. In
any event Buyer on request of Seller.shall release and reconvey the WL General
Transmission Easement Agreement in its entirety on the Wind Permitting Date.
. (vi) Except as provided in the last sentence of clause (iii) above, the
use of the WL Transmission Easements shall be at no additional cost paid by
Buyer to Seller; provided that nothing in this clause (vi) shall limit Buyer's
obligation to satisfy any indemnity obligation as part of the Access Requirements.
(0) WL Miscellaneous Easements. Easements appurtenant to and benefiting
the Wind Property located in, over, across and through the Southern Rudnick Property, to
permit Buyer (i) to access utilities and (ii) to access (or, with the consent of Seller not to
be unreasonably withheld, construct) roads of any type, (dirt, gravel' or paved), in each
case in a manner that is consistent with the Access Requirements all as set forth in this
clause (e) (collectively, the "WL Miscellaneous Easements"), but only to the extent that
any such access cannot reasonably be provided (including taking into account materially
increased costs to Buyer resulting from using the Wind Property to access the relevant
utilities orconstructing roads on the Wind I Property over the costs that would be incurred
from using the Southern Rudnick Property) on the Wind Property or within or adjacent to
the'WL Specific Transmission Easement Route.
(i) On the Closing Date, Seller shall record in favor of Buyer an
easement agreement substantially in the form of Exhibit 0 attached hereto (the
"WL General Miscellaneous Easement Apreement") encumbering the Southern
Rudnick Property providing for rights substantially as set forth in. this clause (e).
The purpose of the WL General Miscellaneous Easement Agreement is solely to
put of record the possibility of a recording of the WL Specific Miscellaneous
Easement (as defined below) and the possible relocation thereof as provided in
clauses (ii) and (iii) below, respectively. Buyer shall not have any right to use the
easement cr eated pursuant to the WL General Miscellaneous Easement
Agreement for any uses of or on the affected property and may only use the
affected property as provided for in the WL Specific Miscellaneous Easement
Agreement. If the WL Specific Miscellaneous Easement Agreement (as defined
below) has not been executed and recorded on or before the Wind Permitting Date
for reasons other than Seller's default, the WL General Miscellaneous Easement
Agreement shall expire and be of no further force or effect, and Buyer shall
execute, acknowledge where appropriate and deliver any reasonable documents
submitted by Seller to release the WL General Miscelianeous Agreement.
(ii) From time to time after the Closing Date, Buyer and Seller shall
cooperate to determine specific locations for the WL Miscellaneous Easements
(the "WL Specific Miscellaneous Easement Locations"). Buyer and Seller shall
negotiate, execute and record an easement agreement for the WL Specific
Miscellaneous Easement Locations (the 'WL Specific Miscellaneou's Easement
Agreement"), provided that (A) the WL Specific Miscellaneous Easement
Agreement shall not restrict Seller's right to cross the easement created pursuant
7
LA\1906082.6
to the WL Specific Miscellaneous Easement Agreement (the "WL Specific
Miscellaneous Easement)') or to install roads, utilities, transmission lines or other
improvements parallel to or crossing the WL Specific Miscellaneous Easement,
unless the foregoing would materially interfere with Buyer's intended use of the
WL Specific Miscellaneous Easement; (B) the WL Specific Miscellaneous
Easement Agreement shall allow Seller and its agents to use any access,
maintenance or patrol roads installed , on or serving the WL Specific
Miscellaneous Easement unless such use I would materially interfere with Buyer's
intended use of the WL Specific Miscellaneous Easement;:(C) the WL Specific
Miscellaneous Easement shall generally be non-exclusive, but shall be exclusive
in areas, if any, -that by industry practice are exclusive (except that, subject to
clause (B), Seller shall be entitled in any event to use any roads or accessways
installed by Buyer); and (D) in no event shall the holder of the WL Miscellaneous
Transmission Easement use the same for cellular or other telecommuni cations
purposes except to serve solely the benefited property of the WL Specific
Miscellaneous Easement.
(iii) At any time after the Closing Date, Seller may request Buyer to
amend the WL Specific Miscellaneous Easement. Agreement to exclude any
portions of the Southern Rudnick Property on which Seller will be constructing
improvements or as to which Seller otherwise has a,need to clarify that the WL
Specific Miscellaneous Easement could not lie upon the requested portion of the
Southern. Rudnick Property. Buyer . shall consent to any reasonable request and
execute an appropriate amendment in recordable form. Seller shall reimburse
Buyer for any reasonable, out-of-pocket, third party costs incurred by Buyer in
connection with documenting and analyzing any requested amendment to the WL
Specific Miscellaneous Easement Agreement in accordance with this clause (iii).
(iv) The use of the WL Miscellaneous Easements shall be at no
additional cost paid by Buyer to Seller; provided that nothing in this clause (iv)
shall limit Buyer's obligation to satisfy any indemnity obligation as part of the
Access Requirements.
(0 WL Licens . An irrevocable, non-exclusive license, expiring on the first
anniversary of the date of commencement of commercial operation of the Wind Project,
to access the Southern Rudnick Property for. the purpose of conducting studies,
investigations and tests thereon, and the physical components thereof, to the extent
reasonably related to Buyer's development of the Wind Land, in each case in a manner
that is consistent with the Access Requirements (collectively, the "WL License�v).
The Wind Land, the WL Improvements, the WL . Appurtenances, the WL Transmission
Easements, the WL Miscellaneous Easements and the WL License are hereinaAer sometimes
referred to collectively as the "Wind- Property", The Wind Property is subject to the mineral,
energy and other leases listed on'Exhibit B attached hereto (sometimes collectively referred to
herein as the- �'Leases", and the tenants under the.Leases are sometimes, collectively referred to
herein as the "Tenants"). The Wind Property and the Solar Property (as defined below) are
collectively referred to herein as the "Propert
8
LA\1906082.6
For purposes hereof, the "Access Requirements" shall consist of the following: (x) any
use of any easement, right-of-way or other access right granted hereunder by its holder shall be
subject to reasonable conditions as the owner of the real property subject to such easement, right-
of-way or other access right may impose from, time to time, including requirements of security,
safety, insurance, coordination and advance scheduling, and'indemnification; and (y) the use of
any easement, right-of-way or other access right granted hereunder by its holder shall not
interfere in any material respect with the use of the real property subject to such easement, right-
of-way or other access right by'the. owner thereof.
2. Seller Retained Rights. With respect to any Property sold by Seller to Buyer
hereunder (including, without li I mitation, the Wind Property and the Solar Property), Seller shall
retain and the conveyed Property shall exclude:
(a) Excluded Mineral Rights. All rights to minerals located 500 feet or more
below the surface of the conveyed land (the "Excluded Mineral Rights"); provided,
however, that Buyer shall acquire, and the Excluded Mineral Rights and the Excluded
Subsurface Water (as defined below) shall not include, the right to use whatever
geological features, if any, in or under the conveyed land that are useful for the storage of
compressed gasses and designated from time to time by Buyer (the "Geological Features
Right").
(b) Excluded Subsurface Water. All rights to any subsurface water located
506 feet or more below the surface of the conveyed land to the extent such water is in
excess of any subsurface water to be used by Buyer (or its successors and assigns) on or
adjacent to the conveyed land (the "Excluded Subsurface Water").
(c) Seller Retained Transmission Easements. Easements appurtenant to and
benefiting the, Southern Rudnick Property located in, over, across and through a portion
of the conveyed land (i) to permit Seller to access and use electric power transmission
lines of LADVvT,. SCE and any other applicable Transmission Owner and (ii) to permit
any other Permissible Uses, in each case in a manner Ahat is consistent with the Access
Requirements all as set forth in this clause (c) (collectively, the "Seller Retained
Transmission Easements").
(i) On the Closing Date, Buyer shall record in favor of Seller a
transmission eas ement agreement substantially. in the form of Exhibit P attached
hereto (the ".Seller Retained General Transmission Easement Agreement")
encumbering the Wind Land providing for rights substantially as set forth in this
cla use (c). The purpose of the Seller Retained General Transmission Easement
Agreement is solely to put of record the possibility of a recording . of the Seller
Retained Specific Transmission Easement (as defined below) and the possible
relocation thereof.as provided in clauses (ii) and (iii) below, respectively. Seller
shall not have any right to use the easement created pursuant to the Seller
Retained General Transmission Easement Agreement for transmission or other
uses of or on the affected property and may only use the affected property as
provided for in the Seller Retained Specific Transmission Easement Agreement.
If the Seller Retained Specific Transmission Easement Agreement (as defined
9
LA\[906082.6
below) has not been executed and recorded on or before the Solar - Permitting Date
for reasons other than Buyer's default,- the Seller Retained General Transmission
Easement Agreement shall expire and be of no further force or effect, and Seller
shall execute,. acknowledge where appropriate and deliver any reasonable
documents submitted. by Buyer to release the Seller Retained General
Transmission Easement Agreement. "Solar Permittiniz Date" means the date as of
which Seller has obtained final and nonap . pealable environmental clearances and
project entitlements for the solar project proposed by Seller in its initial
application for entitlements, including transmission lines to serve the same (the
"Solar Projec "), provided that Seller shall submit such initial application no later
than the second anniversary after the earlier of the Option Closing Date or the
expiration of the Option (as hereinafter defined) and shall pursue the issuance of
such clearances and entitlements with reasonable diligence,
00 After the Effective, Date (and after the Closing Date if not
determined prior to the Closing Date), Buyer and Seller shall cooperate to
determine a preferred, specific route for the Seller Retained Transmission
Easements (the "Seller Retained Specific Transmission Eas,-ment Route"), Buyer
and Seller shall negotiate, execute and record an easement agreement for the
Seller Retained Specific Transmission Easement Route (the "Seller Retained
Specific Transmission Easement. Agreement"), which agreement shall contain
provisions and permit uses substantially identicat to those in the standard form of
LADWP or SCE Easements� (as applicable) and permit Permissible Uses,
provided that (A) the width of the corridor specified by the Seller Retained
Specific Transmission Easement Agreement shall not exceed the industry
standard for the type of transmission line at issue; (B) the Seller Retained Specific
Transmission Easement Agreement shall not restrict Buyer's right to cross the
easement created pursuant to the Seller Retained Specific Transmission Easement
Agreement (the "Seller Retained Specific Transmission Easemenf) or to . install
roads, utilities, transmission lines or other -,improvements parallel to or crossing
the, Seller Retained Specific Transmission. Easement, unless the 'foregoing wou . Id
materially interfere with Seller's intended use of the Seller Retained Specific
Transmission Easement; (C) the Seller Retained Specific Transmission Easement
Agreement shall allow Buyer and its- agents to use any access, maintenance or
patrol roads installed on or serving the Seller Retained Specific Transmission
Easement unless such use would 'Materially interfere with Seller's intended use of
the Seller Retained Specific Transmission Easement; (D) the Seller Retained
Specific Transmission Easement shall generally be non-exclusive, but shall be
exclusive in areas that by industry practiceare exclusive (such as, but not limited
to� areas for substations, sl,,Mchyards and an industry -standard area under each
transmission tower) (except that, subject to. clause (C), Buyer shall be entitled in
any event to use any roads or accessways installed by Seller); and (E) regardless
of the terms of the standard form LADWP and SCE easements for . tran , smission
lines, in no event shall the holder of the Seller Retained Specific Tran' smission
Easement use the same for cellular or other telecommunications purposes except
to serve solely the benefited property of the Seller Retained Specific Transmission
Easement or to serve transmission flinctions.
to
LA\1906082.6
(iii) From and after the recording of the Seller Retained Specific
Transmission Easement Agreement until the third anniversary of the earlier to
occur o,f (a) the date that Buyer notifies Seller in writing that it will not exercise
the Option or (b) the date that the Option lapses in accordance with its terms,
Seller shall have (x) a one-time right to designate an alternate route for the Seller
Retained Specific Transmission Easement Route for interconnection with
LADWP, (y) a one-time right to designate an alternate route for the Seller
Retained Specific Transmission Easement Route for interconnection with SCE
and (z) a one-time right to designate an alternate route for the Seller Retained
Specific Transmission Easement Route for interconne'
ction with one other
Transmission Owner, if any, in each case to the extent reasonably deemed
appropriate by Seller to facilitate project approvals or to satisfy one or more
Transmission Owners (including, if requested by Seller, connecting to substations
other than the Pine Tree Substation, the Barren Ridge Substation and the
Tehachapi Sub I Substation). In such event, Buyer shall, at the request of Seller,
amend the Seller Retained Specific Transmission Easement Agreement for re-
recording to an alternate route designated by Seller and subject to Buyer's
approval, which approval shall not be Unreasonably withheld. Seller shall
reimburse Buyer for any reasonable, out-of-pocket, third party costs incurred by
Buyer in connection with documenting and analyzing any requested amendment
to the Seller Retained Specific Transmission Easement Agreement in accordance
with this clause (iii). From time to time, Seller may also request minor
amendments to. the Seller Retained Specific Transmission Easement Route to
accommodate specific environmental or terrain concerns (such as avoidance of
habitats for endangered species or avoidance of terrain that will make use of the
casement prohibitively expensive), including, without limitation, amendments to
amend the exact location of the Seller Retained Specific Transmission Easement
Route. Buyer hereby� agrees (x) not to unreasonably withhold its consent to any
such minor amendment and to promptly execute the same'follow I ing its receipt
thereof and (y) that any such minor amendment shall not constitute an exercise of
Seller's right to designate an alternate route for the Seller Retained Specific
Transmission Easement Route pursuant to the first sentence of this eta -use (iii).
(iv) At any time after the Closing Date, Buyer may request, Seller to
amend the Seller Retained Specific Transmission Easement Agreement to exclude
any portions of : the Wind Land on which Buyer will be constructing
improvements or as to which Buyer otherwise has a need to clarify that the Seller
Retained Specific Transmission Easement could not lie upon the requested
portion of the Wind Land. If the requested amendment would not unreasonably
burden Seller's potential routes for and intended uses,of the Seller Retained
Specific Transmission Easement, Seller shall consent to such request and execute
an appropriate amendment in recordable fort-n. Buyer shall reimburse Seller for
any reasonable, out-of-pocket, third party costs incurred by Seller in connection
with documenting and analyzing any requested amendment to the Seller Retained
Specific Transmission Easement Agreement in accordance with this clause (iv).
LA\1906082.6
(v) (a) Upon the earlier to occur of the commencement of
construction of a transmission li he to LADWP over the Seller Retained Specific
Transmission Easement or the recording of an alternate rout e for the Seller
Retained Specific Transmission Easement Route for interconnection with
LADVVP as provided in clause'(iii) above, Seller shall., upon r . equest of Buyer,
release and reconvey the. Seller Retained General Transmission Easement
Agreement with respect to that portion of the conveyed land that had only been
included thereon for purpo
ses of providing an alternate route for connection to
LADWP.
(b) Upon the earlier to occur of the commencement of
.construction of a transmission line to SCE over the Seller Retained Specific
Transmission Easement or the recording of an alternate route for the Seller
Retained Specific Transmission Easement Route for interconnection with SCE as
provided in clause (iii) above, Seller shall, upon request of Buyer, release and
reconvey the Seller Retained General Transmission Easement Agreement with
respect to that portion, of the conveyed land that had only been included thereon
for purposes of providing an alternate route for connection to SCE..
If Seller has not exercised its one-time right to desi ate '
gn an alternate route for the
Seller Retained Specific Transmission Easement Route for interconnection with
one other Transmission Owner as provided in clause (z),of the first sentence of
clause (iii) above bythe date that the releases described in clauses (a) and (b) of
this clause (v) have occurred, then Seller's one-time right to designate an alternate
route for the Seller Retained Specific Transmission Easement Route for
interconnection with one other Transmission Owner as provided in clause (z) of
the first sentence of clause (iii) above shall terminate and Seller shall, upon,
request of Buyer, release and reconvey the Seller Retained General Transmission
Easement Agreement in. its entirety.
(vi) Except as provided in the last sentence of clause (iii) above, the
use of the Seller Retain ' ed Transmission Easements shall be at no additional cost
paid ;by Seller to Buyer; provided that nothing in this clause - (vi) shall limit
Seller's obligation to satisfy any indemnity obligation as part of the Access
Requirements.
(vii) If and to the extent that Buyer acquires the Solar. Land in
accordance with Section 12 hereof, Buyer and Seller shall cooperate to determine
a preferred route for the Seller Retained Transmission Easements on, the Solar
Land and Buyer shall, at the request of Seller, further amend the Seller: Retained
Specific Transmission Easement toencumbe I r a portion of the Solar Land.. Seller
hereby acknowledges that the area available for Seller Retained Transmission
Easements on the Solar Land might be significantly more limited than Seller
Retained Transmission Easements on the Wind Land, given the nature of solar
projects and their typical design to significantly cover a given parcel.
12
LA\1906082.6
(viii) (A) Request for Joint Projec . Buyer agrees to give Seller periodic
updates from time to time as appropriate regarding Buyer's proposed design,
environmental review, permitting, equipment procurement and construction for
any generation. tie -lines or substations Buyer intends. to develop to serve the
Property ("Buyer Facilities") and Buyer's timelines for making decisions with
respect to development of the Buyer Facilities. 'Seller may request Buyer to
undertake the development of the Buyer Facilities instead as a joint project (the
"Joint Projec ") with Seller to design, construct, own and operate a generation tie -
line and related facilities including substations (the "Joint Facilities") to serve
Buyer and to connect projects Seller may propose to construct on Seller's retained
solar lands (including the Solar Property to the extent the Option is not exercised)
with one or more of LADWP, SCE and one other Transmission Owner. The Joint
Facilities do not include generation tie -lines or substations that only serve Buyer
or Seller.
(B) Reasonable A
j2proval. Buyer agrees to reasonably consider
Seller's request for a Joint Project. Buyer shall not be obligated to undertake a
Joint Project with Seller if Buyer has a reasonable basis for declining such
request; however, if Buyer's reasonable basis for declining such request can be
mitigated by making the approval subject to some condition or requirement, then
Buyer- shall do so rather than withholding consent alto ether. Moreover . , Buyer
9
shall be reasonable in determining what conditions or requirements to impose.
Buyer. does not presently know all the relevant circumstances that will prevail
when it is seeking to develop its projects. Without implying that the following are
the only reasonable conditions or that such conditions can fully . mitigate
reasonable objections in a giv I en setting, Buyer may condition its approval upon:
(1) Seller committing to pay its pro rata share of the costs of the Joint Facilities
including capital and operating expenses, subject to the provisions below with
respect to a Staged Project, (2) Seller providing appropriate financial assurances
and collateral for it's financial obligations respecting the Joint Facilities, (3) Buyer
obtaining the approval of an applicable Transmission Ownerto the extent such
Transmission Owifterowns (or will have a right to o wn) any Joint Facilities, (4)
Buyer reasonably concluding that the joint undertaking will not cost Buy . er more
than what Buyer would otherwise incur for facilities to serveits projects, and (5)
there being no anticipated adverse regulatory effect (including without limitation
under the Federal Power Act) on Buyer,in the reasonable judgment of Buyer or on
the Transmission Owner or any of Buyer's off-taikers in the good faith judgment
of the affected party (other than Buyer). To the extent evaluating some of the
foregoing factors may be dependent upon Buyer having reached an agreement
wi ' th one or more Transmission Owners or off -takers, Buyer may delay replying
to Seller's request while Seller seeks to reach such agreements.
(C) Staged Pro-jects. Seller has informed Buyer that it may not want
to commence use of the Joint Facilities as early as Buyer may choose to do so
and, accordingly, that Seller may want Buyer to construct the Joint Facilities in a
manner that would allow a later:upgrade to accommodate the use by Seller (a
"Staged Project".). SDecifically, a Staged Project may include a design for the
13
LA\1906082.6
initial construction to include specification for certain facilities (such as tower
sizes and number of pole attachments) to accommodate an'upgrade for use by
Seller(the "Seller Upgrade Cgpaciff') that would be over built in relation to both
what Buyer would use when the facilities commenced commercial operation and
what Buyer would design for future upgrades for itself Buyer agrees not to
unreasonably withhold its consent to undertaking a Staged Project with Seller. In
addition to the factors set forth above in clause (B), such consent may be
conditioned upon: (1) Seller committing to pay on a current basis the then current
cost of the Seller, Upgrade Capacity; 2) upon the implementatio n of the
improvements to make use of the Seller Upgrade Capacity, Seller committing to
pay (x) its. pro rata share of all previously incurred capital costs of the Joint
Facilities (i.e., not including the capital costs in clause (y) below) minus what I it
had.previously paid pursuant to clause (1) and (y) all capital costs to implement
the upgrade and (3) Seller committing to pay, from and after the date of any
commercial operation of any portion of the Joint Facilities for use by Seller,
Seller's full pro rata share of the operating expenses of the Joint Facilities.
(d) Seller Retained Miscellaneous Easements. Easements appurtenant to and
benefiting the Southern Rudnick Property located in, over, across and through a portion
of the Wind Land to pen -nit Seller (i) to exploit the I Excluded Mineral Rights and the
Excluded Subsurface Water and (ii) to access and construct roads of any type (dirt, gravel
or paved), in each case in a manner that is consistent with the Access Requirements all as
set forth in.this clause (d) (collectively, the "Seller Retained Miscellaneous Easements"
and, together with the Seller Retained Transmission Easements, collectively, the "Seller
Retained Easements"), but only,to the extent that any such access cannot reasonably be
provided (including taking into account the materially increased costs to Seller resulting
from using the Southern Rudnick Property to exploit the Excluded Mineral Rights'and
the Excluded Subsurface Water or construction of roads on the Southern Rudnick
Property over the costs that would be incurred from using the Wind Land) on the
Southern Rudnick Property or within or adjacent to the Seller Retained Specific
Transmission Easement Route.
(i) On the Closing Date, Buyer shall record in favor of Seller an
easement agreement substantially in the form of Exhibit Q attached hereto (the
"Seller Retained General Miscellaneous Easement Ag[eement") encumbering the
Wind Land providing for rights substantially as set forth in this clause (d). . The
purpose of the Seller Retained General Miscellaneous Easement Agreement is
solely to put of record the possibility of a recording of the Seller Retained
Specific Miscellaneous Easement (as defined below) and the possible relocation
thereof as provided in clauses (ii) and (iii) below, respectively. Seller shall not
have any right to use the easement created pursuant to the Seller Retained General
Miscellaneous Easement Agreement for any uses of or on the affected property
and may only use the affected property as provided for in the Seller Ret'ained
Specific Miscellaneous Easement Agreement. Seller shall take all commercially
reasonable steps to minimize the surface impact, . including without limitation
directional drilling. The rights of Seller under this clause (d)�shall be in lieu of
14
LA\1906082.6
and not in addition to any rights of access implied by law, which rights are
waived.
(ii) From time to.time after the Closing Date, Buyer and Seller shall
cooperate to determine specific locations for the Seller Retained Miscellaneous
Easements (the "Seller Retained Specific Miscellaneous Easement Locations)').
Prior to designating such Seller Retained Specific Miscellaneous Easement,
Locations, Buyer shall be afforded a period not to exceed one hundred twenty
(120) days to perform geological and other studies and investigations for. purposes
of assessing whether the Seller Retained Specific I Miscellaneous Easement
Locations would materially interfere with Buyer's right to exploit the Geological
Features Right. If and to the extent that Buyer reasonably determines that such
proposed action would materially interfere with its right to exploit the,Geological
'Features Right, Seller and Buyer shall cooperate to designate an alternate
preferred route for the Seller Retained Specific Miscellaneous Easement
Locations, recognizing that the Geological Features Right is superior to the
Excluded Mineral Rights and Excluded Subsurface Water. Buyer and Seller shall
,negotiate, execute and record an casement agreement for the Seller Retained
Specific Miscellaneous Easement Locations (the "Seller Retained Specific
Miscellaneous Easement Agreementl'), which agreement shall, among other
things, contain provisions and permit uses substantially identical to those in the
standard form LADWP and SCE easements for water lines and related facilities,
including rights of ingress and egress to construct, use or maintain any roads to
serve the water lines and related facilities, provided that (A) the width of the
corridor specified by'the Seller Retained Specific Miscellaneous Easement
Agreement shall not exceed the industry standard for the type of water line at
issue; (B) the Seller Retained Specific Miscellaneous Easement Agreement shall
not restrict Buyer's right to cross the easement created pursuant to the Seller
Retained Specific Miscellaneous Easement Agreement (the "Seller Retained
Specific Miscellaneous Easement") or to install roads, utilities, transmission lines
or other improvements parallel to or crossing the Seller Retained Specific
Miscellaneous Easement, unless the foregoing would materially interfere with
Seller's intended use of the Seller Retained Specific Miscellaneous Easement; (C)
the Seller Retained Specific Miscellaneous Easement Agreement . shall allow
Buyer and its agents to use any acc ess, maintenance or patrol roads installed on or
serving the Seller Retained Specific Miscellaneous Easement unless such use
would materially interfere with Seller's intended use of the Seller Retained
Specific Miscellaneous Easement; (D) the Seller Retained Specific Miscellaneous
Easement shall generally be non-exclusive, but shall be exclusive in areas that by
industry practice ate exclusive (except that, subject to clause (C), Buyer shall be
entitled in any event to use any roads or accessways installed by Seller); and (E)
regardless of the terms of the standard form LADWP and SCE easements for
water lines, in no event shall the holder of the Seller Retained Specific
Miscellaneous Easement use the same for cellular or other. telecommunications
purposes except to serve solely the benefited property of the Seller Retained
Specific Miscellaneous Easement.
15
LAN1906082.6
At any time following the second anniversary of the Closing Date,
Buyer may request Seller, to amend the Seller Retained Specific Miscellaneous
Easement Agreement to exclude any portions of the Wind Land on which Buyer
will. be constructingimprovements or as to which Buyer otherwise has a need to
clarify that the Seller Retained Specific Miscellaneous Easement could -not lie
upon the requested portion of the Wind Land. If the requested amendment would
not unreasonably burden Seller's potential routes for arid intended uses of the
Seller Retained Specific Miscellaneous Easement, Seller shall consent to such
request and execute an appropriate amendment in recordable form. Buyer shall
reimburse Seller for any reasonable, out-of-pocket, third party costs incurred by
Seller in connection with documenting and analyzing any requested. amendment
to the Seller Retained Specific Miscellaneous Easement Agreement in accordance
with this clause (iii).
(iv) The use of the Seller Retained Miscellaneous Easements shall be at
no additional cost paid by Seller to Buyer; provided that nothing in this clause (iv)
shall limit Seller's obligation to satisfy any indemnity obligation as part of the
Access Requirements.
(v) If and to the extent that Buyer acquires the Solar Land in
accordance with Section 12 hereof, Buyer and Seller shall cooperate to determine
locations for the Seller Ret ained Miscellaneous Easements on the Solar Land and
Bu
. yer shall, at the request of Seller, further amend the Seller Retained Specific
Miscellaneous Easement to encumber a portion of the Solar Land. Seller hereby
acknowledges that the area available for Seller Retained Miscellaneous
Easements on the Solar Land might be significantly more limited than Seller
Retained Miscellaneous Easements on the Wind Land, given the nature of solar
projects and their typical design to significantly cover a given parcel.
(f) . Seller- Retained License. An irrevocable, non-exclusive li I cense to access
the Wind Land for the purpose of conducting studies, investigations and tests thereon . ,
and the physical components thereof, to the extent reasonably related to evaluating (x)
Seller's development of the Southern Rudnick Property and (y) Seller's exploitation of
the Excluded Mineral Rights and Excluded Subsurface Water, in each case in a manner
that is consistent with the Access Requirements. Seller shall provide Buyer a copy of all
documentation relating to any study, investigation or test conducted by it or its
representatives on the Wind Land.
(g) Exchanges of Land. In the event that either Party (the "Exchangin
PgAy") exchanges a fee simple interest in parcels with the BLM (as defined below) or
other landowners in the immediate vicinity of the Property so as to consolidate or
otherwise, benefit such Exchanging Party's use of its land,, the Exchanging Party shall
have the right to require the other Party to execute and record instruments transferring the
benefit of any easement or license 'retained by the Exchanging Party hereunder (whether
relating to the Wind Property 'or the Solar Property) to the land newly acquired by the
Exchanging Party, Provided the Exchanging Party shall release the land conveyed to the
BLM or such other landowners in exchange with respect to such easements or licenses.
16
LA\ 1906082.6
Purchase Price.
3.1. Amount. The purchase price for the Wind Property is (i) Forty -Two
Million Dollars ($42,000,000.00) (the "Base Purchase Price") plus (ii) a deferred purchase price
in an amount to be determined in accordance with paragraph (a) of Annex A (the "Deferred
Wind Purchase Price"). The Deferred Wind Purchase Price and the Deferred Solar Purchase
Price are collectively referred to herein as the "Deferred Purchase Price".
3.2. PgMent of Purchase Price. The 1�,ase Purchase Price, as increased. or
decreased by prorations and adjustments as herein provided, shall be payable in full at the
Closing in cash by wire trdnsfer of immediately available funds through escrow to a bank
account designated by Seller in writing to Buyer prior to the Closing. The Deferred Wind
Purchase Price shall be payable in the amounts and at the times designated in paragraph (a) of
Annex A.
3.3. Doosit/Escrow Instructions. Buyer has deposited with Escrow Holder the
sum of Four Million Dollars ($4,000,000..00) (the "Deposit") in good funds either by certified
bank or cashier's check or by federal wire transfer. "Escrow Holder" shall be Commerce Escrow
having its office at 1545 Wilshire Boulevard, Suite 600, Los Angeles, California 90017. Buyer
has directed Escrow Holder to hold. the Deposit in an interest -bearing account reasonably
acceptable to Buyer. Buyer and Seller shall cooperate with each other and with Escrow Holder
to execute supplemental escrow instructions for an escrow (the "Escrow") for the sale of the
Wind Property, which escrow instructions shall provide that all interest accruing on the Depo . sit
shall be paid to Buyer upon demand to Escrow Holder or, at Buyer's election, paid to Seller and
credited to the Base Purchase Price upon the Closing. All interest 'accrued on the Deposit shall
be deemed income of Buyer; and Buyer shall be responsible for the payment of all costs and fees
imposed on the Deposit account.
3.4. Independent Contract ConsLd_eration. Seller acknowledges that Buyer has
paid to it an amount, equal to One Thousand Dollars ($1,000.00), which amount the Parties
hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's,
execution and delivery of this Agreement. Such consideration is in addition to and independent
of any other consideration or payment provided for in this Agreement, and is nonrefundable in
any event.
4. Adjustments; Costs.
1 4.1. Adjustments. The following items shall be adjusted as of 12:01 a.m. on
the Closing Date (defined below) (all of which ne ' t adjustments shall be to the amount payable by
Buyer at closing), in the manner set forth below and, if not expressly set forth below, in
accordance with the custom of the locality in which the Wind Property is located:
(a) Current real estate and personal property taxes assessed against the' Wind
Property, and any - water, sewer or other municipal (or quasi -municipal)
improvement tax, char e or other assessment affectin
. 9 g the Wind Property;
provided should any chargeor assessment be undetermined on the Closiniz Date.
the last determined charge or assessment shall be used for the purpose's -of this'
17
LA\1906082.6
apportionment; provided further that any unpaid special assessments (whether
assessed prior to, or after, the Closing date, but relating to the period prior to
Closing) ("Excluded Special Assessments") for transfers occurring or for
improvements completed, prior to the Closing Date shall be the responsibility of,
and paid by, Seller; and provided further that that any supplemental real estate
taxes and/or assessments against the Wind Property, which are levied within one
(1) year after the Closing but which are applicable to the.period of time prior to
the, Closin
. g (collectively, the "SEpplemental Taxes"), will remain the
responsibility of Seller on and a.fter the Closing, and Seller hereby agrees to
reimburse Buyer for the amount of the Supplemental Taxes within I thirty (30) days
after Seller's receipt of Buyer's written demand therefor accompanied by the
appropriate tax bill for the Supplemental. Taxes, such obligation of -Seller to
survive the Closing. For clarification purposes, Seller shal� not be responsible for
any reassessment of the Wind Property due to the conveyance of the Wind
Property to Buyer.
(b) To the extent not payable directly by the Tenants under the Leases, water,
electricity, gas and other utilities.
(c) Interest earned on the Deposit which shall be a credit in favor of Buyer.
(d) Transferable annual permit, license and/or inspection fees, if any.
(e) Monthly rents (guaranteed rents and charges for operating costs, real estate taxes,
and other amounts), if any, of the Tenants under the Leases. Seller shall assign to
Buyer Seller's right to cause the Trust to remain responsible for refund of any
amounts of tenant charges overpaid for prior years and for the portion of the
current year prior to the Closing bate, such obligation of Seller to survive the
Closing. Rents and tenant charges in arrears shall.not be adjusted but any such
rent in arrears recet ved within one (1) year after the Closing Date shall be paid to
Seller (after deduction for any reasonable costs and expenses of collection of the
same) but only after application of amounts received from the Tenant(s) are
applied to all rent and tenant charges then due to Buyer from such Tenant(s), and
then only to the extent the Tenant(s) is/are not in arrears on rents and/ -or tenant
charges due after the Closing Date and it being understood and ag: . reed that Buyer
shall have no obligation to collect any of such rent or tenant charges in arrears. If
Tenants are paying estimated operating costs and/or real estate taxes under the
Leases, Buyer shall perform a reconciliation of, such charges in accordance with
the terms of the Leases and Seller shall be entitled to receive any underpayments
attributable to Seller's period of ownership if and when collected by Buyer.
Buyer shall be given a credit for the amount of any and all security and other
deposits (including interest required under the Leases or by law) placed by or on
behalf of Tenants. Seller shall not, after the Closing Date, initiate or pursue any
action or any past due rent or other charge against any Tenant then currently
occupying premises at the Wind Property w I ithout Buyer's consent. Seller's
covenants and obligations contained in this clause (e) shall survive the C . losing.
18
LA\1906082.6
(f) All other items customarily prorated and/or adjusted at closing in the locality in
which the Wind Property is situated.
4.2. Recording Costs. The cost of recording the Deed (defined below) and
documentary stamp, transfer (both County and City, if any) and recordation taxes shall be paid
by Seller.
4.3. Escrow Fees. Escrow fees and charges Shall be split b
y the parties;
provided, however, if the Agreement is terminated due to a default,by one party, the defaulting
party shall pay all escrow fees and charges,
4.4. Title Policy. Seller shall pay that portion of the premium for the Title
Policy (as defined below) attributable to CLTA coverage in the amount of the Base Purchase
Price. Buyer shall pay any portion of the premium in excess of that which would have been
charged for CLTA coverage (except that Seller, and not Buyer, shall pay the cost of
endorsements and/or other title coverage accepted by Buyer as cures for Title Objections (as
defined below) pursuant to Section 5.1 below).
4.5. Title Objections. Pursuant to Section 5.1, below, Seller shall eliminate
any Title Objection(s) existing on the Closing Date that are monetary liens which can be
eliminated by the payment of a sum of money, except for monetary liens created by or on behalf
of Buyer.
4.6. Other Charges. All other costs of Closing shall be allocated between
Seller and Buyer.in accordance with custom in the locality in which the Wind Property is
situated.
5. Title and Possession.
5.1. Title and Surva. Buyer has received a current preliminary titl e report
(the "Title Report") with respect to the Property issued by Stewart Title Company ("Title
Compa,n "); and legible copies of all restrictive covenants, easements and other items listed a's
title exceptions therein. Buyer, at its cost, may obtain a survey (the "Survey'.') of I the Property,
and Seller promptly shall deliver to -Buyer a true, complete and correct copy of any survey of the
Property in Seller's possession or readily obtainable by Seller at no cost to Seller. In the event
(a) any exceptions appear in the Title Report that are unacceptable to Buyer or (b) the Survey
shows any easement, right-of-way, encroachment, conflict, protrusion or other matter affecting
the Property that is unacceptable to Buyer (collectively, the "Title Objections"), Buyer may
disapprove any of such items by providing to Seller notice of such Title Obj -
ections on or before
the expiration of the Contingency Period (defined in Section 6 below); provided, however, that in
the event the Title Report is amended or supplemented by Title Company during the
Contingency Period, then Buyer shall have'until the later of the last day of the Contingency
Period or three (3) business days following Buyer's receipt of any such amended or
supplemented Title Report to notify Seller of any disapproved item disclosed in the amended or
supplemented Title Report. In the event Seller is unwilling to commit to eliminate all of the Title
Objections to the satisfaction of Buyer wi I thin five (5) days after receipt by Seller of notice of the
Title Objections, Buyer may terminate this Agreement by delivering notice thereof in writing to.
19
LAU906082.6
Seller within three (3) business days after Seller's written notice to Buyer of Seller's
unwillingness to cure one or more of such Title Objections; provided, however, that Seller shall
be obligated in any event to eliminate on.or prior to Closing any Title Objection(s) that are
monetary liens created by Seller that can be eliminated by the payment of a sum of money,
except that Seller shall not be obligated to eliminate liens created by or on behalf of Buyer. if
Buyer terminates this Agreement pursuant to its rights set forth in the preceding sentence, all
sums� deposited on account of this Agreement (together with all interest earned), shall be
promptly (within five (5) days) returned by Escrow Agent to Buyer and neither party shall have
any further obligations under this Agreement. As used in this Agreement with respect to Buyer's
Title Objections, the term "eliminate" shall mean that Seller shall either (a) pay off or otherwise
terminate of record the Title Objections, or (ii) Seller or Buyer shall have obtained the
commitment of Title Company to insure Buyer's title to the Property without except . ion for such
Title Objections.
1 5.2. Delivery of Title. As a condition precedent forBuyer's benefit, good,
marketable and insurable fee simple title in and to the Wind Property shall be conveyed to Buyer
at Closing by grant deed (the "Deed"), in the form of Exhibit C, free and clear of all liens,
encumbrances, conditions, covenants, easements, restrictions and other exceptions and
objections, except the following (collectively referred to as the "Permitted Excpptions"): (i) any
title and/or Survey exceptions appearing in the Title Report and not disapproved by Buyer
pursuant to Section 5.1 above; (ii) non . -delinquent real property taxes (other than Excluded
Special AssessMents)'of the locality in which the Wind Property is located which are
attributable, which shall'be. prorated in accordance with Section 4. 1 (a); (iii) any Leases ap . proved
by Buyer pursuant to Section 6 below; (iV) any governmental restrictions or requirements,
whether or not recorded; or (v) any documents recorded pursuant to this Agreement. The above -
described title to the Wind Property to be conveyed to Buyer may hereinafter be referred to as
"Title".
5.3. Condition of Title. Not in lim. ' itation nor in breach of the terms of this
Agreement, Seller shall be conclusively deemed unable to convey good and marketable Title to
the Wind Property pursuant to this Agreement in the event Buyer's title insurance company is
unwilling to issue, at regular rates and without collateral support in the form, of guarantees,
escrows, etc.,. an ALTA owner's title insurance policy in the amount of the Base Purchase Price
and with such endorsements as Buyer may request within the applicable time frame set forth in
Section 5.1 above for the approval of title matters, insuring good and marketable title to the
Wind Property in Buyer or its assignee or nominee, as of the date of recording the Grant Deed to
be delivered at closing, without exceptions other than the Permitted Exceptions (the "Title
Polic Notwithstanding the foregoing, Buyer shall make all arrangements with Title
Company prior to the expiration of the Contingency Period regarding the form of the Title Policy
and/or endorsements, Title Company's willingness to issue the Title Policy without a Survey, the
inclusion of coverage of the Option described in Section 12, and all aspects of Title, and if Buyer
proceeds with the acquisition after the expiration of the Contingency Period� no (i I ) change in
Title due to Title Company's change in the form of Title Policy or endorsements, (ii) failure on
the part of Title Company to include coverage of the Option, or (iii) unwillingness on the part of
Title Company to issue the Title Policy without a S I urvey, shall constitute a failure to satisfy the
condition precedent described in Section 5.2.
20
LA\1906082.6
For purposes of clarification, and notwithstanding anything to the contrary set forth in
this Section 5.3, the condition precedent described in this Section 5.3 shall be satisfied, and
Seller shall conclusively be deemed able to convey good and marketable Title to the Wind
Property pursuant to this Agreement, in the event that Buyer receives at Closing:
(a) an ALTA Extended Owner's Policy (6/17/06) (i) in the amount of the
Base Purchase Price; (ii) showing good and indefeasible title to the Wind Land and good
and indefeasible title to the easements in that portion of the Rudnick Property described
on Exhibit A-1 attached hereto or the entire Southern Rudnick Property (the "Easement
Parcels"), as applicable, vested in Buyer, as the insured party thereunder, and insuring
good and indefeasible title to the fee estate in the Wind Land, and good and indefeasible
title to the Easement Parcels, subject only to those exceptions shown on the preliminary
title report attached hereto as Exhibit R (excluding those exceptions crossed out therein,
and with such changes shown thereon, 4 any), and including the endorsements attached
thereto or requested therein; (iii) from Title Company, and (iv) at regular rates and
without collateral support in the form of guarantees, escrows, etc.; and
(b) an ALTA standard coverage. optionee's policy, (i) in the amount of
$8,750,000; (ii) showing good and indefeasible title to, the Option with respect to the
Eligible Solar Land, ve ' sted in Buyer, as the insured party thereunder, and insuring good
and indefeasible title to the Option with respect to the Eligible Solar Land, subject only to
those exceptions shown on the preliminary title reports attached hereto as Exhibit S
(excluding those exceptions crossed out therein, and with such changes shown thereon, if
any), and including the 'endorsements. attached thereto or requested therein; (iii) from
Title Company, and (iv) at regular rates and without collateral support in the form of
guarantees, escrows, etc.
5.4. Delivga of Possession. Seller shall deliver full possession of the Wind
Property, free from all tenants and occupant's (other than the Tenants pursuant to the Leases), to
Buyer at closing. If Seller has delivered estoppels signed by such Tenants addressed to Seller
confirming that each such Lease is month -to -month and such estoppelsare otherwise acceptable
to Buyer, Buyer agrees to accept such Tenants' occupancy.
6. Investigations and Other Contingencies.
6.1. ClosinQ Under Rudnick Purchase Ageement. Seller's and Buyer's
obligations to close hereunder, shall be conditioned upon the occurrence of the closing under the
Rudnick Purchase Agreement, as amended, modified or replaced.
6.2. Contingency Period. For urposes of this aection 6, the term
p
"Contingency Period" shall have the meaning provided in the Vernon Purchase Agreement. The
Parties acknowledge that the Contingency Period has expired and that Buyer has elected to
proceed with the acquisition of the Wind Property, subject to satisfaction of all conditions
precedent for the benefit of Buyer set forth herein.
6.3; Buyer's Investigations. At any time, and from time to time, during the
period prior to the earlier to occur of the termination ofthis Agreement or Closing, Buyer shall
21
LA\1906082.6
have the right, at its sole cost and expense, personally or by such engineers, environmental
consultants, surveyors, architects, or other such parties as Buyer shall designate, to review the
Lease(s), to inspect, examine and conduct tests upon the Property and the Southern Rudnick
Property, and the physical, components thereof., and to inspect, review and/or test such other
matters pertaining to the financial or other condition of the Property and the Southern Rudnick
Property as Buyer may so desire (collectively, the "Investigations"). Such Investigations may
include, without limitation, structural and . engineering tests, environmental site analysis
(including subsurface and asbestos investigation), conducting market studies and the like.
Subject to the following sentence, Seller hereby grants Buyer unlimited access to the Property
and the Southern Rudnick Property for the purpose of conducting such Investigations during the
Contingency Period,, subject to the rights of tenants under leases encumbering such property.
Seller agrees to cooperate with Buyer in expediting such Investigations (including.joining with
Buyer in any requests for information from governmental agencies, etc'.), provided that (i) Buyer
shall notify Seller or its representative (orally or in writing) of an�y entry upon the Property or the
Southern Rudnick Property for the. purposes o f conducting an Investigation at least seventy-two
(72) hours prior thereof; (ii) Buyer shall not unreasonably interfere with Seller's or the Trust's
use of the Property or the Southern Rudnick Property, and Buyer 'shall promptly restore the
Property or the Southern Rudnick Property, as applicable, to substantially the condition that it
was in before such Investigation; (iii) Buyer shall indemnify and hold harmless Seller and the
Trust from any and all physical damages and/or injuries to the Property or the Southern Rudnick
Property, as applicable, or to third persons to the extent caused by such Investigations; (iv) Buyer
shall pay the costs and expenses of such Investigations; and (v) prior to entering upon the
Property or the Southern Rudnick Property, Buyer shall provide Seller and, if requested by
Seller, the Trust evidence of general liability insurance covering Buyer's activities on the
Property or the Southern Rudnick Property, as applicable, with liability limits no less than Two
Million Dollars ($2,000,000.00) per claim- and in the aggregate naming each of Seller and 'the
Trust as amadditional insured.
Seller has delivered to Buyer, to the extent in Seller's possession or control, true, correct
and complete copies of all leases encumbering the Property, including, without limitation, the
Leases, a complete current rent roll with respect to the Property, operating statements for the
Property (for the full three calendar years prior to the closing and for the current calendar year-
to-date), all permits and certificates of occupancy for the Property and the Southern Rudnick
Property, any building violation or fire/life safety violation notices issued b I y the city or county
with respect to -the Property, floor plans and square footage analyses for the Property (reduced
size if available), existingi plans and specifications for the Improvements, if any, current real
estate tax bills and assessment notices, insurance bills and policies, vendors - ' contracts (including
any leasing, management, maintenance or parking contracts and any broker leasing commission
agreements relative to any unpaid current or future commissions), contracts relating to the
design, construction, rehabilitation and/or modification of the Improvements (including, without
limitation, any contracts with architects, engineers and consultants), gates reports (for the prior
three (3) years) from the Tenant(s), if any, existing title reports (incl I uding any existing owner's
policy) and surveys, tenant correspondence files, any existing environmental (Phase I or Phase
11), asbestos, lead paint, structural, engineering, wind, geotechnical, an&or physical
Inspqctioii/condition reports and/or proposals regarding the Property and/or the Southern
Rudnick Property, and, other information concerning the.Property and the Southern Rudnick
Property Buyer may reasonably request (collectively, the "Property Documents"). Prior to the
22
LAV906082.6
date hereof, Buyer acknowledges receipt of the Property Documents listed on Exhibit D attached
hereto. Buyer acknowledges that Seller's ability to provide documents and information to Buyer
is dependent on Seller's receipt of the same from the Trust and that the inclusion of the Trust's
trustee or beneficiaries as direct or indirect owners of CIM Title Holder shall not be construed as
giving Seller control or possession of documents and information not separately provided to
Seller pursuant to the Rudnick Purchase Agreement.
To assist Buyer's diligence, efforts, Seller hereby agrees that Buyer may consult and meet
with Seller's engineers, environmental consultants, surveyors, architects or other such parties as
Buyer shall reasonably request (collectively, "Seller Consultants") to inquire about studies or
other work performed by such Seller Consultants on the Property, Buyer hereby agrees (i) to pay
or reimburse Seller for the time actually incurred by the Seller Consultants to consult and meet
with Buyer, at the regularly hour rate of such Seller Consultants, and (ii) to pay or, reimburse
Seller for any actual, out-of-pocket expenses incurred by the Seller Consultants in connection
with any such meeting. Seller further hereby agrees to permit Buyer to meet with officials of
regulatory and other agencies (including, without limitation, officials of the BLM, Kem County,
the U.S. Fish and Wildlife Service and/or the California Department of Fish and Game)
regarding the Property.. Buyer shall give Seller reasonable prior notice of any such meeting,and
shall permit Seller to attend any such meeting with its representatives.
Ij The Parties hereby acknowledge that Buyer does not approve of any grazing leases
encumbering the Property. Any grazing leases affecting the Property shall be negotiated
between the Parties following the Closing Date if mutually desired.
Notwithstanding anything to the contrary set forth in this Section 6.3, Buyer hereby
acknowledges that it, has satisfied itself concerning the Investigations described in this Section
6.3.
6.4. Buyer's Election to Proceed. If Buyer, in its sole, absolute and
nonreviewable discretion, shall deem the results of its review of title and Survey matters
pursuant to Section 5 and/or any or all Investigations described in Section 6.3 to be
unsatisfactory for any reason or if Buyer for, any reason or no reason at all elects not to proceed
with the acquisition' of the Wind Property, then Buyer shall deliver written notice to Seller
("Buyer's Election to Terminate") on or before the expiration of the Contingency Period and, by
such notice, terminate this Agreement whereupon Escrow Agent shall promptly return to Buyer
(within five (5) days) all sums deposited on account of this Agreement, including all interest
earned, and neither party shall have any further rights or obligations under this Agreement. If
Buyer does not timely deliver Buyer's Election to Terminate to Seller, the conditions of Section
6 of this Agreement shall be deemed satisfied and the entire Deposit shall become non-
refundable unless the Closing fails. to occur due to (i) a default by Seller or (ii) the failure of any
condition precedent to Buyer's obligation to purchase the Wind Pr I operty.
6.5. As -is, Where -is, With All Faults,. During the Contingency Period, Buyer
shall have had an opportunity to review all aspects of the Property to its full and complete
satisfaction. Except for Seller's express representations , -warranties and covenants contained
herein, (a) Buyer has agreed to accept the Property "AS -IS, WHERE IS, AND WITH ALL
FAULTS," and (b) Buyer unconditionally and completely releases Seller from any and all costs,
23
LA\1906082.6
EXECUTION VERSION
liability, damage, injury, expense, cause of action, claims and liabilities of every nature now or
hereafter arising (collectively, "Claims") with respect to the condition of the Property, including
any such Claims that Buyer does not know or suspect to exist in its favor as of the Effective
D ate, which if known to Buyer would have materially affected Buyer's willingness to enter into
this Agreement. Without making the foregoing release a general release, Buyer hereby waives
Section 1542 of the California Civil Code, which reads as follows:
"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 acknowledges that Buyer is represented by counsel and that Buyer understands the
significance of executing this Agreement and the release of claims set forth above.
Buyer's Initials:
Except for the express representations and warranties of Seller set forth in this
Agreement, Buyer acknowledges and agrees that Seller has made no warranties or
representations of any nature whatsoever as to the Property. Except as expressly set forth in this
Agreement, Seller disclaims any and all express or implied representations and warranties, and
Buyer waives irrevocably all of same (including, but not limited to, the size of the Property, the
zoning and current entitlements, the suitability of the Property for Buyer's intended use, the
feasibility of additional entitlements, the effects of governmental restrictions, soils and geology
conditions, access, ingress and egress, casements with respect to the Property, the presence of
Contaminants (as defined in Section 9.3), condition of title, insurability and all other matters of
any and every nature concerning the Property).
7. Conditions of Closing.
1
7.1. For BLqye . Buyer's obligat.ions to complete the transactions contemplated
by this Agreement are subject to the timely satisfaction of all of the following conditions (each of
which shall either be satisfied or waived by Buyer in its sole and absolute discretion):
(a) Title to the Property shall be free from all encumbrances and defects other than
the Permitted Exceptions, as provided in Section 5 hereof. and (subject to the last
sentence of Section 5.3) Title Company has confirmed that, immediately upon the
Closing, it will issue the Title Policy.
(b) The conditions of Section 6 hereof shall have been satisfied;
(c) Each and every representation and warranty of Seller set forth in Section 9.1
herein shall have been t d when made, and shall be true at the date of closing in
rue
all material respects;
24
LA\1906082.6
(d) Seller shall have performed its obligations under this Agreement, and Seller shall
be prepared to deliver, full possession of the Wind Property in accordance with
Section 5,4-
(e) Seller shall have made all of the deliveries contemplated by Section.8.2.1 within
the time periods specified in such Section;
(f) Buyer shall have received from each Tenant required to execute an estoppel as
required by Buyer, an estoppel certificate in the form of Exhibit E, executed by
such Tenant, without material changes or additional notations and confirming the
lease documentation with respect to such.Tenant delivered to Buyer in accordance
with Section 6.2 (or in the event that any Tenant will not deliver such an estoppel
certificate, Buyer may elect to accept, in which case Seller shall be obligated to
execute and deliver, certificate of representation. and warranty in substantially
such form signed by the Trust or Seller (at Seller's election) instead of such
Tenant);
(g) Buyer shall have received from each p arty (other than Seller) to any reciprocal
easement agreement, covenants, restrictions or similar documents encumbering
the Property, an estoppel certificate in the fon-n and substance reasonably
satisfactory to Buyer, which shall, among othe
r things, indicate whether any party
to such documents (i) is in default thereunder; (ii) owes any money to any other
party thereunder; 'and (iii) is obligated to perform any act which has not yet been
performed. Seller shall provide Buyer. with the most recent addregs'es known by
Seller of the parties to' any such documents so that Buyer may prepare th e
estoppel certificates. In the event that, despite �eller's commercially reasonable,
efforts, any such party will not deliver such an estoppel certificate, Seller shall
satisfy. this condition by delivering to Buyer a certificate of representation '
and
warranty in substantially such form signed by the Trust or Seller (at Seller's
election) instead of such party; and
(h) Buyer shall have received a copy of all closing deliveries under the Rudnick
Purchase Agreement.
In the event any of the foregoing conditions are not fulfilled on or before the date set for closing,
Buyer, at its option, may (subject to any rights Buyer may have under Section 14.2) either
(i) elect to complete the transactions contemplated by this Agreement, including accepting such
Title as Seller may convey (provided that, without limiting Seller's unconditional obligation to
eliminate on or prior to closing any Title Objection(s) that are monetary liens that can be
eliminated by the payment of a sum of money, Buyer may elect to have any Title' Objection(s)
that may. be. eliminated by the payment of a sum of money not in. excess of the Base Purchase
Price paid. and eliminated at the closing f]rom the net Base Purchase Price funds payable to
Seller) or (ii) terminate this Agreement, whereupon Escrow Agent shall promptly return to Buyer
(wit hin. five (5) days) all sums deposited on account of this Agreement, including all interest
earned,and neither party shall have any further rights or obligations under this Agreement.
25
LA\1906082.6
7.2. Eor -Seller. Seller's obligations to complete the transactions contemplated
by this Agreement are subject to the timely satisfaction of all of the following conditions (each of
which shall either be satisfied or waived. by Seller in its sole and absolute discretion):
(a) The conditions of Section 6 hereof shall have been satisfied;
(b) Each and every representation and warranty of Buyer set forth in Section 9.2
herein shall have been true when made, and shall be true afthe date of closing in
all material respects;
(c) Buyer shall have performed its obligations under this Agreement; and
(d) Buyer shall have made all of the deliveries contemplated by Section 8.2.2 within
the time periods specified in such Section.
In the event any of the foregoing conditions are not fulfilled on or before the date set for closing',
Seller, at its option, may terminate this Agreement and, if the failure of any of such conditions
results from Buyer's breach of its obligations under this Agreement, retain the Deposit.
Closing.
8.1. Closing Date. The closing of the transfer of Title to Buyer under this
Agreement shall be held at the office of Escrow Agent or at such other place as the Parties hereto
shall mutually agree, such closing to occur on orbefore October 17, 2008, or such other date as
the Parties hereto shall mutually agree; provided, however, that Buyer shall not be I obligated to
close after March 31, 2009, unless any delay past such date is due' to Buyer's inaction or actions
that are not in compliance with this Agreement. (The date on which such closing of title shall
take place is herein sometimes referred to as the "Closing Date". The terms "closi
KLQ "in
"Closin " "closin2 of title," and words of similar import are used interchangeably in this
Agreement, as the context may require, to mean the recordation of the Deed.) Buyer and Seller
shall endeavor in good faith to have the closing occur by "mail," without the necessity for
personal appearance by the parties.
8.2. Deliveries.
8.2.1 By Sell . At least two (2) business days prior to closing, Seller, at
its sole cost and expense, shall, in addition to any other documents required under this
Agreement, deliver to Escrow Agent, in form and content reasonably acceptable to counsel for
Buyer:
The Deed conveying to Buyer -or its assignee or designee Title to the Wind
Property as described in Section 4 hereof, together with a separate
statement (not to be recorded) -o.fdocumentary transfer tax dated as of the
date of closing and, signed by Seller or its representative stating the
applicable conveyance and transfer takes;
(i i) An affidavit Of Seller dated asLof the date of closing as customarily required
by Buyer's title insurance company, addressed to such title insurance
26
LA\1906082.6
company and Buyer, certifying that (a) no services have been performed or
materials supplied with respect to the Wind Property during the period
preceding the date of closing for which, under local law, lien rights may
exist (or waivers of mechanics' liens in the event any work shall have been
performed or materials delivered within said period, unless in connection
with any Investigation of the Wind Property undertaken by or on behalf of
Buyer prior to the date of closing), and (b) no tenants or other parties are in
or claim or assert rights to possession of the Wind Property, other than the
Tenants pursuant to the Leases.
(iii) A certification of Seller, dated as of the date of closing, addressed to Buyer,
that all representations and warranties of Seller in this Agreement remain
true and complete, that, to the best of Seller's knowledge, no facts exist
which would make such representations or warranties misleading or
incomplete in any respect, and that Seller has performed all of its material
obligations required by.it to be performed pursuant to this Agreement prior
to and during the Closing Date;
(iv) Such affidavits as may be customarily and reasonably required by Title
Company;
(v) An IRS Form 1099-B with respect to the proceeds of the closing
transaction;
(vi) All original Leases (or a certified true copy) and Tenant. correspondence
files, and all keys, security codes, maintenance records, plans, permits,
certificates of occupancy, surveys and building specifications pertaining to
the Property which Seller possesses, or to which Seller has access, as of the
time of closing, provided, however, that Seller may deliver such items
outside of escrow directly to Buyer upon the Closing;
(vii) An assignment in the form of Exhibit F;
(viii) A notice to each of the Tenants, each in the form of Exhibit 0;
(ix) Other documents that may reasonably be required by Buyer, Title Company
and/or Escrow agent to close the purchase and sale of the Wind Property in
accordance with this Agreement;
(x) A fully -executed and acknowledged Memorandum of Purchase and Sale
A greement in the form of Exhibit J attached hereto, to be recorded against
the Wind Land; and
(xi) A fully -executed and acknowledged Memorandum of Option in the form of
Exhibit M attached hereto, to be recorded against the Eligible Solar Land..
8.2.2 By Buye . At least two (2) business days prior to Closing, Buyer,
at its sole cost and expense, shall, in addition to any other documents required under this
27
LA\1906082.6
Agreement, deliver to Escrow Agent, in form and content reasonably acceptable to counsel for
Seller:
(i) A certification of Buyer, dated as of the date of closing, addressed to Seller,
that all representations and warranties of Buyer in this Agreement remain
true and complete and that, to the best of Buyer's knowledge, no facts exist
which would make such representations or warranties misleading or
incomplete in any respect, and that Buyer has performed all of its material
obligations required by it to be performed pursuant to this Agreement prior
to and during the Closing Date;
(ii) An assignment in the form of Exhibit R,
(iii) Other documents that may reasonably be required by Buyer, Title Company
and/or Escrow agent to ' close the purchase and sale of the Wind Property in
accordance with this Agreement;
(iv) A fully -executed and acknowledged Memorandum of Purchase and Sale
Agreement in the form of Exhibit J attached hereto, to be recorded against
the Wind Land; and
(v) A fully -executed and acknowledged Memorandum of Option in the form of
Exhibit M attached hereto, to be recorded against the Eligible Solar Land.
9. Representations and Covenants.
9.1. By Seller. Seller hereby represents and warrants as to the following
matters, each of which is so warranted to be true and correct as of the date hereof-, and also to be
true and correct as of the Closing Date, which truth and, correctness, in addition, shall be a
condition precedent to.Buyer's obligation to close the transaction contemplated hereby;
(i) Seller is a limited liability company duly organized and existing under and
by virtue of the,laws of the State of Delaware. Seller has the full right and
authority to enter into this Agreement and to consummate or cause to be
consummated the transaction contemplated by this Agreement. The person
signing this Agreement on behalf of Seller is authorized to do so.
(ii) Subject to Section 6.1, upon acquisition of the Property from the Trust, the
Seller shall have full right and title (x) to convey the Wind Property and no
other persons or entities. are required to consent to or join in the instrument
of conveyance to convey Title to Buyer and (y) to grant the Option with
respect to the Eligible Solar Land. To the extent any Tenant or any other
party has any such right, each such Tenant or party has irrevocably waived
all right to acquire the Wind Property as it, relates to the sale to Buyer.
There are no tenancies or claims of tenancies or possession affecting the
Wind. Property other than the Tenants p I ursuant to the Leases. Seller has no
knowledge that anyone will, at the Closing, have any right to possession of
the Wind Property, except pursuant to' the Leases.
28
LA\1906082.6
(iii) The Property is free and clear of all liens and encumbrances, except the
Permitted Exceptions. To the best of Seller's knowledge, there are no
outstanding, uncured notices of (and Seller has no knowledge of) violations
of law or applicable regulations, ordinances or codes affecting the Property.
(iv) Seller is a California "resident", if an individual, or has a."permanent place
of busi ' ness in California," of an entity, as such terms are defined in Section
18805 of the California Tax and Revenue Code, and Seller is not a "foreign
p . erson" as defined in the Foreign Investment in Real Property Tax Act, 26
U.S.C. 1445(F)(3). Seller agrees to execute one or more affidavits to that
effect, in such form as Buyer reasonably may require; including Seller's
federal tax identification number, prior to closing.
(v) Except as disclosed in writing to Buyer, Seller has not received notice of
any condemnation proceeding against the whole or any part of the Property,
and is not aware of any proposed or contemplated exercise of eminent
domain with respect to the Property or any portion thereof, or private
purchase and sale in lieu thereof.
(vi) To the best of Seller's knowledge, the Property and each portion - thereof is
in full compliance with any restrictive covenants for Seller's and any
tenant's present use of the Property.
(vii) Except as set forth in Exhibit H and the Title Report, Seller has never
received, and has no knowledge that the previous owner(s) of the Property
have ever received, a citation or notice for violating any Environmental
Laws (as defined below), with respect to all or any p I roportion of the
Property and/or any business conducted upon the Property, nor has Seller
any knowledge or reason to believe there exist any Contaminants, (as
defined below) upon the Property and, more particularly, to the best of
Seller's knowledge and belief, except as set forthin Exhibit H no owner or
occupant of the Property has ever caused any discharge, release, spillage,
loss, seepage or filtration of Contaminants from or on the Property (and
there has been no determination by any governmental agency or any court
of law that any owner or occupant of the Property has ever caused any such
discharge, release, spillage, loss, seepage or filtration.) Exhibit H and the
Title Report contain a list of all environmental reports and notices with
respe�qt to the Property or any portion thereof which Seller is aware. To the
best of Seller's knowledge and belief, there are no underground or
aboveground storage tanks at the Property.
(viii) Each Lease is in full force and effect and, except as set forth in the estoppel
certificates to be delivered pursuant to Section 8.2, unmodified. Seller has
performed all obligations.(including any obligations to perform work or pay
construction and/or improv ement allowances) . and is not in default under
any such Lease. Seller. has no knowledge of any defaults by any Tenant
under any Lease. All brokerage commissions, fees and other compensation
29
LAV906082.6
and remuneration in connection with each Lease (including with respect to
the future exercise of any option to extend, renew and/or expand) have been
(or will have been, as of the closing date) paid in full.
(ix) To the best of Seller's knowledge, Seller has received no written notice that
any Tenant is the subject of a bankruptcy or insolvency proceeding.
(x) Seller is not the subject of a bankruptcy, insolvency or probate proceeding.
(xi) The copy of each document delivered or to be deliver . ed (as applicable) to
Buyer in accordance with Section 6.3 is ot shall be a true, correct and
complete copy of each such document. Seller has not agreed to any
modifications or waivers, whether orally or in writing, with respect to any
such document, other than written modifications, which have been or shall
be delivered in accordance with Section 6.3.
(xii) Other than the Leases and any other contracts (including any leasing,
management and maintenance contracts) delivered to Buyer in accordance
with Section 6, Seller has not agreed to any' modifications or waivers,
whether orally or in writing, other than written modifications which shall be
delivered in'accordance with Section 6.3); Seller has no, knowledge of, and
has not entered into, any lease, tenan ' cy, occupancy or service agreement or
any other agreement that will affect the Property after the Closing.
(xiii) To the best of Seller's knowledge, there are no persons employed in
connection with the management, operation or maintenance of the Wind
Property who cannot be terminated as of the Closing and there are no
persons employed in connection with the management, operation or
maintenance of the Eligible Solar Land who cannot be -terminated as of the
Option Closing Date.
(xiv) No notice has been either received or delivered by Seller or any other party
regarding any outstanding default or breach under any of the Leases or any
of the vendors' contracts described in Section 9. 1 (xii) above, which has not
been cured -in. full.
(xv) To the best of Seller's knowledge, the Trust has obtained and is keeping,
anduntil Closing will keep, in full f6rce and effect all licenses required by
law in connection with the ownership or operation of the Property.
(xvi) To the best of Seller's knowledge and belief, th ' ere are . no pending or
threatened lawsuits or proceedings concerning the whole or any part of the
Property or any tenant on the Property.
(xvii) To Seller's knowledge (after reasonable investigation), the materials to be
delivered to Buyer pursuant to Section 6.3 above (including, without
limitation,. the historical financial information and operating information
30
LAU 906082.6
regarding the Property operations) shall represent true, correct and complete
copies of all of the documents described in said section.
For purposes hereof, "To Seller's best knowledge" or "to Seller's knowledge" or similar
language shall mean to the best actual knowledge of up to 4 persons affiliated with Seller (other
than principals or employees.of CIM Group, Incle) designated by Buyer that comprise the persons
most likely to be most knowledg.able regarding the Property., without duty to investigate or
inquire.
9.2. By Buyer. Buyer hereby represents and warrants as to the following
matters, each of which is so warranted to be true and correct as of the date hereof, and also to be
true and correct as of the Closing Date, which truth and correctness, in ad I dition, shall be a
condition precedent to Seller's obligation to close the transaction contemplated hereby:
(i) Buyer is a chartered city duly organized and existing -under and by virtue of
the Constitution and laws of the State of California and its charter. Buyer
has full legal power and authority to enter into and perform this Agreement
in accordance with its terms. The person signing this Agreement on behalf
of Buyer is authorized to do so. This Agreement constitutes the valid and
binding obligation of Buyer, enforceable in accordance with its terms,
except as such enforcement may be affected by bankruptcy, insolvency and
other laws affecting the rights of creditors generally. The execution,
delivery and performance of this Agreement and all documents in
connection therewith are not in contravention of or in conflict with any
agreement or undertaking to which Buyer is a party or by which Buyer may
be bound or affected.
(ii) The execution and delivery of this Agreement and the payment and
performance by Buyer of its payments and obligations hereunder require no
further action or approval in order to constitute this Agreement as a binding
and enforceable obligation of Buyer and all such actions have, been duly
taken by Buyer.
(iii) Buyer's financial resources are adequate to consummate the transaction
contemplated hereby in accordance with the time limits set forth herein.
(iv) Except for the express representations, warranties and covenants of Seller
set forth in this Agreement, the consummation of this transaction shall
constitute Buyer's acknowledgement that it has independently inspected
and investigated the Property and has made and entered into this Agreement
based upon such inspection and investigation and its own examination of
the condition of the Property, both directly and through Buye?s
independent contractors, agents and representatives. Except for the express
representations, warranties and covenants of Seller set forth in this
Agreement, upon Closing, Buyer shall assume the risk that adverse matters,
including, but not limited to, construction defects and adverse physical and
environmental conditions, may not have been revealed by Buyer's
31
LA\1906082.6
investigations, and, except for Seiler's express representations, warranties
and covenants contained herein, Buyer, upon Closing, shall be deemed to
have waived, relinquished and released Seller from and against any and all
claims, demands, liability, causes 'of action with respect to the condition of
the Property, including such for toxic torts or other such environmental
claims, losses, damages, costs and expenses (including attorneys' fees and
court costs) of each and every kind or character, known or unknown, which
Buyer might have asserted, or alleged against Seller (and Seller's members,
officers, managers, attorneys, agents or representatives) at any time by
reason of or arising out of any latent or patent construction defects or
physical conditions, violations of any applicable, laws (inc - luding, without
limitation, any environmental laws) and any and all other acts, omissions,
events, circumstances or matters regarding the Property.
9.3. Definitions. For purposes of this Agreement, the following terms have the
meanings described in them below:
(a) "Contaminants" means any pollutants, hazardous or toxic substances or wastes, or
.contaminated materials including oil and oil products, asbestos, PCBS, urea
formaldehyde and all other materials and substances designated or regulated as
hazardous or toxic substances or wastes, pollutants or contaminated materials
under any Envirom-nentat Law.
(b) "Environmental Laws" means the Clean Water Act, Clean Air Act, Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund Amendment and Reauthorization
Act, the Toxic Substances Control Act, the Occupational Safety and Health Act,
the Carpenter -Presley -Tanner Hazardous Substance Account Act (California
Health and Safety Code §§25300-25395), the Hazardous Waste Contract Law
(California Health and Safety Code §§26100-25250.25) and all other Federal,
State or local environmental statutes, rules and regulations as enacted or amended
from time to time and all licenses, permits, certificates or like authorizations
promulgated under any of the foregoing.
9.4. Leasing Commissions. Seller shall satisfy and discharge all leasing
commissions and fees (whether or not due and payable, whether fixed or contingent and whether
due with respect to options or renewals) with respect to the Leases and the Property.
10. Seller's Covenants.
10. 1. Conduct Pending Closing. During the period of time following the
Effective Date and on or prior to the Clo sing Date: (a) Seller shall not consent to any liens,
attachments or other encumbrances being placed,filed or recorded against the Property or any
portion thereof by the Trust or any other person on entity; (b) Seller shall not consent to the Trust
failing to maintain the Property (including all buildings and grounds) in their usual and normal
condition, and as required pursuant to the Leases and other agreements affecting the Property;
(c) Seller shall satisfy and discharge all leasing commissions and fees (whether or not due and
32
LAU006082.6
payable, whether fixed or contingent and whether due with respect to options or renewals) with
respect to any Lease and the Wind Property for which Seller is responsible" (d)(Seller shall not
consent to any modification, amendment or termination of any Lease or other agreement
affecting the Wind Property, or the grant of any concessions thereunder, by the Trust, or consent
to the Trust entering into new leases or agreements affecting the Wind Property or any part
thereof without the prior written consent of Buyer.; (e) Seller not shall not consent to the Trust
failing to perform any of the obligations required to be performed by it under any of the Leases
and the other agreements affecting the Property; and (f) Seller shall give Buyer immediate notice
of any default by the Trust under the Rudnick Purchase Agreeme I nt and of any notice from the
Trust alleging or otherwise asserting any default' by CIM Group Acquisitions (including any
assignee or affiliate of Seller) utider the Rudnick Purchase Agreement.
10.2. Cooperation. Until the Wind Permitting Date and subject to Buyer
reimbursing Seller for any expenses reasonably incurred by Seller, Seller agrees to provide
reasonable assistance and consultation to Buyer regarding: (a) a transaction with LADWP; (b)
obtaining fee interests or rights of way from parcels of land that are adjacent to or nearby the
Property and that are owned directly by individual beneficiaries of the Trust or by the Bureau of
Land Management ("RLW'), including, to the extent feasible, allowing Buyer to "step into"
Seller's position with BLM (in whatever way, if any, may be permissible under BLM rules) with
respect to such lands; and (c) obtaining entitlements for the wind and solar projects, including
releasing environmental consultants under contract with Seller to work for Buyer. At any time,
Seller hereby agrees not to directly or indirectly oppose Buyer's projects on the Property. Prior
to the earlier of (a) the date that Buyer notifies Seller in writing that it will not exercise the
Option or the date that the Option lapses in accordance with its terms or (b) the first anniversary
of the Option Closing Date, Seller hereby agrees not to seek to arrange contracts with any
go , vernmental entity or community choice aggregato'r to sell energy or capacity from any project
on the Eligible Solar Land. If Seller effects any sale of the Eligible Solar Land when the
restriction -in the immediately preceding sentence is still in effect, Seller shall impose such
restriction on its buyer in an agreement in which Buyer is made a third party beneficiary in a
form reasonably acceptable to Buyer.
11. Buyer's Covenants.
11. 1. Exclusive Neyotiation. Unless otherwise agreed to by Seller, Buyer
hereby agrees, for a period of not more than one hundred twenty (120) days after the Closing
Date, to negotiate exclusively with LADWP regarding any power offtake contracts relating to the
Wind Land, prior to commencing any "RFO"' process or any negotiations with any, other
potential counterparties for such contracts. Nothing in t his Agreement obligates Buyer to enter
into any transaction with LADAT or to propose any particular tertns.
12. Solar Property.
12-1. Grant of Option. Seller hereby grants to Buyer the'exclusive right to
purchase (the "Optio "), on the terms and subject to the conditions set forth below, the
following:
33
LA\1906082.6
(a) Solar Land. A fee simple interest in up to 5,000 acres designated by Buyer (the
"Designated Solar Land") from among I the parcels located in Kern County, California
described in Exhibit I attached hereto and made a part hereof ' (the "Eligible Eastern Solar
Land") and the parcels located in Kern County, California described in Exhibit N
attached hereto and made a part, hereof (the "Eligible Western Solar Land" and, together
with the Eligible Eastern Solar Land, the "Eligible Solar Land"), which designation shall
be made by written notice to Seller (the "Designatio "), provided that (i) in no event shall
Seller be obligated to make any conveyance that would constitute a civil or criminal
violation.of the Subdivision Map Act and (ii) any Designation of property within the
Eligible Western Solar Land, if made, shall be not less than 640 acres. Seller shall make
the Designation no later than the date that is twenty four (24) months after the Closing
Date, failing which the Option shall lapse. As used herein, "Solar Land" or "SU shall
mean the Eligible Solar Land prior to the Designation and, following the Designation, the
Designated Solar Land. The Solar Land shall be subject to the Seller Retained
Easements. Buyer's specification of the Designated Solar Land shall reflect prudent
industry practices in the selection of sites for solar projects. Buyer shall select parcels
that are useful or valuable for development of Buyer's intended solar projects and shall
not select parcels that would be valuable primarily for making Seller's remaining
attractive solar land less valuable or developable by Seller. Subject to the foregoing,
Seller acknowledges that in specifying the -Designated Solar Land Buyer intends to select
what Buyer believes to be the best portions of the Eligible Solar Land, which may consist
of multiple parcels that are not contiguous, provided. that such selection shall not (x)
cause any remaining portion of the Eligible Solar Land to be without access to public
roads (including across Seller's property or easements granted by Buyer) or (y) cause
land that would otherwise be usable for normal agricultural or commercial purposes to
become unusable for such purposes (taking into account easements granted by Buyer).
Seller agrees to give Buyer prompt written notice if it intends to sell or market for sale all
or any portion of the Eligible Western Solar Land to an entity not affiliated with Seller.
Seller may accelerate the deadline for Buyer to make a Designation with respect to all or
portions of the Eligible Western Solar Land as -follows: If, froth time to time, Seller and
an entity not affiliated with Seller enter into a letter of intent or other similar written
arrangement ("LOV) setting forth the property to be sold (the "Proposed Propert "), the
price and the other principal terms of for sale of all or any portion of the Eligible Western
Solar Land (a "Proposed Sale") and granting the buyer exclusivity, if Seller desires to
accelerate such deadline, Seller shall give a copy of the LOI to Buyer along with a
statement that Seller is accelerating Buyer's deadline to make a Designation with respect
to the Proposed Property (an "Acceleration Notice"). Following Buyer's receipt of an
Acceleration Notice, Buyer may make a Designation with respect to all or portions of the
Proposed Property (consistent with the standards in the immediately ;preceding
paragraph) not later than ninety (90) days after its receipt of the Acceleration Notice. If
Buyer does not timely make a Designation with respect . to any portion of the Proposed
Property (the "Undesignated Property'), Seller may proceed to close the sale of the
Undesignated Property at any time within one (1) year after the date of the Acceleration
Notice and, in connection with such closing, Buyer shall execute such documents in
recordable form as are reasonably requested by Seller to evidence that the Option does
34
1,A\1906082.6
not apply to the Undesignated Property. If the sale of the Undesignated Property does not
close within one (1) year after' the date of the Acceleration Notice, the Undesignated
Property shall continue to be eligible to be made subject to a Designation as if no
Acceleration Notice had been given, but without prejudice to Seller's right to issue a new
Acceleration Notice. This paragraph shall terminate upon the earlier to occur of Buyer's
Designation of its full 5,000 acre allotment or twenty four (24) months after the Closing
Date.
The right to issue an Acceleration Notice shall not apply to sales of Proposed
Property for purposes of development of solar energy projects greater than 5 MW in the
aggregate on the Eligible Western Solar Land and Seller shall so restrict it.s buyer in an
agreement in which Buyer is made a third party beneficiary in a form reasonably
acceptable to Buyer. Nothing in this paragraph imposes a restriction on the use of any of
the Eligible Western Solar Land sold by Seller to a buyer if Seller had not issued an
Acceleration Notice with respect to the property sold.
(b) SL Improvements. The buildings, structures, fixtures and other
improvements, if any, affixed to or located on the Solar Land (the "SL Improvements"
and., together with the WL Improvements, collectively, the "Improvements").
(c) SL Appurtenances. The following (collectively, the "SL Appurten.ances"):
(i) except for the Excluded Mineral Rights, all oil, gas and other
hydrocarbon substances or other mineral rights on and under the Solar Land;
(ii) except for the Excluded Subsurface Water, all water, water stock
and water rights on and under the Solar Land; and
(iii) all rights, easements and rights -of -way appurtenant to, or used in
connection with, the beneficial use and enjoyment of the Solar Land.
(d) SL Transmission Easements. Easements appurtenant to and benefiting the
Solar Property located in, over, across and through a portion of the Southern Rudnick
Property (i) to permit Buyer to access and use electric power transmission lines of
LADWP, SCE and any other applicable Transmission Owner and (ii) to permit any other
Permissible Uses, in each � case in a manner that is consistent with the Access
Requirements all as set forth in this clause (d) (collectively, the "SL Transmission
Easements").
(i) - On the closing date of the acquisition of the Solar Land (the
"Option Closing Date"),.Seller shall record in favor of Buyer a transmission
easement agreement (the "SL General Trans ission Easement. Agreement")
m
encumbering the Southern Rudnick Property, pro *ding for rights substantially as
vi
set forth in this clause (d). --The purpose of the SL General Transmission
Easement Agreement is solely to put of record the possibility of a recording of the
SL Specific Transmission Easement (as (defined below) and the possible
relocation thereof as provided in clauses (ii) and (iii) below, respectively� Buyer
35
LA\1906082.6
shall not have.any right to use the easement created pursuant to the SL General
Transmission Easement Agreement for transmission or other uses of or on the
affected property and may only use the affected property as provided for in the SL
Specific Transmission Easement Agreement. If the SL Specific Transmission
Easement Agreement (as defined below) has not been executed and recorded on
or before the first anniversary of the Option Closing Date for reasons other than
Seller's default, the SL General Transmission Easement Agreement shall expire
and be of no further force or effect, and Buyer shall execute, acknowledge where
appropriate and deliver any reasonable documents submitted by Seller to release
the SL General Transmission Easement Agreement.
(ii) After the Option Closing Date, Buyer and Seller
shall cooperate to
determine a preferred, specific route for the SL Transmission Easements (the "SL
Specific Transmission Easement Route")� Buyer and Seller shall negotiate,
execute and record an easement agreement for the SL Specific Transmission
Easement Route (the "SL Specific Transmission Easement AgKeemen "), which
agreement shall contain provisions and permit Permissible Uses, provided that
(A) the width of the corridor specified by the SL Specific Transmission Easement
Agreement shall not exceed the industry standard for the type of transmission line
at issue; (B) the SL SpecificTransmission Easement Agreement shall not restrict
Seller's right to cross the easement created pursuant to the SL Specific
Transmission Easement Agreement (the "SL, Specific Transmission Easement")
or to install roads, utilities, transmission lines or other improvements parallel to or
ctossing the SL Specific Transmission Easement, unless the foregoing would
materially interfere with Buyer's intended use of the SL Specific Transmission
'Easement; (C) the SL Specific Transmission Easement Agreement shall allow
Seller and its agents to use any access, maintenance or patrol roads installed on or
serving the SL Specific Transmission Easement unless such use would materially
interfere with Buyer's intended use of the SL Specific Transmission Easement;
(D) the SL Specific Transmission Easement shall generally be non-exclusive, but
shall be exclusive in areas that by industry practice are exclusive (such as, but not
limited to, areas for substations, switchyards and an industry -standard area under
each transmission tower), (except that, subject to clause (B), Seller shall be
entitled in any event to use any roads or accessways installed by Buyer); and (E)
regardless of the terms of the standard form LADWP and SCE easements for
transmission lines, in no evimt shall the holder of the SL Specific Transmission
Easement use the same for cellular or other telecommunications purposes except
to serve solely the benefited property of the SL Specific , Transmission Easement
or to serve transmission functions.
(iii) From and after the recording of the SL Specific Transmission
Easement Agreement until the second anniversary of the Option Closing Date,
Buyer shall have (x) a one-time right to designate an alternate rout I e for the SL
Specific Transmission Easement Route for interconnection with LADWP., (y) a
one-time right to designate an alternate route for the SL S 'ecific Transmission
p
Easement Route for interconnection with SCE and (z) a one-time right to
designate an alternate route for the SL Specific Transmission Easement Route for
36
LA\1906082.6
interconnection with one other Transmission Owner, if any, in each case t I o the
extent reasonably deemed appropriate by Buyer to facilitate project approvals or
to satisfy one or more Transmission Owners (including, if requested by Buyer,
connecting. to substations other than the Pine Tree Substation, the Barren Ridge
Substation and the Tehachapi Sub I Substation). In. such event, Seller shall, at the
request of Buyer, amend the SL Specific Transmission Easement Agreement for
re-recording to an alternate route designated by Buyer and subject to Seller's
approval, which approval shall not be unreasonably withheld. Buyer shall
reimburse Seller for any reasonable, out . of -pocket, third party costs �incurred by
'Seller. in connection with documenting and analyzing any requested amendment
to the SL Specific Transmission Easement Agreement in accordance with this
clause (iii). From time to time, Buyer may also request minor amendments to the
SL Specific Transmission Easement Route to accommodate specific
environmental or terrain concerns. (such as avoidance of habitats for endangered
species or avoidance of terrain that will make use of the easement prohibitively
expensive). Seller hereby agrees (x) not to unreasonably withhold its consent to
any such minor amendment and to promptly execute the same following its
receipt thereof and (y) that any such minor amendment shall not constitute an
exercise of Buyer's right to designate an alternate route for, the SL Specific
Transmission Easement Route pursuant to the first sentence of this clause (iii).
(iv) At any time following the Option Closing Date, Seller may request
Buyer to amend the SL Specific Transmission Easement Agreement to exclude
any portions of the Southern Rudnick Property on which Seller will be
constructing improvements or as to which Seller otherwise has a need to clarify
that the SL Specific Transmission Easement could not lie upon the. requested
portion of the.Southern Rudnick Property. If the requested amendment would not
unreasonably burden Buyer's potential routes for and intended uses of the SL
Specific Transmission Easement, . Buyer shall consent to such request and execute
an appropriate amendment in recordable form. Seller shall reimburse Buyer for
any. reasonable, out-of-pocket, third party costs incurred by Buyer in connection
with documenting and analyzing any requested amendment to the SL Specific
Transmission Easement Agreement in accordance with this clause (iv).
(v) (a) Upon the earlier to occur of the commencement of
construction of a transmission line to LADWP over the SL Specific Transmission
Easement or the recording of an alternate route for the SL Specific Transmission
Easement Route f6r interconnection with LADWP as provided in clause (iii)
above, Buyer shall, upon request of Seller, release and reconvey t I he SL General
Transmission Easement Agreement with respect to all portions of the Southern
Rudnick Property that ha.d.only been included thereon for purposes of providing
an alternate route for connection to LADWP.
.(b) Upon the earlier to occur - of the commencement of
construction of a transmission line to SCE over the SL Specific Transmission
Easement or the recording of an alternate route for the SL Specific Transmission
Easement Route for interconnection with SCE as provided in clause (iii) above,
37
LA\1906082.6
Buyer- s hall, upon request of Seller, release and reconvey the SL General
Transmission Easement Agreement with respect to all portions of the Southern
Rudnick Property that had only been included thereon for purposes of providing
an alternate route for connection to SCE.
If Buyer has not exercised its one-time right to designate an alternate route for the
SL Specific Transmission Easement Route for interconnection with one other
Transmission Owner as provided in clause (z) of the first sentence of clause (iii)
above by the date that -the releases described in clause's (a) and (b) of this clause
(V) have occurred, then Buyer's one-time right to designate an alternate route for
the SL Specific Transmission Easement Route'for interconnection with one other
Transmission Owner as provided in clause (z) of the first sentence of clause (ii I i)
above shall terminate and Buyer shall, upon request of Seller, release and
reconvey the SL General Transmission Easement Agreement in its entirety.
(vi) Except. as provided in the last sentence of clause (iii) above, the
use of the SL Transmission Easements shall be at no additional cost paid by
Buyer to Seller; provided that nothing in this clause (vi) shall limit Buyer's
obligation to satisfy any indemnity obligation as part of the Access Requirements.
(e) SL Miscellaneous Easements. Easements appurtenant to and benefiting
the Solar Property located in, over, across and through a portion of the Southern Rudnick
Property to permit Buyer (i) to access utilities other than those provided by Transmission
Owners and (ii) to access and construct roads of any type (dirt, gravel or paved), in each
case in a manner that is consistent with the Access Requirements all as get forth in this
clause (e) (collectively, -the "SL Miscellaneoug Easements"), but only to the extent that
any such access cannot reasonably be provided (including taking into account the costs to
Buyer of using the Solar Property to access the relevant utilities or constructing roads on
the Solar Property) on the Solar Property or within or adjacent to the SL Spec-ific
Transmission Easement Route.
W On the Option Closing Date, Seller shall record in favor of Buyer
an easement agreement (the "SL General Miscellaneous Easement Agreemenf')
encumbering the Southern Rudnick Property providing for rights substantially as
set forth in this clause (e). The purpose of the SL General . Miscellaneous
Easement Agreement is solely to put of record the possibility of a recording of the
SL Specific Miscellaneous Easement (as defined below) and the possible
relocation thereof as provided in clauses (ii) and (iii) below, respectively. Buyer
shall not have any right to use the easement created pursuant to the SL General
Miscellaneous Easement Agreement for any uses of or on the affected property
and may only use the affected property as provided for in the SL Specific
Miscellaneous Easement Agreement. If the SL Specific Miscellaneous Easement
Agreement (as defined below) has not been executed and recorded on or before
the first anniversary of the Option Closing Date for reasons other than Seller's
default, the SL General. Miscellaneous Easement Agreement shall expire and, be
of no further. force or effect, and Buyer shall execute, acknowledge where
38
LAU906082.6
appropriate and deliver any reasonable documents submitted by Seller to release
the SL General Miscellaneous Agreement,
(ii) From time to time after the Option Closing Date, Buyer and Seller
shall cooperate to determine specific locations for the SL Miscellaneous
Easements (the "SL Specific Miscellaneous Easement Locations"). Buyer and
Seller shall negotiate, execute and record, an easement agreement for the SL
Specific Miscellaneous Easement Locations (the "SL Specific Miscellaneous
Easement Agreement"), provided that (A) the SL Specific Miscellaneous
Easement Agreement shall not restrict Seller's right to cross the easement created
pursuant to the SL Specific Miscellaneous Easement Agreement (the "SL Specific
Miscellaneous Easement") or to install roads, utilities, transmission lines or 'other
improvements parallel to or crossing the SL Specific Miscellaneous Easement,
unless the foregoing would materially interfere with Buyer's intended use of the
SL Specific Miscellaneous Easement; (B) the SL Specific Miscellaneous
Easement Agreement shall allow Seller and its agents to use any access,
maintenance or patrol roads installed on or serving the SL Specific Miscellaneous
Easement unless such use would materially interfere with Buyer's intended use of
the SL Specific Miscellaneous Easement; (C) the SL Specific Miscellaneous
Easement shall generally be non-exclusive, but shall be exclusiv e in areas that by
industry practice are exclusive (except that, subject to clause (B), Seller shall be
entitled in any event to use any roads or accessways installed by Buyer); and (D)
in no event shall the holder of the SL Miscellaneous Transmission Easement use
the same for cellular or other telecommunications purposes except to serve so lely
the benefited property of the SL Specific Miscellaneous Easement.
(iii) At any time after the Option Closing Date, Seller may request
Buyer to amend the SL Specific Miscellaneous Easement Agreement to exclude
any portions of the Southern Rudnick Property on which Seller will be
constructing improvements. or as to which Seller otherwise has a need to clarify
that the SL Specific Miscellaneous Easement could not lie upon the requested
portion of the Southern Rudnick Property. If the requested amendment would not
unreasonably burden Buyer's potential routes for and intended uses of the SL
Specific Miscellaneous Easement, Buyer shall consent to such request and
execute an appropriate amendment in recordable form. Seller shall reimburse
Buyer for any reasonable, out-of-pocket, third party costs incurred by Buyer in
connection with documenting and analyzing any requested amendment to the SL
Specific Miscellaneous Easement Agreement in accordance with this clause (iii).
(i ' V) The use of the SL Miscellaneous Easements shall be at no
additional cost paid by Buyer to Seller; provide& that nothing in this clause (iv)
shall limit Buyer's obligation to satisfy any indemnity obligation as part of the
Access Requirements.
(f) SL License. An irrevocable, non-exclusive license, expiring on the second
anniversary of the Option Closing Date, to access the Southern Rudnick Property for the
purpose of conducting studies, investigations and tests thereon, and the physical
39
LA\1906082.6
components thereof, to the extent reasonably related to Buyer's development of the
Eligible Solar Land, in each case -in a manner that is consistent with the Access
Requirements (collectively, the "SL License").
The Solar Land, the SL Improvements, the SL Appurtenances, the SL Transmission Easements,
the SL Miscellaneous Easements a nd the SL License are hereinafter sometimes referred to
collectively as the "Solar Propert
12.2. .012tion Consideration. The Option shall be effective only if the
transaction with respect to the Wind Property closes. Buyer's purchase of the Wind Property
shall be the consideration for the Option.
. 12.3. Exercise Price. The exercise price payable by wire transfer of
immediately available funds through escrow upon exercise of the Option shall be (a) (i) $1,400
per acre acquired, to the extent that the Option is exercised beffire the first anniversary of -the
Closing Date; (ii) $1,750 per acre acquired, to the extent that the Option is exercised on or aAer
the first ahniversary of the Closing Date but before the second. anniversary of the Closing Date;
or (iii) $2,100 per acre acquired, to the extent that t he Option is exercised on or after.the second
anniversary of the Closing Date but before the end of the Option Term; pLus (b) a deferred
purchase price in an amount to be determined in accordance with paragraph (b) of Annex A (the
"Deferred. Solar Purchase Price").
12.4. Option Tenn. The period during which Buyer
may exercise and close the
Option (the "Option Tenn") shall commence on the day after the Closing Date and shall expire at
11:59 p.m. (Los Angeles time) on the third anniversary of the Closing Date. If Buyer has not
exercised the Option during the Option Term, strictly in compliance with this Agreement, then
the Option shall unconditionally terminate and no longer exist.
12.5. Title. Title to the Solar Property shall be delivered to Buyer or its
nominee free and clear of any and all liens and encumbrances other than those liens and
encumbrances reflected in the Title Policy issued by Title Company on the Closing Date, and
any reservations, documents or instruments recorded) or entered in'to pursuant to this Agreement
other than easements and similar encumbrances entered into in the normal course of business or
that will not materially affect the use of the Solar Property for a solar project by Buyer.
12.6. Exercise of Option. In the event Buyer exercises the Option by giving at
least 45 days prior written notice thereof to Seller, the purchase and sale shall be effected with
Stewart Title of California, Inc. as the title insurance company and as escrow holder, or with
such other title company or escrow company as the parties hereto may choose, and in any event
such purchase and sale shall reflect the terms and conditions that are typical for comparable
transactions, provided that Seller shall not be required to make any representations or warranties
beyond those that are comparable to the representations and warranties contained in this
Agreement or that are not true at the time the Option is exercised or closed.
12.7. Entitlements. During the Option Term, whether or not Buyer has
exercised the Option, Seller shall facilitate Buyer and Buyer's representatives in dealing as . a
contract purchaser of the Solar Property with applicable governmental authorities having
40
LA\1906082.6
jurisdiction over the development and improvement of the Solar Property. In addition, Buyer
may pursue entitlements prio r to the exercise of the Option and Seller agrees to provide
reasonable cooperation in connection with such efforts (such as by signing applications, if and to
the extent, necessary), provided Seller shall not be obligated to execute or consent to any
document that will restrict the use of the Solar Property in a manner not revocable without cost
to Seller as a matter of right by Seller.
12.8. Roorts, Etc. After Buyer's purchase of the Wind Property, Seller or
Buyer shall have the right to initiate studies or analyses regarding the Solar Property by first
giving written notice to the other party with a description of the proposed study or analysis and
the estimated cost. The party receiving notice shall have ten (10) days to elect in writing to pay
for 50% of the proposed study or analysis, and in such event each party shall pay for 50% of the
proposed study and shall have the right to receive copies of any such study or analysis. If such
election is not timely made, then the receiving party shall have no obligation to pay for such
study or analysis and no right to receive a copy of such study or analysis. Upon the lapse of the
Option, Buyer shall, at no cost to Seller, assign to Seller all of Buyer's rights with respect to any
reports, studies, data,,surveys, engineering analysis or any other evaluative materials regarding
any portions of the Solar Property not purchased by Buyer.
13. Risk.of Loss. The risk of loss or damage to the WL Improvements or any
personal property by fire or other casualty or cause beyond Seller's control', or the taking or
proposed taking of all or a portion of the Wind Land or the WL Improvements by condemnation,
eminent domain or other governmental acquisition proceedings (collectively, "Damage") in
advance of the Closing Date shall be bome by Seller. In the event of Damage that involves a
sum of less than $250,000, Buyer shall accept the Wind Property as provided in this Agreement
without any reduction 6f the Base Pur ' chase Price, and Buyer shall be entitled to an assignment.
from Seller of all rights assigned by the Trust to all insurance proceeds or condemnation or other
award due or payable on account of such Damage, plus a closing statement credit equal to the
deductible under such policy, less any amount actually expended by Seller or the Trust in
connection with the repair (including temporary repair) or replacement of such Damage. In the
event that such Damage involves a sum in excess of $250,000, Buyer shall have the right. either:
(a) to terminate this Agreement prior to the time by which Seller must terminate the
Rudnick Purchase Agreement, in which event all amounts deposited on account of
this Agreement'(including accrued interest) shall be returned.to Buyer and this
Agreement shall terminate and none of the parties hereto shall have any further
rights or obligations hereunder; or
(b) to accept the Wind Property as provided in this Agreement without any reduction
of the Base Purchase Price, in which event Buyer shall be entitled to an
assignment from Seller of all rights assigned by the Trust to all insurance
proceeds or condemnation or other award due or.payable on account of such
Damage, plus a closing statement credit equal to the deductible under such olicy
p I
less any amount actually expended by Seller or the Trust in connection with the
repair (including temporary repair) or replacement of such Damage.
14i. Default, Liquidated Damage, .
41
LA\1906082.6
EXECUTION VERSION
14. 1. IN THE EVENT THAT THE SALE OF THE WIND PROPERTY FAILS
TO CLOSE AS A RESULT OF ANY BREACH OR DEFAULT OF BUYER, WHICH
BREACH OR DEFAULT IS NOT CURED WITHIN TEN (10) DAYS AFTER WRITTEN
NOTICE BY. SELLER TO BUYER (OR, SUBJECT TO CLAUSE (f) OF SECTION 10. 1
SUCH SHORTER TIME PERIOD AS IS NECESSARY FOR CURE UNDER THE RUDNICK
PURCHASE AGREEMENT), THE DEPOSIT, TOGETHER WITH A . LL INTEREST
EARNED, SHALL BE PAID TO SELLER AS SELLER'S SOLE AND EXCLUSIVE
REMEDY FOR BUYER'S BREACH OR DEFAULT AND AS FULL LIQUIDATED
DAMAGES (AND NOT AS A PENALTY OR FORFEITURE) FOR SUCH BREACH IN
VIEW OF THE UNCERTAINTY AND IMPOSSIBILITY OF ASCERTAINING SUCH
DAMAGES TO SELLER. BOTH SELLER AND BUYER AGREE THAT THE AFORESAID
AMOUNT CONSTITUTES A REASONABLE FORECAST OF DAMAGE WHIC
BE SUSTAINED BY SELLER IN THE EVENT OF H WOULD
BREACH BY BUYER CONSIDERING
ALL THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT.
BUYER SHALL HAVE NO FURTHER LIABILITY EITHER IN LAW OR IN EQUITY FOR
BREACH OR DEFAULT BY BUYER UNDER THIS AGREEMENT (INCLUDING FAILURE
OR REFUSAL TO ACCEPT TITLE TO THE PROPERTY) AFTER DELIVERY OF THE
DEPOSIT TO SELLER,
SELLER'S INITIALS: BUYER'S INITIALS: A 6,
14.2. In the event that the sale of the Wind, Property fails to close as a result of
any breach, default, act or omission of Seller, Buyer, at its option, may either (i) elect to
complete the transactions contemplated by this Agreement notwithstanding Seller's breach
(in ' eluding the prosecution of an action for specific performance . , if necessary), in which event
Buyer conclusively shall be deemed to have waived all Seller's breaches known to Buyer as of
the Closing, or (ii) terminate this Agreement, in which event, (a)'the Deposit, together with all
Interest earned- -thereon,- shall- be promptly- (1within-five- -(-5) days)- retumed-to--Buyer,- (b)-Seller-
shall reimburse Buyer for out-of-pocket expenses actually incurred by Buyer (including
reasonable attorneys' fees) for the examination of the Property, preparation and negotiation of
this Agreement, conducting its inspections of the Property and preparation for Closing, up to a
maximum of $200,000, and (c) Buyer conclusively shall be. deemed to have waived all other
rights and remedies arising out of Seller's breaches.
B. Brokerage., With respect to the transaction contemplated by this Agreement, each'
of Seller and Buyer represents that it is not represented by a broker. Each party hereto agrees
that if any person or entity makes a claim for brokerage commissions or finder's fees related to
the sale of the Property by Seller to Buyer, and such claim is made by, through or on account of
any acts or alleged acts of said party or its reptes . entatives, said party will protect, indemnify,
defend and hold the other party free and harmless from and against any and all loss, liability,
cost, damage and expense (including reasonable attorneys' fees) in connection therewith.
16. Assignment, Binding Effect,
k
16-1. Buyer may, without the consent of Seller, and without being relieved of
any liability hereunder, (a) at any time, assign its rights under this Agreement to any affiliate, but
only if the affiliate assumes in writing the obligations hereunder and provides to Seller an
42
LA\1906082.6
EXECUTION VERSION
14J. IN THE EVENT THAT THE SALE OF THE WIND PROPERTY FAILS
TO CLOSE AS A RESULT OF ANY BREACH OR DEFAULT OF BUYER, WHICH
BREACH OR DEFAULT IS NOT CVRED WITHIN TEN (10) DAYS AFTER WRITTEN
NOTICE BY SE I LLER TO. BUYER (OR, SUBJECT TO CLAUSE (f) OF $ECTION 10. 1,
SUCH SHORTER TIME PERIOD AS IS NECESSARY FOR CURE UNDER THE RUDNICK
PURCHASE AGREEMENT), THE DEPOSIT, TOGETHER WITH ALL INTEREST
EARNED, SHALL BE PAID TO SELLER AS SELLER'S SOLE AND EXCLUSIVE
REMEDY FOR BUYER'S BREACH OR DEFAULT AND AS FULL LIQUIDATED
DAMAGES (AND NOT AS A PENALTY OR TORFEITURE) FOR SUCHBREACH IN
VIEW OF THE UNCERTAINTY AND IMPOSSIBILITY OF ASCERTAINING SUCH
DAMAGES TO SELLER. BOTH SELLER AND BUYER AGREE THAT THE AFORESAID
AMOUNT CONSTITUTES A REASONABLE FORECAST OF DAMAGE WHICHWOULD
BE SUSTAINED BY SELLER IN THE EVENT OF BREACH BY BUYER CONSIDERING
ALL I THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT.
BUYER SHALL HAVE NO FURTHER LIABILITY EITHER IN LAW OR IN, EQUITY FOR
BREACH OR DEFAULT BY BUYER UNDER THIS, AGREEMENT (INCLUDING FAILURE
OR REFUSAL TO ACCEPT TITLE TO THE PROPERTY) AFTER DELIVERY OF T14E
DEPOSIT TO SELLER.
SELLER'S INITIALS: BUYER'S INITIALS:
14.2. In the event that the sale of the Wind Property fails to close as a result of
any breach, default, act or ornissiom of Seller, Buyer, at its option, may either (i) elect to
complete the transactions contemplated by this Agreement notwithstanding Seller's breach
(including the prosecution of an action for specific performance, if necessary), in which event
Buyer conclusively shall be deemed to have waived all Sella's breaches known to Buyer as of
the Closing, or (ii) terminate this Agreement, in which event (a) the Deposit, together with all
Interest earned thereon, shall be promptly (within five (5) days) returned to Buyer, (b) Setter
shall reimburse Buyer for out-of-pocket expenses actually incurred -by, Buyer (including
reasonable attorneys' fees) for. the examination of the Property, preparation and negotiatio ' n of
this Agreement, conducting its inspections of the Property and preparation for Closing, up to a
maximum of $200,000, and (c) Buyer conclusively shall be deemed to have waived. all other
rights and remedies arising out of Seller's breaches,,
15, Bjqlcerag_g, With respect to the transaction contemplated by this Agreement, each
of Seller and Buyer represents that. it is not represented by a b I roker. Each party hereto agrees
that if any person or entity makes a claim for brokerage commissions or finder's fees related to
the, sate of the Property by Seller to Buyer, and such claim is made by, through or on account of.
any acts or alleged acts of said party or its representatives, said party will protect, indemnify,
defend and hold the other party free and han-riless from and against any and all, loss, liability,
cost, damage and expense (including reasonable attorneys' fees) in connection therewith.
16, Assignment; Binding Effect.
16. 1, Buyer. may, without the consent of Seller, and without being relieved of
any liability hereunder, (a) at any time, assign its rights under this A, greement to, any affiliate, but
only if the affiliate assumes in writing the obligations hereunder- and provides to Seller an
42
LA\1906092.6
original of such assignment and assumption agreement (and provided that the assignment does
not have.the effect of causing the conveyance of any property to be conveyed by Seller
hereunder to. violate the Subdivision Map Act) or (b) solely after the Closing, assign its rights
under this Agreement (in whole or in part) to a buyer of all or a portion of the Property. For the
avoidance of doubt, the parties acknowledge that, by the terms of Annex A any assignment by
Buyer after the Closing of its rights under this Agreement (in whole or in part) to an entity that is
not an affiliate of Buyer does --not obligate the assignee to make any:payments under Annex A
and that whatever payments, if any, are owing under Annex A are the sole obligation of Buyer
hereunder, except that any party acquiring and exercising the Option shall be subject to the terms
of Annex A as applied to the Option.
16.2. (a) Seller may, without the consent of Buyer, and without being relieved
of any liability hereunder, at any time, assign its rights under this Agreement to an affiliate, but
only if such affiliate assumes in writing the obligations hereunder and provides to Buyer an
original of the. relevant assignment and assumption agreement; (b) Seller may not assign its
rights under this Agreement prior to the Closing to any entity that is not an . affiliate; (c) Seller
shall not sell or otherwise transfer any fee simple interest in the Solar Property prior to the earlier
of (A) (i) the date that Buyer notifies Seller in writing that it will not exercise the Option or (ii)
the date that the Option lapses in accordance with its terms, or (B) the first anniversary of the
Option Closing Date; and (d) neither Seller nor any of its affiliates shall sell or ot I herwise transfer
any interest in the Deferred Purchase Price in a way that would constitute a sale of securities
under applicable state or federal securities laws
16.3. Subject to this Section 16, this Agreement shall insure to the benefit of and
bind the parties hereto ' and their respective legal representatives, heirs, administrators, executors,
successors and assigns.
17. Entire Aareement-, Modifications; Advice of ounsel. This Agreement embodies
the entire contract between the parties hereto with respect to the Property and the subject matter
hereof and.supersedes any and all prior negotiations, agreements and understandings, written or
oral, formal or informal, all of which are deemed to be merged 'herein. No modification or
amendment to this Agreement of any kind whatsoever shall be made or claimed by Seller or
Buyer, and no notice of any extension, change, modification or amendment made or claimed by
Seller or Buyer (except with respect to expressly permitted unilateral waivers or e xtension rights)
shall have any force or effect whatsoever unless the same are endorsed in writing and fully
signed by Seller and Buyer. This Agreement has been drafted through a joint collaborative effort
of the parties, each of which has been represented by competen I t, qualified, independent counsel
licensed to practice law in the State of California, and by such counsel. Each of Buyer and Seller
hereby acknowledges and agrees that (i).it has been represented b
y such competent, qualified,
independent counsel in connection with this Agreement; (ii) it has executed and delivered this
Agreement with and based on the advice and guidance of . such counsel; and (iii) this Agreement
is the result of full and deliberate negotiations between the parties hereto and the advice and
assistance of their respective counsel and, therefore, any generally applicable rule of construction
to the effect that ambiguities in a document or agree I ment are to be construed in the manner less
or least favorable to the drafting party shall not apply to this Agreement; accor(Jmgl . y, since this
Agreement and its provisions were the subject of such a joint and collaborative eff6rt, any
arribiguity in this Agreement or any of its provisions shall not be construed in favor of or against
43
I-A\1906082.6
either of the parties. Without limiting the generality of the foregoing, each of Buyer and Seller
hereby acknowledges and agrees that the.fact that this Agreement was prepared by one party's
counsel as a matter r of convenience shall have no import or -significance whatsoever. Any
uncertainty or ambiguity of this Agreement shall not be construed against either party because of
the fact that the other party's counsel prepared this Agreement in its final form.
18. Pronouns; Joint and Several Liabilit . All pronouns and nouns and any variation
thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the parties or the co r
ntext may require.
19. Invalidity. If any term or provision of this Agreemen I t shall to any extent or Bor
any . reason be held invalid, illegal or unenfo..r.ceable, such invalidity, illegality or unenforce.ability
shall not affect any other provision of this Agreement, but the remainder of this Agreement and
each term and provision of this. Agreement shall be valid and enforceable to the fullest extent
permitted by law, subject to such modification hereof as may be necessitated by such invalidity,
20. Al2�licable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
21. Notice. Any notice required or given under this Agreement shall be effective
when deposited with the United States mail, certified, return,receipt requested, postage prepaid,
or upon delivery (or refusal of delivery) when sent by overnight courier service or by facsimile
transmission, and addressed to the following addresses:
If to Seller:
c/o CIM Group, Inc. -
6922 Hollywood Blvd., Suite 900
Los Angeles, California 90028
Attention: General Counsel
Facsimile No: (310) 496-2887
with a copy to:
CIM Group, Inc.
6922 Hollywood Blvd., Suite 900
Los Angeles, California 90028
Attention: Jennifer Gandin
Facsimile No: (323) 860-4901
with a copy to:
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, CA 90071
Attention: Greg Thorpe, Esq.
Facsimile No: (213) 430-6401
If to Buyer:
44
LA\1906082.6
with a copy to:
The City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attention; Eric T. Fresch, City Administrator
Telephone No..: (323) 583-8811
Facsimile No.: (323) 587-7596
C
The City of Vernon
4310-"-,, S anta F e Avenue
Vernon, California 90058
Attention: Jeff Harrison, Esq., City Attorney
Telephone No.: (323) 583-881'1
Facsimile No.: (323) 587-7596
with a copy to: I
Latham,& Watkins LLP
355 South Grand Avenue
Los Angeles, California 90071-1560
Attention: David B. Rogers, Esq.
Telephone No.: (213) 485-1234
Facsimile No.: (213) 891-8763
Either party may designate by notice given to the other a new address to which notices intended
for such party shall thereafter be given.
22. Calculation of Time. Whenever in this Agreement a period of time is stated as a
number of days it shall be construed to mean calendar days; provided, however, that when any
period of time so stated, would end upon a Saturday, Sunday or legal holiday, such period shall
be deemed to end upon the next day following which is not a Saturday, Sunday or legal holiday.
23. Expenses. Whether or not the transactions contemplated under this Agreement
are consummated, each party, unless otherwise provided, shall pay itsown expenses incident to
the preparation and perfon-nance of this Agreement, including, without limitation, attorneys'
fees.
24. Waivers, Extensions. No waiver of any breach of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of
any otheragreement or, provision herein contained. No extension of time for the perfon-nance of
any obligation or act shall be deemed an extension of time for the performance of any other.
obligation or act.
25. Exhibits. All exhibits attached to this Agreement are hereby incorporated by this
reference into this Agreement.
45
LA\1906082.6
26. Countgparts; Captions. This Agreement may be executed in counterparts, each.
of which shall be deemed an original. The captions are for convenience of reference only and
shall not affect the construction to be given any of the provision hereof.
27. Attorneys' Fees, If either party becomes involved in an action,or proceeding or
litigation arising out of this Agreement or the performance thereof, the prevailing party shall be
entitled to its attorneys' fees and costs (including attorneys' fees and costs pursuant to I I U.S.C.)
from the other party. Unless judgment goes by default, the attorneys'. fee award shall not be
computed in accordance with any Court schedule, but shall be such as to fully� reimburse all
attorneys' fees and costs actually incurred in good faith, regardless of the size of the judgment, it
being the intention of the parties to fully compensate for all the attorneys' fees and costs paid or
incurred in good faith; provided, however, said attorneys' fees and costs shall in no event exceed
the amount of any monetary judgment.'
28. Survival. The representat I ions, warranties and covenants of Seller and Buyer
contained herein (other than Section 9 hereof) shall be deemed to apply as of the date of this
Agreement and as of the Closing Date, and shall survive the Closing Date; provided, that the
representations, warranties and covenants of Seller and Buyer contained in Section 9 hereof shall
be deemed to apply as of the date of this Agreement and as of the Closing Date, and shall survive
the Closing Date for a period of only one (1) year after the Closing Date.
29. Approvals. Any approval by Buyer or Seller that are required not to be
unreasonably withheld shall be understood to mean not to be unreasonably withheld, delayed or
conditioned.
30. , Disputes. U
30.1. Dispute Resolution. Any and all disputes, claims or controversies ari
sing
out of, relating to, concerning or pertaining to the terms of this Agreement, or to either Party's
performance or failure of performance under this Agreement ("Disput__"'), which Dispute the
Parties have been. unable to resolve by informal methods after undertaking a good faith effort to
do so, shall first be submitted to an informal dispute resolution under the procedure described in
Section 30.2 below; if the matter is not resolved through such procedures, it shall be referred for
final and binding arbitration under the procedures described in Section 30.3.
30.2. Informal Resolution. Any unresolved Dispu es'
t shall initially be referred
to Buyer's City Administrator, or designee, and to any person with express authority -to bind
Seller that is designated by Seller for resolution. Such executives or their respective designees
shall meet at least once, and shall negotiate in a commercially reasonable manner for a period of
fifteen (15) business days in an effort to resolve the Dispute. Neither Party shal I I seek to
c . ommence anylitigation or arbitration proceeding without first satisfying this Section 30.2, and
any failure of a Party to do so shall constitute a sufficient basis for terminati I on without prejudice
of any proceeding so attempted.
30.3. Arbitration. Either Party may initiate binding arbitration with respect to
the Dispute by making a written demand for binding arbitration before an arbitrator that is a
former judge or attorney with experience resolving major commercial disputes with I in th I e electric
46
LA\1906082.6
industry with JAMS, its successor or any other mutually. agreeable arbitrator (the "Arbitrator") at
any time following the unsuccessful conclusion of the informal resolution provided for in
Section 30.2. The Parties shall cooperate with one another in promptly selecting the Arbitrator
and in scheduling the arbitration to commence no, later than one hundred eighty (180) days from
the date of the initial written demand for bi
nding arbitration. If, notwithstanding their good faith
efforts, the Parties are unable to agree upon a mutually acceptable Arbitrator, the Arbitrator shall
be appointed as provided for in California Code of Civil Procedure Section 128.1.6. -Upon a
Party's written demand for binding arbitration, such Dispute, including the determination of the
scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration
before the Arbitrator ' in accordance with the laws of the State of California, without regard to
principles of conflicts of laws. Except as provided for herein, the arbitration shall be conducted
by the Arbitrator in accordance with the rules and procedures for arbitration of complex business
disputes for the organization with which the Arbitrator is associated; absent the existence of such
rules and procedures, the arbitration shall be conducted in accordance . with the California
Arbitration Act, California Code of Civil Procedure Sect , ion 1280 et seq. However,
notwithstanding the rules and procedures that would otherwise apply to the arbitration, and
unless the Parties agree to a different arrangement, the place of the arbitration shall be in Los
Angeles County, California; each side in the arbitration shall ble entitled . to take up to three
depositions, and all direct testimony in the arbitration shall be submitted in the form of affidavits
or declarations under pen alty of peiJury. Each Party. shall cooperate in making available for
cross-examination at the arbitration hearing its witnesses whose direct testimony has been so
submitted. Judgment on the award may be entered in any court having jurisdiction. , The
Arbitrator shall, in any award, allocate all of th' costs of
e the binding arbitration (other than each
Party's individual attorneys' fees and costs related to such Party's participation in the arbitration,
which fees and costs shall be borne by such Party), including the fees of the Arbitrator, in such
manner as the Arbitrator shall determine. Until such award is made, however, the Parties shall
share equally in paying the costs of the arbitration.
30.4. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT
TO TRIAL BY JURY IN ANY LITIGATION ARISING UNDER THIS AGREEMENT.
31. Intentionally Omitted.
32. Memorandum of Purchase and Sale Agreement/Memorandum of Option/Release
of Interests. On the Closing.Date, Buyer and Seller shall record a Memorandum of Purchase and
Sale Agreement in the form of Exhibit J attached hereto encumbering the Wind Land and a
Memorandum of Option in the form of Exhibit M attached hereto encumbering the Eligible Solar
Land. Buyer hereby agrees to give notice to Seller of any sale or transfer of all or any portion of
the Property to an entity not affiliated with Buyer at least fifteen (15) business days in advance of
the closing of such sale or transfer. The notice shall include a. copy of the purchase agreement or
other applicable primary agreement relating to the proposed transaction. Buyer shall notify
Seller of any material changes or u dates to the primary agreement pro y
P mptl after receiving
same and in any event not later than three (3) business days prior to the closing of such sale or
transfer. -Seller acknowledges and agrees that the obligations under Annex A shall terminate
with respect to any interest in the Property that is sold or otherwise transferred in an an-n's-length
transaction by Buyer to an entity not affiliated with Buyer and shall not be an obligation of any
such buyer or transferee. Provided that Buyer is not in default of any obligation to pay Seller
47
LA\1906082.6
any Deferred Purchase Price, Seller hereby agrees from time to time upon request of Buyer (a)
that upon the sale or transfer of all or any portion of the Property by Buyer to an entity not
affiliated with Buyer, Seller shall execute for recording, at Buyer's sole cost and expense, an
instrument terminating the applicable Memorandum with respect to that portion of the Property
that is sold or transferred; and (b) to execute such documents as are reasonably requested by
Buyer to subordinate the encumbrance of the applicable Memorandum to any easement, right-of-
way or other access right granted by Buyer to an entity not affiliated with Buyer. If and to the
extent that Buyer enters into a sale -leaseback transaction with respect to all or any portion of the
Wind. Land with an entity not affiliated with Buyer, Buyer shall re-record an amended 'applicable
Memorandum encumbering.its lease.hold interest.
(signature page follows]
EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement —as of the date
first above written.
SELLER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
B
Name: Nicholas V. Morosoff
Title: Secretary
BUYER:
CITY OF VERNON, ATTEST:
a California -chartered city
By: By:
Name., Name:
Title: Title:
APPROVED AS TO FORM:
By:
Name:
Title.,
S-1
LA\1906082
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
SELLER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By:
Name:
Title:
BUYER:
CITY OF VERNON,
a California chartered city
By:
Name: Hilario Gonz'ales
Title: Mayor Pro-Tem
LA\1906082
ATTEST:
nie—kristenlIgnomoto
'ritle:.Deputy City Clerk
APPROVED AS TO FORM:
By:
N
Tij
t !CJ V,� A. Harrison
, it Attorney
Acceptance by Escrow Agent
Escrow Agent ac.knowledgps receipt of the foregoing Agreement and acce
instructions contained therein. pts the
Dated: Octo.ber 2008
COMMERCE ESCROW COMPANY
BY:- 6-o
Title: Z,, �t'!Z
Date: eof
S-2
LAN.1906.082.6
ANNEX A
DEFERRED PURCHASE PRICE
(a) Deferred Purchase Price —Wind Land Projects. Seller shall be entitled to
receive payment of the Deferred Purchase Price with respect to the Wind Land from time to time
as and if applicable pursuant to this Annex A. Not later than July 20 of each year following the
Closing Date (i.e., twenty (20) days following Buyer's fiscal year end of June 30), Buyer shall
give to Seller a statement and report (an "Annual Statement") showing the calculation of the
Adjusted Cash Position (as defined below) for the Wind Land Projects -as of such fiscal year end
date along with a reasonably detailed calculation of such Adjusted Cash Position. If as of such
fiscal year end date such Adjusted Cash Position is positive, then Buyer shall, not later than ten
(10) days after such notice, pay to Seller fifteen percent (15%) of such Adjusted Cash Position
for such fiscal year end date. If as of such fiscal year end date such Adjusted Cash Position is
negative or zero, then neither Buyer nor Seller shall be obligated to make any payment to the
other under this paragraph (a) for such date.
: (b) Deferred Purchase Price —Solar Land Projects. Seller shall be entitled to
receive payment of the Deferred Purchase Price with respect to the Solar Land ftom time to time
as and if applicable pursuant to this Annex A. Not later than July 20 of each year following the
Closing Date (i.e., twenty (20) days following Buyer's fiscal year end of June 30), Buyer shall
give to Seller an Annual Statement showing, the calculation of the Adjusted Cash Position for the
Solar Land Projects as of such fiscal year end date along with a reasonably. detailed calculation
of,such Adjusted Cash Position. If as of such fiscal year end date the Adjusted Cash Position is
positive, then Buyer shall, not later than ten (10) days after such notice, pay to Seller twenty-five
percent (25%) of such Adjusted Cash Position for such fiscal year end date. If as of such fiscal
year end date such Adjusted Cash Position is negative or zero, then neither Buyer nor Seller shall
be obligated to make any payment to the other under this paragraph (b) for such date.
(c) Defined Terms. For purposes of this Annex A, the following terms shall
have the following meanings:
(i) "Adjusted Cash Position" as of the end date for any fiscal year.
means a negative or positive number separately calculated with respect to each of the
Wind Land Projects and the Solar Land Projects as follows:
(a) the Adjusted Cash Position as of the end of the prior fiscal
year for such Applicable Projects (which will be deemed to be zero dollars
($0) as of June 30, 2008) plus
(b) Adjusted Realized Cash, if any, during such fiscal year for
such Applicable Projects minus
(c) the sum of. (x) Adjusted Project Costs for such fiscal year
for such Applicable Projects, (y) the Applicable Gross Payout, if any,
made in such fiscal year on account of there having been a positive
balance in the Adjusted Cash Position for such Ap plicable Projects as of
Amex A I
LA\1906082.6
the end. of the prior fiscal year and (z) the Yearly Carry Amount for such
Applicable Project and such fiscal year.
(ii) "Adjusted Project Costs" for an Applicable Project and for any
fiscal year means Project Costs for such Applicable Project and for such fiscal year
grossed up to reflect the time value of money at.ten percent (10%) per annum from the
date a given expense quali,fied as a Project Cost to the applicable fiscal year end date.
(iii) "Adjusted Realized Cash" for an Applicable. Project and for an'
y
fiscal year means Realized Cash for such Applicable Project and for such fiscal year
grossed up to reflect the time value of money at ten percent (10%) per annum from the
date a given Receipt qualified as Realized Cash to the applicable fiscal year end date.
(iv) "Anlicable Gross Nyout" means (a) in the cage of the Wind Land
Projects, the amount paid by Buyerto Seller in a given fiscal year divided by 0.15 and (b)
in the case of the Solar Land Projects, the amount paid by Buyer to Seller in a given
fiscal year divided by 0.25.
(v) "Applicable Land" means the Wind- Land and/or the Solar Land.
(vi) "Applicable Projects" means the Wind Land Projects and/or the
Solar Land Projects.
(vii) "Excluded Projects' means one or more wind and/or solar energy
projects on the Applicable Land that are designated by Buyer in accordance with
paragraph (c) below and that have an aggregate capacity equivalent at any given time of
not more than 100 MW.
(viii) "Project Costs" for an Applicable Project and for any fiscal year
means all costs and expenses actually paid or incurred by Buyer during such fiscal year
(in each case without duplication) that relate to any projects planned to be developed,
constructed, operated, sold or decommissioned on the Applicable Land (whether incurred
on such land or offsite) including without limitation: costs of land acquisition, rents and
royalties; fees and expenses for engineers, consultants, surveyors, counsel, contractors,
brokers, financial advisors and other service providers; equipment procurement costs or
lease payments; transmission studies., interconnection fees or costs and costs gen-ties,
substations 6r other transmission infrastructure and costs f6r usage trans mission facilities;
fees, expenses and interest expense (but not.in excess of 1.0% per annum. on indebtedness
incurred to parties related to Buyer) on indebtedness for money borrowed that is secured
by assets of the Applicable Project, but only to the extent the proceeds are used to fund
costs that would qualify as Project Costs ("Project Debt"); public and private
infrastructure and related costs to facilitate projects located on the Applicable Land (but
only to the extent a private developer would pay for such costs); salary and benefit costs
of personnel assigned to work substantially full time on the, Applicable Projects;
provided, however, that Project Costs shall not include (x) any allocation for Buyer's
overhead or for the costs of Buyer's employees not described above or (y) costs
.attributable to up to any Excluded Projects. .. For avoidance of doubt, (A) the Project
Annex A-2
LA\1906082.6
Costs for the Wind Land Projects for first fiscal year will include the amounts expended
by Buyer for the acquisition of the Wind Property, (B) the Project Costs for the Solar
Land Projects for a given fiscal year will include the amounts expended by Buyer for
option exercise to acquire the Solar Property and (C) a reasonable allocation will be made
as between the Wind Land Projects and the Solar Land Projects. of any costs that are
incurred for both such projects.
I (ix) "Realized Cash" means for any fiscal year any Receipts received
by Buyer during such fiscal. year that relate any projects planned.to be developed,
constructed, operated, - sold or decommissioned on the Applicable Land, , including,
without limitation: rents or royalties; proceeds from the sale of energy, curtailment
payments, warranty or insurance proceeds or payments, capacity, resource adequacy or
ancillary services; receipts and/or proceeds from the sale, of tax credits or equity;
governmental subsidie,s of any kind; proceeds from the sale of land or other project
assets; net proceeds from any Project Debt in excess of any Project Debt being
refinanced; interest actually earned on* any reserves held in segregated accounts; . and
interest deemed to have been earned at a rate of 10% per annum on any reserves not held
in segregated accounts; provided, however, that (v) Realized Cash shall be net of any
reasonable reserves designated by Buyer for the incurrence of Project I Costs, (w) any
Receipts constituting. proceeds of indebtedness will be deemed received by Buyer only
when held by Buyer without contractual restriction uqder the agreements evidencing such
indebtedness, (x) the amount of any deposit received by Buyer in connection with any
sale of any asset shall not be included in the calculation of Realized Cash unless and until
such deposit is no longer refundable to the relevant purchaser, (y) all amounts of Realized
Cash shall be subject to paragraph (f) of this Annex A below, and (z) for the avoidance of
doubt given that Buyer is a municipality, there shall be no attribution of tax benefits
(whether production tax credits, accelerated depreciation, investment tax credits or
otherwise) unless the value of same has been realized buy Buyer in cash and (zz) no cash
or other value shall be attributed to any Excluded Projects.
(x) "Receipts" means cash or cash equivalents and the fair market
value of any noncash consideration received by Buyer.
(xi) "Solar Land Projects" means any solar energy projects located on
the Solar Land.
(xii) "Wind Land Projects" means any wind energy project located on
the Wind Land.
(xiii) "Yearly Carry Amount" for an Applicable Project and for any
fiscal year means: if, after giving effect to the Applicable Gross Payout, if any, made for
such Applicable Project following such fiscal year end, there is a negative balance in the
Adjusted Cash Position, then the number that is ten percent (10%) of such negative
balance multiplied times negative one (4). Otherwise, the Yearly Carry Amount shall be
zero (0).
(c) Excluded PrQi��cts.
Annex A-3
LA\1906082.6
(i) Desig!lation. Buyer does not yet know what wind or solar projects
it may want to have serving its load.. (Moreover, because Buyer has not yet conducted
the environmental review and economic feasibility assessment' described in Recital 0),
Buyer cannot know what projects, if any, it can develop on the Applicable Land.) Buyer
may by written notice to Seller given at any time prior to the commercial operation date
of a given project either (x) designate one or more'wind and/or solar energy projects on
the Applicable Land as Excluded Projects or (y) revoke a prior designation of a project as
an Excluded Project; provided, however, that in no event shall Buyer be able to designate
as an Excluded Project the project or, projects. that prov . ide the first 150 MW of capacity
developed on the Property. Buyer may only designate a project as an Excluded Project if
Buyer's City Council makes a good faith determination that the energy from such project
will serve the load of the Electric System (i.e., not be resold other than short term sales to
manage load).
(ii) Calculations Relating to Excluded Prqi�jcts.
(a) If there are any Excluded Projects, Buyer shall separately
calculate the Costs and Receipts for the Excluded Projects and the Applicable
Projects so that Project Costs and Receipts shall not be aggregated, and there shall
be no Project Costs or Receipts that are double counted between the Excluded
Projects and the Applicable Projects.
(b) If there are any Excluded Projects, Buyer shall separately
calculate the Costs and Receipts for the Excluded Projects and the Applicable
Projects so that Project Costs and Receipts shall not be aggregated, and there shall
be no Project Costs or Receipts that are double counted between the Excluded
Projects and the Applicable Projects. Moreover, all shared costs (transmission
lines, substations, etc.) for any, Excluded Projects and for any Applicable Projects
shall be fairly apportioned and supported by a detailed report provided by Buyer
to Seller. If Seller believes that the shared costs for any Excluded Projects and for
any Applicable Projects have not been fairly apportioned, then Seller shall deliver
to Buyer, not later than ninety. (90) days after Buyer's notice to Seller of the
Excluded Projects, a detailed proposal of what Seller believes would be a fair
allocation of the shared costs for such Excluded Projects and for such Applicable
Projects. Buyer and Seller shallenter into negotiations regarding the same and, if
necessary, resolve any disagreement or dispute (a "Shared Costs Disput
through the baseball arbitration process under paragraph (g) below.
.(iii) True -Up. If Buyer timely designates a project as an Excluded
Project or timely revokes a designation, in either case, for which there had an Annual
'Statement for one or more prior years, then promptly following such designation or
designation Buyer shall deliver to Seller a detailed statement (the "True -Up Statement")
restating all prior applicable Annual Statements. The Trqe�Up Statement for any newly
designated Excluded Project shall exclude all Project Costs and Realized Cash, if any, for
all prior periods. The True -Up Statement for any revoked designation shall include all
Project Costs and Realized Cash, if any, for all pni - or periods. All True -Up Statements
shall have, a separate detailed accounting for the Wind Land and the Solar Land for each
Annex A-4
LA\1906082.6
applicable prior year and shall include a calculation of whether, as restated, in any prior
year the ' re would have been, any -Deferred Purchase Price owing to Seller. If so, Buyer
shall include with the True -Up Statement a check payable to Seller equal to the Deferred
Purchase Price owing for each such year together will interest thereon from the payment
date for the applicable year to the date of payment an a per annum rate of ten percent
(10%) compounded annually (the "True --Up Payment"). If Seller had received any
payments of the Deferred Purchase Price in any prior year that, as reflected in the True -
Up Statement, would not have been owing, then Seller shall retain all such prior
payments ("Excess Payments") and have no obligation to refund same to Buyer;
provided, however, that the Excess Payments together with interest at a per annum rate of
ten percent (10%) compounded annually shall be credited to reduce Buyer's obligation to
make future payments of the Deferred Purchase Price (whether for the Wind Land or the
Solar Land).
(iv) Seller Review. Seller may negotiate the check for the True -Up
Payment without prejudice to its rights to review and audit the True -Up Statement. Seller
may review and audit the'True-Up Statement and the records relevant thereto within the
same time frames as applicable to Annual Statements (adjusted for the time of year that
the True -Up Statement is delivered). In addition, for avoidance of doubt, the deadlines in
paragraph (d) with respect to conducting audits shall not apply to the extent applicable . to
auditing the calculations reflected in the True -Up Statement.
(v) Safe Harbor. An Excluded Project shall not lose its status as such
by virtue of a subsequent sale or change in use so long as Buyer's City Council had made
a the good faith determination that the energy from the Excluded Project would serve the
load of the Electric System (i.e.,not be resold other than short term sales to manage
load). Any subsequent sale or change in use occurring more than five (5) years after the
designation shall be conclusively deemed not to cause an Excluded Project to lose its
status as such.
. A Countgmartv Tax-Exe=t Financing. Buyer intends to arrange
transactions with persons not, affiliated with Buyer by which Buyer Would sell or lease portions
of the Applicable Land, sell power or otherwise realize value from the Applicable Projects.
Some or all of the third parties may be eligible issuers for tax exempt obligations ("TE
Count= arti es"), If the existence of the Deferred Purchase Price in connection with any
contemplated issuance by a TE Counterparty would impair such TE Counterparty's ability to
issue tax exempt obligations to finance or refinance its Applicable Project or its Bond Counsel's
ability to issue customary legal opinions for such transaction, then Buyer shall so notify Seller.
Buyer and Seller shall explore, in consultation with TE Counterparty's Bond Counsel, whether
there are ways Buyer and Seller could modify the agreements between Buyer and Seller (such as,
but not limited to, furnishing of a deed of trust to Seller on the Applicable Land, and without
changing the economics of their agreement) that would allow such TE Counterparty to issue tax
exempt obligations and its Bond Counsel to issue such opinions. If such modification is not
feasible in the opinion of such Bond Counsel, then Buyer shall have the right to prepay the
Deferred Purchase Price with respect to the Applicable Project. Buyer shall furnish Seller all
project agreements with the TE Counterparty for such Applicable Project along with a copy of
Buyer's projections for the Applicable Project. The prepayment price shall be equal to the
Annex A-5
LM1906082.6
present value of the aggregate amount of consideration that would be paid to Seller as the
Deferred Purchase Price. ("FMV") based on Buyer's good faith projections submitted to the TE
Counterparty. Buyer shall furnish to Seller all pro formas, budgets and. cost and income
projections related to the Applicable Project and other information reasonably requested by
Seller in connection with the calculation Of FMV. Buyer shall furnish to Seller its proposal for
the, FM.V.. If Seller objects to such proposal, Seller shall, within thirty (30) days furnish to Buyer
its proposal for the FMV. If Buyer and Seller cannot agree upon the FMV, either Buyer or Seller
may give notice to the other to initiate resolution of the disagreement or dispute (a "FMV
Dispute") pursuant to the Baseball Arbitration process under paragraph (g) below.
(e) Books and Records/Audii Rights. Buyer shall keep accurate and detailed
books and records regarding all of the elements . required for the calculation of the Deferred
Purchase Price in accordance with customary practices for municipalities. Seller shall have the
right to inspect, copy and/or audit the records of Buyer relating to the computation of the
Adjusted Cash Position. Any such audit shall take place on r . easonable advance notice during
normal business hours at the offices of Buyer. No such audit or examination ray commence
after, the January 31 following the fiscal year end in question unless a subsequent audit of
subsequent fiscal years uncover . s an underpayment to Seller of more than $50,000 that could
reasonably suggest an issue with respect to prior years. Buyer and Seller shall cooperate with
each other to seek to resolve any audit issues promptly, and in any event within four (4) months.
If as a result of any audit, including any negotiation or arbitration regarding same any additional
sum is owing: (a) from Buyer to Seller, Buyer shall pay to Seller such additional sum within
fifteen (15) days following resolution, together with interest from applicable fiscal year end at
the rate of ten percent (10%) per a h n-um except as provided below or (b) from Seller to Buyer as
a result of a prior. overpayment by Buyer, then Sell I er shall refund to Buyer without interest the
amount of such overpayment within fifteen (15) days following resolution. The. fees and
expenses of such audit shall be paid by Seller, unless the amount of the underpayment to Seller
as determined by the audit was an amount equal to more than three percent (3%) of the payment
actually made, in which event the fees and expenses of such audit shall be paid by Buyer. If
there is an identified dispute (either prior to or . after an audit) about whether a given amount of
money is owing or not to Seller under this Annex A, Buyer may deposit such amount in an
segregated interest bearing account, in which event (and in lieu of a ten percent (10%) per annum
rate) the earnings on that account shall inure to Buyer and/or Seller in the same proportions as
Buyer and/or Seller ultimately receive of the disputed amount.
FairAllocation. Seller acknowledges that Buyer has informed it that any
transaction Buyer may enter into with respect to the Applicable Land ("Included Transactions")
may involve transactions relating to assets or projects other than those situated"on the Applicable
Land ("Excluded Transactions)). 'Given the importance to Seller of the Deferred Purchase Price,
Buyer acknowledges and agrees that any Included Transactions must be on . artn's-longth fair
market value terms on a stand-alone basis. Accordingly, if Buyer enter's into any Included
Transaction with the same or related . party as any Excluded Transaction, Seller shall have the
right to examine all terms and agreements of both transactions. If Seller believes that the terms
of the Included Transaction are not ann's-length, fair market value terms on a stand-Wone basis,
then Seller shall deliver to Buyer, not later than ninety (90) days after Buyer's notice to Seller of
the included Transaction, a detailed proposal of what Seller believes would be arm.'s-length, fair
market value terms on a stand-alone basis for the Included Transaction and the reasons therefor.
Annex A-6
LA\ 1906082.6
Buyer and Seller shall e ' nter into negotiations regarding the same and, if necessary, resolve the
matter through the baseball arbitration process under paragraph (f) below. The resolution . of any
such disagreement or dispute (a "Fair Allocation Dispute") shall affect only the calculation of the
Deferred Purchase Price and shall not affect the rights and obligations as between Buyer and the
other party to the relevant Included Transaction.and Excluded Transaction (or its lenders).
Similarly, Buyer shall make a fair allocation as between any Wind Land Projects and any Solar
Land Projects, which allocation shall also be subject to the baseball arbitration process under
paragraph (g) below. For purposes hereof, "Disput " means any Shared Costs Dispute, FMV
Dispute or Fair Allocation Dispute.
(g) Baseball Arbitration. Either Party may initiate binding arbitration with
respect.to any Dispute by making a w . ritten demand for binding arbitration before an arbitrator
that. is a former judge or attorney with experience resolving major comine'rcial disputes within
the electric industry with JAMS, its successor or any other mutually agreeable arbitrator (the
"Baseball Arbitrator"). The Parties shall cooperate with one another in promptly selecting the
Baseball Arbitrator and in scheduling the arbitration to co
nimence no later than ninety (90) days
from the date of the initial written demand for binding arbitration. If, notwithstanding their good
faith efforts, the Parties are unable to agree upon a mutually acceptable Baseball Arbitrator, the
Baseball Arbitrator shall be appointed as provided for in California Code of Civil Procedure
Section 1281.6. Upon �either Party's written demand for binding arbitration, such Dispute,
including the determination of the scope or applicability of this agreement to arbitrate, shall be
determined by binding arbitration before the Baseball Arbitrator, in accordance with the laws of
the State of California, without regard to principles of conflicts of laws. Except as provided for
herein, the arbitration shall be conducted by the Baseball Arbitrator in accordance with the rules
and procedures for arbitration of complex business disputes for the organization with which the
Baseball Arbitrator is l,associated,,and in accordance with the following:
(a) At least fourteen (14) business days prior. to the Hearing (as
defined below), each, Party shall submit to the Baseball Arbitrator (X) in the,. case of any
Shared Costs Dispute, a detailed proposal of what such Party believes would be a fair
allocation of the shared costs for the relevant Excluded Projects and the relevant
Applicable Projects, together with all underlying backup data supporting such proposal;
(Y) in the case of any FMV Dispute, a detailed proposal for t ' he FMV, together with all
underlying backup data supporting such proposal; and (Z) in the case of any Fair
Allocation Dispute, a detailed proposal of what such Party believes would be arm's-
length, fair market value terms on a stand-alone basis for thee Included Transaction and
the reasons therefor, together with all underlying backup data supporting such
proposal,
and such Party's resulting calculation of, the proper Deferred Purchase Price (any
proposal described in clauses (X), (Y) or (Z), a "Party Proposal"). Each Party Proposal
may not be ievised or retracted following the delivery thereof. The Baseball Arbitrator
shall provide each Party a copy of the other Party's Party Proposal no later than ten (1 0)
days prior to the Hearing (or such shorter period as is reasonably agreed to by the Parties
given the circumstances at the time of the arbitration).
(b) Notwithstandin the rules and rocedures that would otherwise
9 p
apply to the arbitration, and unless the Parties agree to a different arrangement, the place
of the arbitration shall be in Los Angeles County, California.
Annex A-7
LA\1906082.6
(c) All direct testimony in the arbitration shall be submitted in the
fori-n. of affidavits or declarations under penalty of perjury.
(d) Each Party shall cooperate in making available for cross-
examination at the arbitration hearing (the "Hearing") its witnesses whose direct
testimony has been so submitted.
(e) Following the Hearing, the Baseball Arbitrator shall, as an
arbitration award, select one Party's Party Proposal or the other, and shall have no
authority to compromise or award something in between the two Party Proposals.
Judgment on the award may be entered in any court havi
ing
jurisdiction.
(g) The Baseball Arbitratorshall, in any award, allocate all of the costs
of the binding arbitration (other than each Party's individual attorneys' fees and costs
related to such Party's participation in the arbitration, which fees and costs shall be borne
by such Party), including the fees of the Baseball Arbitrator, to the Party , whose Party
Proposal was not selected. Until such award is made, however,the Parties shall share
equally in paying the. costs of the arbitration.
(h) No Obligation to Undertake Pro - jects. Nothing in this Annex A obligates
Buyer to undertake any projects. Moreover, nothing in this Annex A recludes Buyer from
p i
taking actions (such as dedicating land for recreation or, conservation) that arguably may not be
intended to maximize profits.
(i) Termination gpon Sale by Buyer. For avoidance of doubt, the obligations
under this Annex A shall terminate with respect to any interest in the Applicable Land or
Applicable Projects sold or otherwise transferred by Buyer to' any entity not controlled by or
related to Buyer and shall not be an obligation of any such buyer or transferee.
0) Separate Calculation. The Deferred Purchase Price shall be separately
calculated for each of the Wind Landand the Solar Land so that Project Costs and Receipts shall
not be aggregated, and there shall be no Project Costs or Receipts that are double counted
between the Wind Land, the Solar Land and/or any other projects.
Annex A-8
LA\1906082.6
EXHIBIT A
DESCRIPTION OF WIND LAND
Parcel 1: (APN: 153-120-10 & 11)
The East half, Lots I and 2 of the Northwest quarter, and Lots I and 2 of the Southwest quarter of
Fracti onal Section 3 1, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 2: (APN: 153-110-04)
Section 36, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Exc' ept all oil, gas, oil shale, coal, phosphate, sodium, gold, silver and,all other mineral -deposits contained
in said. land, and further reserving to the State of California and persons authorized by the State, the right
to drill for and extract such deposit
s of oil and gas, or gas, and to prospect for, mine and remove such
deposits of other minerals from said land and to occupy and use so much of the surface of said land as
may be required therefore, upon compliance with the conditions and subject to the provisions and
limitations of Chapter 5, Part 1, Division 6 of the Public Resources Code, as reserved in Patent recorded
June 10, 1958 in Book 2962, Page(s) 503 of Official Records.
Parcel 3: (APN: 153-110-05)
Section 35, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 4: (APN: 153-180-09)
The East half of Fraction al Section 31, Township 29 South, Range 36 East, Mount Diablo Base,and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 5: (APN: 153480-110)
The West half of Fractional Section 3 1, Township 29 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 6: (APN: 181-190-1.4)
The East half of Fractional Section 3 1, Township 30 South, Range 3 8 East, Mount Diablo Base and
Meridian, in the tin -incorporated area, County of Kem, State of California, according to the Official Plat
thereof.
Parcel 7: (APN: 181-190-15)
The West half of Fractional Section 3 1, Township 30 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Exhibit A -I
LA\1906082.6
1
Parcel 8: (APN: 181-190-16)
Fractional, Section 36, Township 30 South, Range 36 V2East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according t& the Official Plat thereof.
Except all oil, gas, oil shale, coal, phosphate, sodium, gold, silver and all other mineral deposits contained
in said land, and further reserving to the State of California and persons authorized by the State, the right
to. drill for and extract such deposit ' s of oil and gas, 'or gas, and to prospect for, mine and remove such
deposits of other minerals from said land and to occupy and use so much of the surface of said land as
ma I y be required therefor, upon compliance with the conditions and subject to the provisions and
limitations of Chapter 5, Part 1, Division 6 of the Public Resources Code, as reserved in Patent recorded
July 29, 1959 in Book 3170, Page(s) 179 of Official Records.
Parcel 9: (APN: 442-010-07)
Section 11, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Except an undivided V2 interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.C. Walser, also known as John Caswell Walser and Blanche Walser, husband and wife as
joint tenants, in Deed recorded July 9, 1937 in Book 73 1, Page(s) 490 of Official Records.
Parcel 10: (APN: 442-010-04)
Fractional Section 1, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 11: (APN: 44.2-010-02)
The South -half of the South half of Fractional Section 2, Township 30 South, Range , 34 East, Mount
Diablo Base and Meridian, in the un-incorpo-rated area, County of Kern, State of California, according to
the Official Plat thereof.
Except an undivided V2 interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.C. Walser, also known as John Caswell Walser and Blanche Walser, husband and wife as
joint tenants, in Deed recorded July 9; 1937 in Book 73 1, Page(s) 490 of Official Records.
Parcel 12: (APN: 442-030-05)
Section 13, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem,. State of California, according to the Official Plat thereof.
Parcel 13: (APN: 442-030-03)
Section 14, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Except all the coal and other minerals in the land so patented together with the right to prospect for, mine
and remove the same pursuant to the provisions and limitations of the Act of December .29, 1916 (Stat.
Exhibit A-2
LA\1906082.6
862) as reserved by the United States of America in the Patent recorded December 24, 1923 in Book 22,
Page(s) 19 of Official Records.
Parcel 14: (APN: 443-010-02)
Section 23, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 15: (APN: 444-010-01)
Fractional Section 3, Township 3.0 South, Range �5.East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 16: (APN: 444-010-04)
Lots 1 and 2 of the Northeast quarter, the South half of the Northeast quarter; and the Southeast quarter,
of Fractional Section 2, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 17: (APN: 444-020-16)
Fractional Section 7, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 18: (APN: 444-020-14)
The North half of the North half of Section 8, Township 30 South., Range 35 East, Mount -Diablo Base
and Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official
Plat thereof.
Except and reserving to the United States, pursuant to the provisions of the Act of August 1, 1946 (60
Stat. 755), all uranium, thorium or any other ma
terials which is. or may be determined to be peculiarly
essential to the production, of fissionable materials, whether or not of commercial value, together with the
right of the United States through it's authorized agents or representatives at any time to enter upon the
lands and prospect for, inine and remove the same as reserved in the Patent from the United States of
America, recorded April 27, 1949 in Book 1612, Page(s) 130 of Official Records. I
Parcel 19: (APN: 444-020-03)
Fractional Section 5, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County, of Kern, State of California, according to the Official Plat thereof.
Parcel 20: (APN: 444-020-09)
The West half of the Northeast quarter, the Southwest quarter of the Southeast quarter, and the West half
of Section 9, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Exhibit A-3
LA\1906082.6
Parcel 21: (APN: 444-010-13)
The North half of the Northeast quarter,'the Southwest quarter of the Northeast quarter, the Southeast
quarter of the Northwest quarter, the West half of the Southeast quarter, and the East half of the
Southwest quarter, of Section 10, Township 30 South, Range 35 East, Mount Diablo Base and Meridian,
in the un-incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 22: (APN: 444-030-06)
The East half of the Southeast quarter, the Southwest quarter of the Southeast quarter of Section 14,
Township 30 South, Range 35 East, Mount Diablo Base and Meridian, i . n the un-incorporated area,
County of Kern, State of California, according to the Official Plat thereof.
Parcel 23: (APN: 444-010-10)
Section 11, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 24: (APN: 444-030-01)
Section 15 ' Township 3 0 South, Range 35 East, Mount Diablo Base -and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 25: (APN: 444-030-08)
Section 13, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
Area County of Kem, State of California, according to the Official Plat thereof.
Parcel 26: (APN: 444-040-02)
Section 17, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 27: (APN: 444-040-09, 11 and 13)
The West half of the Northeast quarter, the East half of the Northeast quarter, the North h alf of the
Southeast quarter, the South half of the Southeast quarter, and the Southwest quarter of Section 16,
Township 30 South, Range 35. East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kem, State of California, according to the Official Plat thereof.
Parcel 28: (APN: 444-040-15)
Section 2 1, Township 30 South, Range 35 East, Mount Diablo Base and Meridian� in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 29: (APN: 444-030-11)
Section 23, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Exhibit A-4
LA\1906082.6
Parcel 30: (APN: 444-060-05)
The North half of Section 28, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in
the un-incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 31: (APN: 444-070-01 & 02)
Fractional Section 3, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 32: (APN: 444-080-05)
The North half of Fractional Section 5, Township 30 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 33:,(APN: 444-080-06)
The South half of Fractional Section 5, Township 30 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 34: (APN: 444-080-11)
The West half, and the Southwest quarter of the Southeast quarter of Section 8, Township 30 South,
Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern, State of
California, according to the Official Plat thereof.
Parcel 35: (APN: 444-080-09)
Section,9, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorp'orated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 36: (APN: 444-080-01 & 02)
Fractional Section 6, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 37: (APN: 444-080-13 & 15)
Fractional Section 7, Township 30, South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 38: (APN: 444-090-01)
Section 15, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Exhibit A-5
LAU906082.6
Parcel 39: (APN: 444-100-04)
The West half, the West half of the Northeast quarter, the Southeast quarter of the Northeast quarter, and
the Southeast quarter, of Section 16, Township 30 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 40: (APN: 444-100-02)
Section 17, Townsl-dp 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 41: (APN 444-100-07)
S ection. 2 1, Township 3 0 South, Range 3 6 East,. Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel, 42: (APN: 444-100-10 & 11)
Fractional Section 19, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of Ca lifornia, according to the Official Plat thereof.
Parcel 43: (APN: 444-090-07)
Section 23, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 44: (APN: 444-110-03)
Section'25,,Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 200 feet wide granted to the City of Los Atigeles by the Southem Pacific Land
Company by Deed recorded March 13, 1920 in Book 346j Page(s) 421 of Deeds.
Parcel 45: (APN: 444-110-08)
Section 35, Township 30 South, Range 3 6 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 46: (APN: 444-110-06)
The North half of the Northwest quarter, the Southwest quarter of the Northwest quarter, the West half of
the Southwest quarter, the Southeast _quarter of the Southwest quarter, and the East half of Section 36,
Township 30 South, Range.36 East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kern, State of California, according to the Official Plat thereof.
Parcel 47: (APN: 443-030-16)
Section 25, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California,, according to the Official Plat thereof
Exhibit A-6
LA\1906082.6
Parcel 48: (APN: 444-010-08)
Section 12, Township N South, Range M East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 49: (APN: 444-040-18 & 19)
Fractional Section 19, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 50: (APN: 444-050-04)
Section 25, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 51: (APN: 444-050-01)
Section 27, Township 30 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area,,County of Kern, State of California, according to the Official Plat thereof.
Parcel'52: (A.PN:1444-060-03)
Section 29, Township 30 South, Range 35 East, Mount Diablo Base and. Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 53: (APN: 444-060-08)
Section 33, Township 30 South, Range 35 East, Mount Diablo Base and Meridian in the un-incorporated
area, County of Kem,. State of California, according to the Official Plat thereof.
Parcel 54: (APN: 444-1 20-06)
The Southwest quarter of Section 28, Township 30 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 55: .(APN: 444-120,02)
Section 29, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 56: (APN: 444-010-06)
Fractional Section 1, Township 30'South, Range 35 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Exhibit A-7
LA\1906082.6
EXHIBIT A- I
DESCR1PTION OF SOUTHERN RUDNIck PROPERTY
EASTERN SOLAR LAND
Parcef-1: (APN 153-140-05)
Section 9, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the unincorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 2: (APN: 153-140-07)
The East half of Fractional Section 7, Township 29 South, Range 3 6 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of California, according to the Official Plat
thereof.
Parcel 3: (APN: 153-140-08)
The. West half of Fractional Section 7, Township 29 South, Range 36 East, Mouht Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State 1 ,
of California, according to the Official Plat
thereof.
Parcel.4: -(APN: 153-130-05)
Section 11, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 5: (APN: 153-150-02)
The Northeast quarter, the East half of the Northwest. quarter, the Northwest quarter of the Northwest
quarter, the North half of the Southeast quarter, and the Southeast quarter of the Southeast quarter of
Section 15 ' Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 6: (APN: 153-150-04)
Section 13, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 7: (APN: 153-160-02)
Section 17, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 8: (APN: 153-160-06)
The Northeast quarter, the Northeast quarter of the Southeast quarter, the Northeast quarter of the
Northwest quarter, and Lots I and 2, of Fractional Section 19, Township 29 South, Range 36 East, Mount
Diablo Base and Meridian, in the un-incorporated area, County,of Kem, State of California, according to
the Official Plat thereof.
Exhibit A- I -I
LA\1906082.6
Parcel 9: (APN: 153-1160-04),,
Section 21, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 10: (APN-. 153-150-06)
The East half of the East half, the Southwest quarter of the Southeast quarter, and the South half of the
Southwest quarter, of Section 23, Township 29 South, Range 36 East, Mount Diablo Base and Meridian,
in the un-incorporated area, County of Kern, State of California, according to the Official Plat thereof,
Parcel 11: (APN: 153-170-03)
Section 25, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 12: (APN: 153-170-04)
The Northwest quarter of the Northwest quarter, the East half of the Northwest quarter, the Northeast
quarter, and the South half of Section 36, Township 29 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of Califo 'a, according to the Official Plat
rnI
thereof.
Except all oil, gas, oil shale, coal, phosphate, sodium, gold, silver and all other mineral deposits contained
in said land, and further reserving to the State of California and persons authorized by the State, the right
to drill for and extract such deposits Of oil and gas, or gas, and to prospect for, mine and remove such
deposits of other minerals from said land and to occupy and use so much of the surface of said land as
may be required therefor, upon compliance with the conditions and subject to the provisions and
limitations of Chapter 5, Part 1, Division 6 of the Public Resources Code, as reserved in Patent recorded
June 10, 1958 in Book 2962, Page(s) 503 of Official Records.
Parcel 13: (APN: 153-240-14)
The Southwest quarter of Section 29, Township 29 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Excepta. strip of land 200 feet wide granted, to the City of Los Angeles, by Deed recorded March 13, 1920
in Book 346, Page(s) 421 of Deeds.
Also except that portion of said Southwest quarter, granted to the City of Los Angeles by Deed recorded
September 20, 1973, in Book 4804, Page(s) 2459 of Official Records.
Parcel 14: (APN: 153-240-12)
Section 3 1, Township 29 South, Range 37 East, Mount Diablo. Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 200 feet wide granted to the City of Los Angeles, by Deed recorded March 13,
1920, in Book 346, Page(s) 421 of Deeds.
Exhibit A- 1 -2
LA\1906082.6
Also except.that portion of said section, granted to the City of Los Angeles by Deed r corded September
ec
20, 1973 in Book 4804, Page(s) 2459 of Official Records.
Parcel 15: (APN: 153-240-16)
The South half of the Northwest quarter, the Southwest quarter of the Northeast quarter, the West half of
the Southeast quarter, and the Southwest quarter, of Fractional Section 33, Township 29 _ South, Range 37
East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kdm, State of Califorriia,
according to the Official Plat thereof.
Except a strip of land 250 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official Records.
Parcel 16:.(APN: 181-020-02)
Fractional Section. 5, Township 30 South, Range 37 East, Mount Diablo Base and- Meridian, in the un-
incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 17: (APN: 181-020-13)
Fractional Section 9, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 250 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official Records.
Parcel 18: (APN 444-070-05) .
The North half, and the Southwest quarter of Fractional Section 1, Township 30 S outh, Range 36 East,
Mount Diablo Base and Meridian, in the unincorporated area, County of Kem, State of California,
according, to the Official Plat thereof.
WESTERN SOLAR LAND
Parcel 19: (APN: 153-070-02)
Lots 1 and 2 of the Northeast quarter, the East half of Lot 2 of the Northwest quarter, the North half of the
Southeast quarter, and the Southeast quarter of the Southeast quarter, of Fractional Section 3, Township
29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of California, according to the Official Plat thereof,
Parcel 20: (APN: 153-070-03)
The Southwest quarter of the Southwest quarter of Fractional Section 3, Township 29 South, Range 35
East, Mount Diablo Base and Meridian, in the un-incorporated area,. County of Kern, State of California,
according to the Official Plat thereof.
Parcel 24: (APN: 153-070-07)
Section 11, Township 29 South, Range 35 East, Mount, Diablo Base. and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat'thereof.
Exhibit A- 1 -3
LA\1906082.6
Parcel 22: (APN: 153-080-08)
Lots I and 2 of the Northeast quarter, and the Southeast quarter of Fractional Section 5, Township 29
South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of California, according to the Official Plat thereof.
Parcel 23: (APN: 153-080-02)
Lots I and 2 of the Northwest quarter, and the Southwest quarter of Fractional Section 5, Township 29
South, Range 35 East, Mount Diablo Base and Meridian, in the wi-incorporated area, County of Kern,
State of Califon-da, according to the Official Plat thereof.
Parcel 24: (APN: 153-080-05)
The Southeast quarter of Section 8, Township 29 South, Range 35 East, Mount Diablo Base and
Meridian, in the.un-incorporated area, County of Kern, State of California, according to the OfficialPlat
thereof.
Parcel 25: (APN: 153-080-04)
Section 9, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-.incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 26: (APN: 153-090-01) A
Section 15, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 27: (APN: 153-090-03)
Section 13, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of Califorruia, according to the Official Plat thereof.
Parcel 28:.(APN: 153400-03)
Section 17, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 29: (APN: 153-100-10)
Section 21, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 30: (APN: 153-090-05)
Section 23, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 31: (APN: 153-110-03)
Exhibit A- 1 -4
LA\1906082.6
Section 25, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 32: (APN: 153-110-01)
Section 27, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 33: (APN: 153-120-02)
Section 29, Township .29 South, Range 35. East, Mount Diablo Base and Meridian, in the un- I incorpora ed
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 34: (APN: 153-120-04)
The North half of the Northeast quarter, and the Northeast quarter of the Northwest quarter of Section 28,
Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kern, State of California, according to the Official Plat thereof.
Parcel 35: (APN: 153-120-07)
The East half of the Northeast quarter, the Northwest quarter of the Northeast quarter, the East half of the
Southeast quarter, and the West half of Section 33, Township 29 South, Range 35 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kern, State of California, according to the
Official Plat thereof.
EASEMENT PARCELS
Parcel 36: (APN: 153-170-01)
Section 27, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 37: (APN: 153-180-12)
The East half of the Southeast quarter of Section 28, Township 29 South, Range 36 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kern, State of California, according to the
Official Plat thereof.
Except 1/ 1 6fl", of all coal, oil, gas and other mineral. deposits contained in said lands as reserved by an Act
of the Legislature approved May 25, 192.1 (Chap. 303, Statutes, 1921), as.reserved in the State of
California, in Patent recorded March 29, 1923 in Book 484, Page(s) 42 of Official Records.
Parcel 38: (APN: 153-180-02)
The North half of the Northeast quarter of Section 29, Township 29 South, Range 36 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kern, State of California, 'according to the
Official Plat thereof
Parcel 39: (APN: 153-180-04)
Exhibit A- 1 -5
LA\1906082.6
The Southwest quarter of the Southeast quarter, and the Southwest quarte I r of Section 29, Township 29
South, Range 36 East, Mount Diablo Base and Meridian,jn the un-incorporated area, County of Kem,
State of California, according to the Official Plat thereof
Parcel 40: (APN: 153-170-06)
Fractional Section 35, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kem, State of Califoniia, according to the Official Plat thereof.
Parcel 41: (APN: 181-020-11)
Fractional Section 7, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated. area, County of Kern, State of California, according to the Official Plat thereof.
Except a strip, of land 200 feet wide, granted to the City of Los Angeles by Deed recorded March 13, 1920
in Book 346, Page(s) 421 of Deeds.
Also except that portion of said section, granted to the City of Los Angeles by Deed recorded September
20, 1973 in Book 4804, Page(s) 2459 of Official Records.
Parcel 42: (APN: 181-080-32) '
Fractional Section 17, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 200 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973 in Book 4804, Page(s) 2459 of Official Records.
Parcel 43: (APN: 181-080-11)
The East half of the Southeast quarter of the Northwest quarter, Lots 1, 2) 3 and 4, and the East half of the
Southwest quarter of Fractional Section 19, Township 30 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of California, according to the Official Plat
thereof.
Except a strip of land 200 feet wide, granted to the City of Los Angeles, by Deed recorded July 21, 1921
in Book M6, Page(s) 229 of Deeds..
Parcel 44: (APN: 191-080-30)
The North half of the Northeast quarter, the Southwest quarter. of the Northeast quarter, the Northwest
quarter, and the South half of Section 21, Township 30 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area,.County of Kem, State of California, according to the Official Plat
thereof.
Except a strip of land 250 feet wide, granted to the City of Los Angeles, by Deed. recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official Records.
Also except a strip of land 200 feet wide as granted to the City of Los Angeles by Deed recorded
September 20, 1973 in Book 4804, Page(s) 2459 of Official Records.
Exhibit A- 1 -6
LAU906082.6
Parcel 45:.(APN: 181-190-02)
The Northwest quarter and the South half of Section 2.9, Township 30 South, Range 37 East, Mount
Diablo Base and Meridian, in the un-incorporated area, County of Kom, State ofCalifornia, according to
the Official Plat thereof.
Parcel 46,: (APN: 442-020-20)
Section 9, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof,
Except an undivided V2interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.0 .. Walser, also known as John Caswell Walser and BlancheWalser, husband and wife as
joint tenants, in Deed recorded July 9, 1937 in' Book 73 1, Page(s) 490 of Offic I ial Records.
Parcel 47: (APN: 442-010-10)
The South half of the South half of Section 10, Township 30 South, Range 34 East, Mount Diablo Base
and Meridian, in the un-imorporated area, County of Kom, State of California, according to the Official
Plat thereof.
Except an undivided '/:z interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.C. Walser, also known as John Caswell Walser and Blanche Walser, husband and wife as
joint tenants, in Deed recorded July 9, 1937 in Book 73 1, Page(s) 490 of Official Records.
Parcel 48: (APN: 442-030-01)
Section 15, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof
Parcel 49: (APN: 442-040-01)
The West half of the Southeast quarter,. and the East half of the Southwest quarter of Section 18,
Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kem, State of California, according to the Official. Plat thereof.
Parcel 50: (APN: 444-070-09)
Section 11, Townsl-dp 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of Californiai according'to the Official Plat thereof.
Parcel 51: (APN: 444-090-04)
Section 13, Township 30 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area., County of Kern, State of California, according to the Official Plat thereof.
Parcel 52: (APN 153-051-03)
Section 25, Township 29 South, Range .34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official, Plat thereof.
Exhibit A- 1 -7
LA\1906082.6
Parcel 53: (APN 153-070-05)
Lots l,2,3,4,5,6,7,8,9, 10 and 11, the Southwest quarter of the Northeast quarter,; the West half of the
Southeast quarter, and the Southwest quarter of Fractional Section 1, Township 29 south, Range 35 East,
Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern, State of California,
according to the Official Plat thereof.
Parcel 54: (APN 153-100-13)
The East half of Section 19,- Lotl of the Northwest quarter, the North Half of Lot 2 of the Northwest
quarter; and Lots I and 2 of the Southwest quarter of FrActional Section 19, Township 29 South, Range
35 East, Mount Diablo base and Meridian, in the un-incorporated area, County of Kern, State of
California, according to the Official Plat thereof.
Parcel 55; (APN 153-130-03)
Fractional Section 1, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorpor ated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 56: (APN 153-030-05)
Section 13, Township 29 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 57: (APN 153-130-01)
Fractional Section 3, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of Califomia, according to the Official Plat thereof.
Exhibit A- I - 8
LA\1906082.6
EXHIBIT B
LIST OF MINERAL, ENERGY AND OTHER LEASES.
Mineral Extraction Lease dated September 29, 2003, by and between Carlton Global Resources,
LLC, a Delaware limited liability company, as lessee, and Seller, as lessor, as the same has been
amended, restated, supplemented or otherwise modified prior to.the Effective Date.
Exhibit B- I
LA\1906082.6
EXHIBIT C
. FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO,
AND SEND TAX STATEMENTS TO:
The City of Vernon
43 05 Santa Fe Avenue
Vernon, California 90058
Attention: Jeff Harrison, Esq.,
City Attorney
(Space Above This Line For Recorder's Use Only)
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the California Revenue and
Taxation Code, as amended
APNs: See Exhibit A
GRANT DEED
FOR VALUE RECEIVED, ReNu RESOURCES, LLC, a Delaware limited liability
company ("Granto "), hereby grants to the CITY OF VERNON, a California chartered city
("Grantee"), all of its right, title and interest in and to the following property:
(a) that certain real property situated in the County of Kern, State of
California, described on. Exhibit A attached hereto and by this reference incorporated
herein (the "Wind Land"), subject to all matters of record and s�ibject to the reservations
described on Exhibit A.
� (b) the buildings, structures, fixtures and other improvements, if any, affixed
to or located on the Wind Land.
(c) except for, the Excluded Mineral Rights (as defined below), all oil, gas and
other hydrocarbon substances or other mineral rights. on and under the Wind Land.
(d) except for the Excluded Subsurface Water (as defined below), all water,
water stock and water rights on and under the Wind Land.
(e) all rights, easements and rights -of -way appurtenant to, or used in
connection with, the beneficial use and enjoyment of the Wind Land.
"Excluded Mineral Rights" means all rights to minerals located 500 feet or more below
the surface of the Wind Land; provided, however, that Grantor hereby grants Grantee, and the
Excluded Mineral Rights and the Excluded Subsurface Water (as defined below) shall not
Exhibit C- I
LA\1906082.6
include, the right to use whatever geological features, if any, in or under the Wind Land that are
useful for the storage of compressed gasses and designated from time to time by Grantee.
"Excluded Subsurface Water" means all rights to any subsurface water located 500 feet
or;more below the surface of the Wind Land to the extent such water is in excess of any
subsurface water to be used by Grantee (or its successors and assigns) on or adjacent to the Wind
Land.
[signature page follows]
Exhibit C2
LA\1906082.6
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed dated as
of October 2008.
ReNu RESOURCES, LLC,
.a Delaware limited liability
By:
Name:
Title:
Exhibit C3
LA\1906082.6
State of California
County of
On before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrunient the
upon behalf person(s), or the entity
of which the person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Exhibit C4
LA\1906082.6
EXHLBIT A
TO
GRANT DEED
LEGAL DESCRIPTION
[see attached]
Exhibit C5
LA\1906082.6
SEPARATE STATEMENT OF DOCUMENTARYTRANSFER TAX
Document No.
Recorded October —, 2008
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT REC
ORD IN THE OFFICE OF THE
COUNTY RECORDER (PURSUANT TO SECTION
11932 REVENUE AND TAXATION CODE)
TO: Recorder
County of Kern
Request is hereby made in accordance with the provisions of the Documentary
Transfer Tax Act that the amount of the tax due not be shown on the origi
nal documentwhich
names:
Grantor: ReNu RESOURCES, LLC, a Delaware limited liability company
,Grantee: CITY OF VERNON, a California chartered city
The property described in the accompanying document is located in the County of
Kern, State of California.
The amount of. tax due the County of Kern on the accompanying document is
—X— Computed on full value of property conveyed,
OR
Computed on full value, less liens and
encumbrances remaining, at the time of sale.
ReNu RESOURCES, LLC,
a Delaware limited liability
By:_
Name: -
Title:
Exhibit C6
LA\1906082.6
EXHIBIT D
PROPERTY DOCUMENTS
I Preliminary wind development report by Sandbar Explorations, dated November 4, 2007
2. Follow-up wind development report prepared by V-bar Explorations, dated August 16,
2008
3. Transmission report prepared by PDS Consulting and TOR Engineers, dated August 21,
2008
4. Critical issues report prepared by EDAW, dated August 13, 2008
5. Final Phase I and Il environmental report, dated September 29, 2008
Exhibit D- I
LA\1906082.6
EXHIBIT E
FORM OF ESTOPPEL CERTIFICATE
[see attached]
Exhibit E- I
LA\1906082.6
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EXHIBIT F
FORM OF ASSIGNMENT
ASSIGNMENT
This instrument is executed and delivered to be effective as of October —, 2008, by and
between ReNu RESOURCES, LLC, a Delaware. limited liability company ("ie—fler"), and the
CITY OF VERNON, a California chartered city ("Buyer"), covering the real property described
in Exhibit A attached hereto Real Property".). Capitalized terms used herein and not otherwise
defined herein have the meanings provided them in that certain Amended and Restated Purchase
Agreement and Sale Agreement and Joint Escrow Instructions dated as of October 8, 2008, by
and between Seller and Buyer (the "Purchase Agreement").
I . Assignment. For good and valuable consideration, Seller hereby assigns,
transfers, sets over and conveys to Buyer the following. property:
(a) all of Seller's right, title and interest in and to the leases ("Leases") and
security deposits ("Security Deposits") described in Exhibit B attached hereto relating to
the Real Property;
(b) all of Seller's rights, remedies, privileges and claims ("Rights an
Remedies") with respect to the contracts described in Exhibit C attached hereto (the
"Contracts") to the extent the Rights and Remedies relate to any real or person property
acquired thereunder and acquired by Buyer pursuant to the Purchase Agr . eement,
including, without limitation: (i) any right Seller may have to indemnification under the
Contracts; and (ii) Seller's Rights and Remedies with respect to any breach by any other
party to the Contracts of its representations, warranties or covenants thereunder; and
. (c) all of Seller's right, title and interest in and to (i) all certificates of
occupancy and governmental licenses and pen -nits relating to: the Wind Property, . if any,
(ii) all contracts and/or agreements, if any, relating to. (1) the management, upkeep,
repair, maintenance or operation of the Wind Property and/or (2) the design, construction,
rehabilitation and/or modification of the improvements or any portion thereof (including,
without limitation, (x) any rights of Seller to proceed against contractors, architects,
engineers and, consultants (and any of their respective insurers under "additional insured"
endorsements or otherwise), and (y) any causes of action accruing against any.of the
foregoing prior to Closing, in each case in connection with any defects in the WL
Improvements or otherwise), and (iii) construction and equipment warranties and
guarantees, if any.
Buyer hereby accepts such assignt-neAt. of the Leases and hereby assumes and agrees to be bound
by and to perform, as of the date hereof, Seller's obligations, covenants and agreements under
the Leases accruing on or after the date hereof (but specifically excluding any assumpt
ion of any
pre-existing defaults that continue to remain uncured)i and Buyer further assumes all liability of
Seller for the proper refund or return of the Security Deposits if, when, and as required by the
Exhibit F-1
LA\1906082.6
terms oNhe Leases or otherwise by law. Buyer hereby accepts the assignment of Rights and
Remedies, and the property described in clause (c), with the understanding that Buyer does not
assume, and Seller does not assign, any of Seller's obligations, liabilities, covenants or
agreements under the Contracts, or the contracts and or agreements described in clause (c).
2. Successors and Assijzns. This instrument i's binding upon, and shall inure to the
benefit of Seller and Buyer and their respective heirs, legal representatives, successors and
assigns.
3. Power and Authority. Each of Buyer and Seller represents and warrants to the
other that it is fully empowered and authorized to execute and deliver this instrument, and that
the individual signing this instrument on its behalf is fully empowered and authorized to do so.
[signature page follows]
Exhibit F-2
LA\1906082.6
IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed
effective as of the date written above.
SELLER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By: _
Name:
Title:
BUYER:
CITY OF VERNON,
a California chartered city
By: _
Name:
Title:
ATTEST:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
-Exhibit F-3
LA\1906082.6
EXHIBIT A
TO
ASSIGNMENT
DESCRIPTION OF REAL PROPERTY
[see attached]
Exhibit F-4
LA\1906082.6
EXHIBIT B
TO
ASSIGNMENT
LEASES
Mineral Extraction Lease dated September 29, 2003, by and between Carlton Global Resources,
LLC, a Delaware limited liability company, as lessee, and Seller, as lessor, as the s dme has been
amended, restated, supplemented or otherwise modified prior to the Effective Date.
Exhibit F-5
LA\1906082.6
EXHIBIT C
. TO
ASSIGNMENT
CONTRACTS
1. Purchase and Sale Agreement and Joint Escrow Instructions executed as of February 4,
2008, by and between Rudnick Estates Trust, Oscar Rudnick Trustee, and Seller, as amended,
supplemented or otherwise modified pursuant to (i) that certain First Amendment of Purchase
and Sale Agreement and Joint Escrow Instructions executed as of July 30, . 2008, (ii) that certain
Second Amendment of Purchase and Sale Agreement and Joint Escrow Instructions executed as
of September 2, 2008, (iii) that certain Third Amendment of Purchase and Sale Agreement and
Joint Escrow Instructions executed as of September 4, 2008, (iv) that certain Fourth Amendment
of Purchase and Sale Agreement and Joint E.scrow Instructions executed as of Septe I mber 10,
2008, (v) that certain Fifth Amendment of Purchase and Sale Agreement and Joint Escrow
Instructions executed as of September 19, 2008, (vi) that certain Sixth Amendment of Purchase
and Sale Agreement and Joint Escrow Instructions executed as of September 26, 2008, (vii) that
certain Seventh Amendment of Purchase and Sale Agreement and Joint Escrow Instructions
executed as of September 26, 2008, and (viii) that certain Eighth Amendment of Purchase and
Sale Agreement and Joint Escrow Instructions executed as of October 2, 2008 (as so amended,
the "Rudnick Purchase Agreemen
2. Estoppel Letter executed by Carlton Global Resources, LLC,. a Delaware limited liability
company, and delivered to Seller in connection with the closing under the Rudnick Purchase
Agreement.
Exhibit F-6
LA\1906082.6
EXHIBIT G
FORM OF NOTICE TO TENANTS
[Seller's Letterhead]
October_, 2008
Carlton Global Resources, LLC
1940 Albany Street
Tehachapi, California 93561
Attention: Kevin Tack
Re: Onyx Ranch (the "Prope ")
Ladies and Gentlemen:
With reference to your lease of a portion of the Property and certain BLM mining
claims, pursuant to that certain Mineral Extraction Lease dated September 29, 200.3 (as amended
pri or to thedate hereof, the "Lease"), please be advised that ReNu Resources, LLC, a Delaware
limited liability company ("5eller"), has this day sold and transferred the Property and its interest
in the Lease to the City of Vernon, a California chartered city ("Buye
Until you receive further notice from Buyer, all rent checks and other payments
under the Lease should henceforth be made payable to Buyer and mailed or delivered to its office
at the following address:
The City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attention: Rory Burnett, Director of Finance
All notices to the landlord under the Lease should also be addressed to Buyer at the foregoing
address.
Very truly yours,
SE LLER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By:_
Name,
Title:
Exhibit G-1
LA\1906082.6'
EXHIBIT H
DISCLOSED CONDITIONS
Findings and recommendations of Kennedy/Jenks Consultants in its Phase I Envirom-nental Site
Assessment and Limited Phase 11 Soil Investigation, Kelso Valley Wind, Kern County,
California dated September 29, 2008, prepared for Western Development & Storage.
Exhibit H- I
LA\1 906082.6
1
EXHIBIT I
DESCRIPTION OF ELIGIBLE EASTERN SOLAR LAND
Parcel 1: (APN 153-140-05)
Section 9, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the unincorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 2: (APN: 153-140-07)
The East half of Fractional Section 7, Township 29 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 3: (APN: 153-140-08)
The West half of Fractional Section 7, Township 29 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of Califormia, according to the Official Plat
thereof.
Parcel 4: (APN: 153-130-05)
Section 11, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 5: (APN: 153-450-02)
The Northeast quarter, the East half of the Northwest quarter, the Northwest quarter of the Northwest
quarter, the North half of the Southeast quarter, and the Southeast quarter of the Southeast quarter,of
Section 15, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated.
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 6: (APN: 153-150-04)
Section 13 ' Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 7: (APN: 153-160-02)
Section 17, Township 29.South, Range 36 East, Mount Diablo Base and Meridia�, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 8: (APN� 153-460-06)
The Northeast quarter, the Northeast quarter of the Southeast quarter, the Northeast quarter of . the
Northwest quarter, and Lots I and 2, of Fractional Section 19, Township 29 South, Range 36 East, Mount
Diablo Base and Meridian, in the un-incorporated area, County of Kem, State of California, according to
the Official Plat thereof.
Exhibit 1-1
LA\1906082.6
Parcel 9: (AFN: 153-160-04)
Section 21, Township 20 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 10: (AFN: 153-1150-06)
The East half of the East half, the Southwest quarter of the Southeast quarter, and the South half of the
Southwest quarter, of Section 23, Township 29 South, Range 36 East, Mount Diablo Base and Meridian,
in the un-incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 11: (APN: 153-170-03)
Section 25, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State, of California, according to the Official Plat thereof.
Parcel 12: (APN: 153-170-04)
The Northwest quarter of the Northwest quarter, the East half of the Northwest quarter, the Northeast
quarter, and the South half of Section 36, Township 29 South, Range 36 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Except all oil, gas, oil shale, coal, phosphate, sodium, gold, silver and all other mineral deposits contained
in said land, and further reserving to the State of California and persons authorized by the State, the right
to drill for and extract such deposits of oil and gas, or gas, and to prospect formine and remove such
deposits of other minerals from said land and to occupy and use so much of the surface of said land as
may be required therefor, upon compliance with the conditions and subject to the provisions and
limitations of Chapter 5, Part 1, Division 6 of the Public Resources Code, as reserved in Patent recorded
June 10, 1958 in Book 2962, Page(s) 503 of Official Records.
Parcel 13: (APN: 153-240-14)
The Southwest quarter of Section 29, Township 29 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of California, according to the Official Plat
thereof.
Except a strip of land 200 feet wide granted to the City'of Los Angeles, by Deed recorded March 13, 1920
in Book 346, Page(s) 421 of Deeds.
Also except that portion of said Southwest quarter, granted to the City of Los Angeles by Deed recorded
September 20, 1973, in Book 4804, Pag.e(s) 2459 of Official Records.
Parcel 14: (APN: 153-240-12)
Section 31, Township 29 South, Range 37 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 200 feet wide granted to. the City of Los Angeles, by Deed recorded March 13,
1920, in Book 346, Page(s) 421 of Deeds.
Exhibit 1-2
LA\1906082.6
Also except that portion of said section, granted to the City of Los Angeles by Deed recorded September
20, 1973 in Book 4804, Page(s) 2459 of Official Records.
Parcel 15: (APN: 153-240-16)
The South half of the Northwest quarter, the Southwest quarter of the Northeast quarter, the West half of
the Southeast quarter, and the Southwest quarter, of Fractional Section 33, Township 29 South, Range 37
East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern, State of California,
according to the Official Plat thereof.
Except a strip of land 250 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official'Records.
Parcel 16: (APN: 181-020-02)
Fractional Section 5, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 17: (APN: 181-020-13)
Fractional Section 9, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof.
Except a strip of land 250 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official Records.
Parcel 18: (APN 444-070-05)
The North half, and the Southwest quarter of Fractional Section. 1, Township 30 South, Range 36 East,
Mount Diablo Base and Meridian, in the unincorporated area, County of Kem, State of California,
according to the Official Plat thereof.
Exhibit 1-3
LA\19060816
EXHIBIT I -I
DESCRIPTION OF ELIGIBLE WESTERN SOLAR LAND
Parcel 1: (APN: 153-070-02)
Lots I and 2 of the Northeast quarter, the East half of Lot 2 of the Northwest quarter, the North half of the
Southeast quarter, and the Southeast quarter of the Southeast quarter, of Fractional Section 3, Township
29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of Califontia, according to the Official Plat thereof.
Parcel 2: (APN: 153-070-03)
The Southwest quarter of the Southwest quarter of Fractional Section 3, Township 29 South, Range 35
East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern, State of California,
according to the Official Plat thereof.
Parcel 3: (APN: 153-070-07)
Section t 1, Township 29 South, Range 35 East, Mount Diablo Base and Meridian,e in the un-incorporated
.area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 4: (APN: 153-080-08)
Lots 1 and 2 of the Northeast quarter, and the Southeast quarter of Fractional 'Section 5, Township 29
South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of California, according to the Official Plat thereof.
Parcel 5: (APN: 153-080-02)
Lots I and 2 of the Northwest quarter, and the Southwest quarter of Fractional Section 5, Township 29
South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of California, according to the Official Plat thereof.
Parcel 6: (APN: 153-080-05)
The Southeast quarter of Section 8, Township 29 South, Range 35 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
thereof.
Parcel 7: (APN: 153-080-04)
Section 9, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 8: (APN: 153-090-01)
Section 15, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Exhibit 1-1-1
LA\1906082.6
Parcel 9: (APN: 153-090-03)
Section 13, Tov�nship 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 10: (APN: 153-100-03)
Section 17, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 11: (APN: 153-100-10)
Section 21, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 12: (APN: 153-090-05)
Section 23, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 13: (APN: 153-110-03)
Section 25, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according t o the Official Plat thereof
Parcel 14: (APN: 153-110-01)
Section 27, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 15: (APN: 153-120-02)
Section 29, Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 16: (APN: 153-120-04)
The North half of the Northeast quarter, and the Northeast quarter of the Northwest quarter of Section 28,
Township 29 South, Range 35 East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kem, State of California, according to the Official Plat thereof.
Parcel 17: (APN: 153-120-07)
The East half of the Northeast quarter, the Northwest quarter of the Northeast quarter, the East half o f the
Southeast quarter, and the West half of Section 33, Township 29 South, Range 35 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kem, State of California, according to the
Official Plat thereof.
Exhibit 1- 1 -2
LA\1906082.6
EXHIBIT J
FORM -OF MEMORANDUM OF
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
RECORDING REQUESTED. BY AND
WHEN RECORDED MAIL TO:
The City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attention: Jeff Harrison, Esq.,-
City Attorney
Above Space for Recorder's Use
MEMORANDUM OF AMENDED AND RESTATED PURCHASE AND SALE.
AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS MEMORANDUM OF AMENDED AND RESTATED PURCHASE AND SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Memorandum "), dated as of
October —, 2008, is made by and between the CITY OF VERNON, a California chartered city
("Buyer"), and ReNu RESOURCES, LLC, a Delaware limited liability company
Capitalized terms used in this Memorandum without, definition have the meanings provided them
in the Purchase Agreement (as defined below).
WITNESSETH:
Buyer and Seller do hereby acknowledge that:
I . Purchase Agreement. Buyer and Seller are parties to that certain Amended and
Restated Purchase and Sale Agreement and Joint Escrow Instructions dated as of October 8,
2008 (the "Purchase Agreement"). Pursuant to the Purchase Agre I ement, Buyer has acquired a
fee simple interest in all that certain parcel of land.situated in Kern County, California consisting
of approximately 29,722.44 acres, as more particularly described in Exhibit A attached hereto
(the "Wind Land"), subject to certain Seller Retained Easements.
2. Deferred Wind Purchase Price. As part of the consideration for the Wind Land,
Seller is entitled to receive certain deferred payments, if and to the extent provided in the
Purchase Agreement.
.3. P=os . This Memorandum is for informational purposes only and nothing
contained herein shall be deemed to in any way modify or otherwise affect any of the provisions
of the Purchase Agreement. This Memorandum is subject to all of the provisions of the Purchase,
Agreement and, in the event of any inconsistency between the provisions of the Purchase
Agreement and this Memorandum, the provisions of the Purchase Agreement shall prevail.
Exhibit J- I
LA\1906082.6
4. Other Provisions. The other provisions of the Purchase Agreement, including,
without limitation, those pertaining to the terms of any purchase and sale of the Property, shall be
as provided in the Purchase Agreement, which, by this reference, are incorporated herein..
5, Counteiparts. This Memorandum may be executed and deliv
ered in any number
of counterparts, each of which so executed and delivered shall be deemed to be an original and
all of which shall constitute one and the same instrument.
(The remainder of this page is intentionally left blank.]
Exhibit J-2
LA\1906082.6
IN WITNESS WHEREOF, the � parties hereto have duly executed this
Memorandum as of the day and year first written above.
SELLER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By:
Name:
Title:
BUYER:
CITY OF VERNON,
ATTEST:
a California chartered city
By:
By:
Name:
Name:
Title:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
Exhibit J-3
LA\1906082.6
State of California
County of
On before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS�my hand and official seal.
Signature
(Seal)
Exhibit J"4
LA\1906082.6
EXHIBIT A
TO
MEMORANDUM OF AMENDED AND RESTATED PURCHASE AND SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS
LEGAL DESCRIPTION
[see attached]
Exhibit J-5
LA\1906082.6
EXHIBIT K
DESCRIPTION QF-WL TRANSMISSION EASEMENT AGREEMENT PROPERTY
Parcel 1: (APN: 153-170-01)
Section 27, Township 29, South, Range 36 East, Mount Diablo Base and Meridian in the un-incorporated
area, County of Kem, State of California, according.to the Official Plat thereof.
Parcel 2; (APN: 153-180-12)
The East half of the Southeast quarter of Section 28, Township 29 South, Range 36 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kern, State of California, according, to the
Official Plat thereof.
Except 1/16"' of all coal, oil, gas and other mineral deposits contained in said lands as reserved by an Act
of the Legislature approved May 25, 1921 (Chap. 303, Statutes, 19.21), as reserved in the State of
Calif6rnia, in Patent recorded March 29, 1923 in Book 484, Page(s) 42 of Official Records.
Parcel 3: (APN: 153-180-02)
The North half of the Northeast quarter of Section 29, Township 29 South, Range 36 East, Mount Diablo
Base and Meridian, in the un-incorporated area, County of Kern, State.of California, according to the
Official Plat thereof
Parcel 4: (APN: 153-180-04)
The Southwest quarter of the Southeast quarter, and the Southwest quarter of Section 29, Township 29
South, Range 3,6 East, Mount Diablo Base and Meridian, in the un-incorporated area, County of Kern,
State of California, according to the Official Plat thereof
Parcel 5: (APN: 153-170-06)
Fractional Section 35, Township 29 South, Range 36 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California according to the Official Plat thereof.
Parcel 6: (APN: 181-020-11)
Fractional Section 7, Township 30 South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kem, State of California, according to the Official Plat thereof.
Except a strip of land 200 feet wide, granted to the City of Los Angeles by Deed recorded March 13, 1920
in Book 346, Page(s) 421 of Deeds.
Also except that portion of said section, granted to the City of Los Angeles by Deed recorded September
20, 1973 in Book 4804, Page(s) 2459 of Official Records.
Exhibit K- I
LA\ 1906082.6
Parcel 7: (APN: 181-080-32)
Fractional Section 17, Township N South, Range 37 East, Mount Diablo Base and Meridian, in the un-
incorporated area, County of Kern, State of California, according to the Official Plat thereof,
Except a strip of land 200 feet wide granted to the City of Los Angeles, by Deed recorded September 20,
1973:in Book 4804,,Page(s) 2459 of Official Records.
Parcel'8: (APN: 181-080-11)
The East half of the Southeast quarter of the Northwest quarter,, Lots 1, 2, 3 and 4, and the East half of the
Southwest quarter of Fractional Section 19, Township 30 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official Plat
- thereof.
Except a strip of land 200 feet wide, granted to the City of Los Angeles, by Deed recorded July 2 l,'I 921
in Book 366, Page(s) 229 of Deeds.
Parcel 9: (APN: 181-080-30)
The North half of the Northeast quarter, the Southwest quarter of the Northeast quarter, the Northwest
quarter, and the South half of Section 21, Township 30 South, Range 37 East, Mount Diablo Base and
Meridian, in the un-incorporated area, County of Kem, State of California, according to the Official Plat
thereof.
Except a strip of land 250 feet wide, granted to the City of Los Angeles, by Deed.recorded September 20,
1973 in Book 4804, Page(s) 2456 of Official Records.
Also except a strip of land 200 feet wide as granted to the City of Los Angeles by Deed recorded
September 20, 1973 in Book 4:804, Page(s) 2459 of Official Records.
Parcel 10: (APN: 181-190-02)
The Northwest quarter and the South half of Section 2.9, Township 30 South, Range 37 East, Mount
Diablo Base and Meridian, in the un-incorporated area, County of Kern, State of California, according to
the Official Plat thereof.
Parcel 11: (APN: 442-020-20)
Section 9, Township 30.South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area., County of Kern, State of California, according to the Official Plat -thereof.
Except an undivided 1/2 interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.C. Walser, also known as John Caswell Walser and 'Blanche Walser, husband and wife as
joint tenants, in Deed recorded July 9, 1937 in Book 73 1, Page(s) 490 of Official Records.
Parcel 12: (APN: 442-010-10)
The South half of the South half of Section 10, Township 30 South, Range 34 East, Mount Diablo Base
and Meridian, in the un-incorporated area, County of Kern, State of California, according to the Official
Plat thereof.
Exhibit K-2
LA\1906082.6
Except an undivided V2 interest in all oil, gas and hydrocarbon substances, within or underlying said land,
as granted to J.C. Walser, also known as John Caswell Walser and Blanche Walser, husband and wife as
joint tenants, in Deed recorded July 9, 1937 in Book 73 1, Page(s) 490 of Official Records.
Parcel% 13: (APN: 442-030-01)
Section 15, Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kern, State of California, according to the Official Plat thereof.
Parcel 14: (A-PN: 442-040-01)
The West, half of the Southeast quarter, and the East half of the Southwest quarter of Section 1,8,
Township 30 South, Range 34 East, Mount Diablo Base and Meridian, in the un-incorporated area,
County of Kern, State of California, according to the Official Plat thereof.
Parcel 15: (APN: 444-070-09)
Section .11, Township 30 South, Range 36 East, Mount Diablo Base I and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Parcel 16: (APN: 444-090-04)
Section 13, Township 30 South, Range 36 -East, Mount Diablo Base and Meridian, in the un-incorporated
area, County of Kem, State of California, according to the Official Plat thereof.
Exhibit K-3
LA\1906082.6
EXHIBIT M
FORM OF MEMORANDUM OF OPTION
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The City of Vernon
43 05 Santa Fe Avenue
Vernon, California 9005 8
Attention: Jeff Harrison, Esq.,
City Attorney
Above Space for Recorder's Use
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION (this "Memorandum"), dated as of October
2008, is made by and between ReNu RESOURCES, LLC, a Delaware limited liability company
("Own '), and the CITY OF VERNON, a California chartered city ("Option Holder").
Capitalized terms used in this Memorandum without definition have the meanings provided them.
in the Purchase Agreement (as defined below).
WITNESSETH:
Owner and Option Holder do hereby acknowledge that:
I . Purchase Agreement. Owner and Option Holder are parties to that certain
Amended and Restated Purchase and Sale Agreement and Joint Escrow Instructions dated as of
October 8, 2008 (the "Purchase Agreement"). Pursuant to the Purchase Agreement, Option
Holder has the exclusive right to purchase, among other things (the "Optio ") (a) a fee simple
interest in up to 5,000 acres designated by Option Holder from among (i) those parcels located in
Kern County, California described on Exhibit A attached hereto and (ii) those parcels located in
Kern County, California described. on Exhibit B attached hereto (collectively, the "Propert
and (b) certain easements benefiting the Property.
2. Exercise of the, Option. Pursuant to the terms of the Purchase Agreement, the
Option must.be. exercised, if at all, within not later than the third anniversary of the date of this
Memorandum. The terms pursuant to which the Option may be exercised are as set forth in the
Purchase Agreement.
. 3. Purpos . This Memorandum is for informational purposes only' and nothing
contained herein shall be deemed to in any way modify or otherwise affect any of the provisions
of the Purchase Agreement. This Memorandum is subject to all of the provisions of the Purchase
Agreement and, in the event of any inconsistency between the provisions of the Purchase
Agreement and this Memorandum, the provisions of the Purchase Agreement shall prevail.
Exhibit M- I
LA\1906082.6
4. Other Provisions. The other provisions of the Purchase Agreement, including,
without limitation, those pertaining to the terms of any purchase and sale of the Property, shall be
as provided in the Purchase Agreement, which, by this reference, are incorporated herein.
5. Countervarts. This Memorandum may be executed and delivered i
n any number
of counterparts, each of which so executed and delivered shall be deemed to be an original and
all of which shall constitute one and the same instrument.
[The remainder of this page is intentionally left blank,]
Exhibit M-2
LAN1006082.6
IN . WITNESS WHEREOF, the parties hereto have duly executed this
Memorandum as of the day and year first written above.
OWNER:
ReNu RESOURCES, LLC,
a Delaware limited liability company
BY: -
Name:
Title:
OPTION HOLDER:
CITY OF VERNON, ATTEST:
a California chartered city
By: _
Name:
Title:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
Exhibit M-3
LA\1906082.6
I
State of California
County of
On before me,
personally appeared
-who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the pers,on(s), or the entity
upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF 'PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
L
(Seal)
LA\1906082.6
Exhibit M-4
-EXHIBIT A
TO
MEMORANDUM OF OPTION
LEGAL DESCRIPTION
[see attached]
Exhibit M-5
LA\1906082.6
EXHIBIT N
FORM OF WL GENERAL TRANSMISSION EASEMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
The City of Vernon
4305 Santa Fe Avenue
Vernon, Califomia.90058
Attention: Jeff Harrison, Esq., City Attorney
TRANSMISSION EASEMENT
THIS TRANSMISSION EASEMENT (this "Easement Agreement") is made as of
October —, 2008, by ReNu RESOURCES LLC, a Delaware limited liability company
("Grantor"), to the CITY OF, VERNON, a California chartered city ("Grantee"), with reference
to the following recitals:
RECITALS
A. Grantor owns that certain real property located in the unincorporated areas of
Kern County, as described on Exhibit A attached hereto (the "Transmission Easement Area").
B. Concurrent hereto, Grantor sold and conveyed to Grantee that certain real
property located in the unincorporated areas of Kern County, as described on Exhibit B attached
hereto (the "Appurtenant Property"), pursuant to that certain Amended and Restated Purchase
and Sale Agreement and Joint Escrow Instructions by and between Grantor and Grantee and
dated as of October 8, 2008 (the "PSA").
C. Pursuant to the conditions to closing under the PSA, Grantor desires to grant to
Grantee and Grantee desires to accept from Grantor general easements in, over, across and
through a portion of the, Transmission Easement Area appurtenant to and benefiting the
Appurtenant Property, on the terms and conditions set forth herein.
NOW, THEREFORE, in - consideration of the foregoing recitals, the covenants
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor hereby declares as follows:
I . Easement. Grantor hereby grants to Grantee a non-exclusive easement
and right-of-way appurtenant to and benefiting. theAppurtenant Property located in, over, across
and through the Transmission Easement Area (i) to permit Grantee to access and use electric
power transmission lines of . (collectively, the "Transmission Owners") the Los Angeles
Department of Water and Power ("LADWP'% Southern California Edison ("SCE") and any
other applicable transmission owner (the "Transmission Easem'ent') and (ii) to permit any other
Permissible Uses (as defined in the PSA), in each case in a manner that is consistent with the
Access Requirements (as defined below). For the purposes of this Easement Agreement,
Exhibit N- I
LA006082.6
"Access Requirements" shall consist of the following: (x) any use of the Transmission
Easement shall be subject to the reasonable conditions Grantor may impose from time to time,
including requirements of security, safety, insurance, coordination and advance scheduling, and
indemnification; and (y) the use -of the Transmission Easement shall not interfere in any material
respect with Grantor's use of the Transmission Easement Area.
2. Effectiveness. Grantee shall have no right to use the Transmission
Easement until Grantor. and Grantee shall have (i) determined, identified and agreed to a
preferred, specific route for the Transmission Easement within the Transmission Easement Area
("Specific Transmission Easement Route"), and (ii) entered into an Amended and Restated
Transmission Easement, which shall amend and restate this Easement Agreement to, among
other things, amend Exhibit A hereto to include only the Specific Transmission Easement Route
and delete and release, any extraneous portions of the Transmission Easement Area that are not
part of the Specific. Transmission Easement Route ("Amended and Restated Transmission
Easement"), on such terms and conditions provided in the PSA. Grantor has provided G rantee
with a copy of a report from PDS Consulting regarding, transmission issues ("Transmission
Report"). If approved by Grantee, which approval shall not be unreasonably withheld, the
Specific Transmission Easement Route shall be the rout ' e shown in the Transmission Report ftom.
the Appurtenant Land to LADWP at both the Pine Tree Substation and the Barren Ridge
Substation and to SCE at SCE's forthcoming Tehachapi Sub 1 Substation. If reasonably
disapproved by Grantee, Grantee and Grantor shall agree upon a reasonable alternate route for
the Specific Transmission Easement Route. Once Grantee and Grantor have agreed to the
Specific Transmission Easement Route, Grantor and Grantee shall negotiate, execute and. record
the Amended and Restated Tr�nsmission Easement, which shall contain those provisions
required pursuant to Section I (d) of th e PS A with respect to the "WL Specific Transmission
Easement Agreement" referred to therein, including, without limitation:
a. provisions permitting Permissible Uses; provided that the
Permissible Uses shall be subject to the conditions and restrictions set forth in clauses (A)
through (E) of Section l(d)(ii) of the PSA,
b. provisions providing for three separate one-time rights in favor of
Grantee to designate, until the Wind Permitting Date (as defined in the PSA), alternate routes for
the Specific Transmission Easement Route for interconnection with LADWP, SCE or one other
Transmission Owner, if any, respectively, as provided in Section I (d)(iii) of the P SA, subject to
the last paragraph of Section I (d)(v) of the PSA,
C. provisions providing for Grantee's right to request minor
amendments to the Specific Transmission Easement - Route to accommodate specific
environmental or terrain concerns, as provided in Section 1 (d)(iii) of the PSA,
d. provisions providing for Grantor's right to request, and Grantee's
duty to agree to, amendments to the Amended and Restated Transmission Easement to exclude
portions of the Transmission Easement Area upon the terms and conditions of Section I (d)(V) of
the PSA,
Exhibit N-2
LA\19060816
e. a provision that, except as provided in the last sentence of clause
(iii) of Section.l(d) of the PSA, the use of the Transmission Easement shall be at no additional
cost paid by Grantee to Grantor, subject to Grantee's obligation to satisfy any indemnity
obligation as part of the Access Requirements, all as provided in Section I (d)( . vi) of the PSA� and
f, provisions providing for Grantor's right, at any time following the
first anniversary of the date hereof, to request that the Amended and Restated Transmission
Easement, as the same may be amended or restated, be amended to exclude portions of the
Transmission Easement Area on which Grantor will be constructing improvements or -as to
which Grantor otherwise has a need to clarify that the Transmission Easement could not lie upon
such areas subject to such amendment request, as provided in Section I (d)(iv) of the PSA.
3. - Term. If the Amended and Restated Transmission Easement has not been
executed and recorded on or before the first anniversary of the date hereof for reasons other than
Grantor's default under the. PSA, this Easement Agreement shall automatically expire and be of
no further force or effect, and to confirm the same, Grantee shall execute, acknowledge where
appropriate and deliver any reasonable documents submitted by Grantor to release this Easement
Agreement.
4. Payment. Except for the express reimbursement , and indemnity
obligations provided for herein or that may be provided for in the Amended and Restated
Transmission Easement, no additional. payment shall be required of Grantee for the Transmission
Easement.
5. No Gift or Dedication. Nothing contained in this Easement Agreement
shall be deemed to be a gift or dedication of any portion o . f the Transmission Easement Area to
or for the general public or for any public use or purpose whatsoever, it b eing the intention of th ' e
parties that the Transmission Easement and rights granted in this Easement Agreement, as it may
be amended or restated, shall be strictly limited to. and for the purpos es herein expressed with
respect to private property solely for the benefit of the parties.
6. Mortgagee Protection. No breach or violation of this Ea�ement
Agreement or of the restrictions provided herein shall render invalid.the lien of any mortgage,
deed of trust or similar instrument securing a loan made in good faith and for value with respect
to any portion of the Transmission Easement Area, but all of the provisions of this Easement
Agreement shall be binding upon and effective against any subsequent owner (including any
mortgagee or beneficiary under a deed of trust) who acquires title to the Transmission Easement
Area or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
7. Governing -Law. This Easement Agreement shall be governed by and
construed in accordance with the laws of the.Sta'te of California.
8.. Successors I and Assigns; Covenants Running with the Land. This
Easement Agreement is binding upon and shall inure to the benefit of the parties and their
respective successors and assigns, tenants, invitees and licensees. All of the provisions of this
Easement Agreement. shall be enforceable as equitable servitudes and constitute covenants
Exhibit N-3
LA\1906082.6
running with the land pursuant to applicable law, including, without limitation, Section 1457 et.
seq. of the California Civil Code.
9.. Severability. If any provision of this Easement Agreement is prohibited
or held to be invalid, illegal or unenforceable for any reason, the parties hereto agree to the
fullest 'extent permitted by law that (a) the validity, legality and enforceabili y of the other.
it
provisions shall not be affected or impaired thereby and (b) the parties hereto shall endeavor in
good faith negotiations to replace the invalid or unenforceable provisions with valid and
enforceable provisions, the economic effect of which. Comes as close as possible to that of the
invalid. or unenforceable provisions.
10. . Complete Understandinz This Easement Agreement, together with the
referenced provisions of the PSA, constitute the entire understanding between the parties with
respect to. the subject matter hereof, superseding all negotiations, prior discussions, and
preliminary agreements or understandings, written or oral. This Easement Agreement may not
be amended except in writing by the parties hereto or their successors.
11. Article Headings. Article headings in this Easement Agreement are for
convenience only and are not intended to be used in interpreting or construing the terms,
covenants and conditions of this Easement Agreement.
12. Recordation of the Easement. Grantee shall accept this Easement
Agreement and cause the same to be recorded in the office of the Kem County Recorder.
13. Remedies. In the event of any breach or threatened breach of any
provision of this Easement Agreement, the parties hereto may prosecute . any proceedings at law
or in equity to enjoin such breach or threatened breach and to recover damages for any such
breach. The. remedies permitted or available pursuant to the provisions of this Easement
Agreement shall be cumulative and in addition to any rights or remedies available at law or in
equity.
14. Indenmification. Grantee shall indemnify, defend and hold Grantor, and
its officers, employees and . agentg (collectively, with G . rantor, the "Indenmified Parties and
each of them, individually, an "Indenmified Party") harmless from and against any and all
losses, claims, demands, costs, expenses, liens, fines, penalties, liabilities, judgments and
damages resulting directly from Grantee's exercise of any rights granted to Grantee under this
Easement Agr eement, provided that Grantee shall not be required to indemnify or hold the
Indemnified Parties harmless from and against any loss, claim, demand, cost, expense, lien, fine,
penalty, liability, judgment or damages arising from the willful or gross negligent acts or
omissions of any Indemnified Party.
[Remainder of Page Intentionally Left Blank]
Exhibit N-4
LA\1906082.6
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement
Agreement as of the date first set forth above.
GRANTOR:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By:
Name:
Title:
GRANTEE:
CITY OF VERNON,
a California chartered city
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
Exhibit N-5
LA\1906082.6
ACKNOWLEDGMENT
State of California
County of
On before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/th.ey executed the same in
his/her/their authorized
capacity(ies), and that by his/lier/their signature(s) on the instrument the person(s), or the entity
upon behalf
of which the person(s) acted, executed the instrument.
1. certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Exhibit N-6
LA\ 1906082.6
EXHIBIT A
TO
TRANSMISSION EASEMENT
LEGAL DESCRIPTION OF TRANSMISSION. EASEMENT AREA
[see attached]
Exhibit N-7
LA\1906082.6
EXHIBIT B
TO ,
-TRANSMISSION EASEMENT
LEGAL DESCRIPTION OF APPURTENANT PROPERTY
[see attached]
Exhibit N-8
LA\1906082.6
EXHIBIT 0
FORM OF WL GENERAL MISCELLANEOUS EASEMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
The City of Vernon
4305 Santa Fe Avenue
Vernon, Cal ifornia 90058
Attention: Jeff Harison, Esq., City Attorney
ACCESS EASEMENT AND LICENSE AGREEMENT
THIS, ACCESS EASEMENT AND LICENSE AGREEMENT (this "Agreement") is
made as of October —, 2008, by ReNu RESOURCES LLC, a, Delaware limited liability
company ("Grantor"), to the CITY OF VERNON, a California chartered city ("Grantee"), with
reference to the following recitals:
RECITALS
A. Grantor owns that certain real property located in the unincorporated areas of
Kern County, as described on Exhibit A attached hereto (the "Access Easement Area").
B. Grantor owns that certain real property. located in the unincorporated areas of
Kern County, as described on Exhibit B attached hereto (the "License Area").
C. Concurrent hereto, Grantor sold and, conveyed to Grantee that certain real
property located in the unincorporated areas of Kern County, as described on Exhibit C attached
hereto ("Appurtenant Property"), pursuant to that certain Amended and Restated Purchase and
Sale Agreement and Joint Escrow Instructions by and between Grantor and Grantee and dated as
of October 8, 2008 (the "PSA").
D. Pursuant to the conditions to closing under the PSA, Grantor desires to grant I to
Grantee and Grantee desires to accept from Grantor (i) general easements in, over, across and
through a portion of the Access Easement Area appurtenant to and benefiting the Appurtenant
Property, on the terms and conditions set forth herein, and (ii) an irrevocable, non-exclusive
license to access the License Area for the purpose of conducting studies, investigations and tests
the reon, and the physical components thereof, on the terms and conditions set forth'herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the covenants
hereinafter set forth, and for other good and valuable consideration, the receipt and suffidi6ncy of
which are hereby acknowledged, Grantor hereby declares as follows:
I Easement. Grantor hereby grants to Grantee a non-exclusive easement
and right-of-way appurtenant to and benefiting the Appurtenant Property located in, over, across
and through the Access Easement Area to permit Grantee (1) to access utilities, and (2) to access
Exhibit 0-1
LA\1906082.6
(or, with the consent of Grantor not to be unreasonably withheld, construct) roads of any type
(dirt, gravel or paved), in each case in a.manner that is consistent -with. the Access Requirements
(defined below), but only to the extent that any such access cannot reasonably be provided
(including taking.into account materially increased costs to Grantee resulting from using the
Appurtenant Property to ac'Oess the relevant utilities or constructing roads on the Appurtenant
Property to access the relevant utilities over the costs that would be incurred from using the
Access Easement Area) on the Appurtenant Property or within or adjacent t o the WL Specific
Transmission Easement Route (as defined in the PSA) (the "Access Easement"). . For the
purposes of this Agreement, "Access Requirements" shall consist of the following: (x) any use
of the Access Easement or the License (as defined below) shall be subject to the reasonable
conditions Grantor may impose from time to time, i ncluding requirements of security, safety,
insurance, coordination and advance scheduling, and indemnification; and (y)'the use of the
Access Easement or the License shall not interfere iniany material r'
espect with Grantor's use of
the Access Easement. Area or the License Area, as applicable.
2. License. Grantor hereby grants to Grantee an irrevocable, non-exclusive
license to'access the License Area for the purpose of conducting studies, investigations and tests
thereon, and the physical components thereof, to the extent reasonably related to Grantee's
development of the Appurtenant Property, in each case in a manner that is consistent with the
Access Requirements (collectively, the "License").
3. Effectiveness. Grantee shall have no right to use the Access Easement
until Grantor and Grantee shall have (i) determined, identified and agreed to specific locations
for the Access Easement within the Access Easement Area ("Specific Access Easement
Locations"), and (ii) entered into an Amended and Restated Access Easement and License
Agreement, which shall amend and restate this Agreement to, among other things, amend Exhibit
A hereto' to include only the Specific Access Easement Locations and delete and release' any
extraneous :portions of the Access Easement Area that are not part of the Specific Access
Easement Locations ("Amended and Restated Access Easement and License Agreement"),
on such terms and conditions provided in the PSA. One I e Grantee and Grantor have agreed to the
Specific Access Easement Locations, Grantor and Grantee shall negotiate, execute and record the
Amended and Restated Access Easement and License Agreement, which shall contain those
provisions required pursuant to Section l(e) of the. PSA with respect to the "WL Specific
Miscellaneous Easement Agreement" referred to therein, including, without limitation, (i) the
conditions and restrictions set forth in clauses (A) through (D) of Section 1(e)(ii) of the PSA; (ii)
provisions providing for Grantor's right, at, any time following the date hereof, to request that the
Amended and Restated Access Easement and'License Agreement, as the same may be amended
or restated, be amended to exclude portions of the Access Easement Area on which Grantor will
be constructing improvements or as to which Grantor otherwise has a need to clarify that the
Access Easement could not lie upon such areas subject to such amendment request, as provided
in Section l(e)(iii) of the PSA; And (iii) a provision that the use of the Access Easement shall be
at no additional cost paid by Grantee to Grantor, subject to Grantee's obligation to satisfy any
indemnity obligation as part of the Access Requirements, all as provided in Section 1(e)(iv) of
the PSA.
4. Term. If the Amended and Restated Access Easement and License
Agreement has not been executed and recorded on or.bef6re the Wind Permitting Date (as
Exhibit 0-2
LA\1906082.6
defined in the PSA) for reasons other than Grantor's default under the PSA, Grantee shall
execute, acknowledge ' where appropriate and deliver any reasonable documents submitted by
Seller to release and reconvey the Access Easement. The License shall expire on the first
anniversary of the date of commencement of commercial operation of the Wind Project (as
defined in the PSA), and Grantee shall execute, acknowledge where appropriate and deliver any
reasonable documents submitted by Seller to release and reconvey the License following its
expiration.
5. Pavnient. Except for the express reimbursement and indemnity
obligations provided for herein or that may be provided for in the Amended and Restated Access
Easement and License Agreement, no additional payment shall be required of Grantee for the
Access Easement or the License.
6. No Gift or Dedication. Nothing contained in this Agreement shall be
deemed to be a gift or dedication of any portion of the Access Easement Area or the License
Area to or for the general public or for any public use or purpose whatsoever, it being the
intention of the parties that the Access Easement, the License and rights granted in this
Ag reement, as it may be amended or, restated, shall be strictly limited to and for the purposes
herein expressed with respect to private property solely for the benefit of the parties.
7. Mortmee Protection. No breach or violation of this Agreement or of
the, restrictions provided herein shall render invalid the lien of anymortgage, deed of trust or
similar instrument securing a loan made in good faith and for value with respect to any portion of
the Access Easement Area or the License Area, but all of the provisions of this Agreement shall
be'binding upon and effective against any subsequent owner (including any mortgagee or
beneficiary under.a. deed of trust) who acquires title to the Access Easement Area or the License
Area, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
8. Governim Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9. Successors. and Assim, Covenants Runnin2 w4th th
I e Land. This
Agreement is binding upon and shall inure to the benefit of the parties and their respective
successors and assigns, tenants, invitees and licensees. All of the provisions of this Agreement
shall be enforceabl e as equitable servitudes and constitute covenants running with the land
pursuant to applicable law, including, without limitation, Section 1457 et. seq. of the California
Civil Code.
10. Severabililtv. If any provision of this Agreement is prohibited or held to
be invalid, illegal or unenforceable for any reason, the parties hereto agree to the fullest extent
permitted by law that (a) the validity, legality and enforcea . bility of the other provisions shall not
be affected or impaired thereby and (b) the parties hereto shall endeavor in good faith
negotiations to replace the invalid or unenforceable provisions with valid and enforceable
provisions, the economic effect of which comes as close as possible to that of t he invalid or
unenforceable provisions. . I
Exhibit 0-3
LA\1906082.6
11. Complete Understanding. This Agreement, together with the referenced
provisions of the PSA, constitute the entire understanding between the parties with respect to the
subject matter here(:�f, superseding all negotiations, prior discussions, and preliminary
agreements. or understandings, written or oral. This Agreement may not be amended except.in
writing by the parties hereto or their successors.
12. - Article Headiny-s. Article headings in this Agreement are for
convenience only and are not intended to be used in interpreting or construing the terms,
covenants and conditions of this Agreement.
13. Recordation of the Easement. Grantee shall accept this Agreement and
cause the same to be recorded in the office of the Kern County Recorder.
14. Remedies. In the event of any breach or threatened breach of any
provision of this Agreement, the parties hereto may prosecute any proceedings at law or in equity
to enjoin such breach or threatened breach and to recover.damages for any such breach. The
remedies permitted or available pursuant to the provisions of this Agreement shall be cumulative
and in addition to any rights. or remedies available at law or in equity.
15. Indemnification. Grantee shall indemnify, defend and hold Grantor, and
its officers, employees and agents (collectively, with Grantor, the "Indemnifled Parties and
each of them, individually, an "Inden-mirled Party") harmless from and against any and al I I
losses, claims., demands, costs, expenses, liens, fines, penalties, liabilities, judgments and
damages resulting directly from Grantee's exercise of an' rights granted to Grantee under this
y
Agreement, provided that Grantee shall not be required to,indemnify or hold the Indemnified
Pafties harmless from and against any loss, claim, demand, cost, expense, lien, fine, penalty,
liability, judgment or damages arising from the willful or gross negligent acts or omissions of
any Indemnified Party.
[Remainder of Page Intentionally Left Blank]
Exhibit 0-4
LA\1906082.6
IN WITNESS WHEREOF, Grantor and Grantee have executed this Access
Easement and License Agreement as of the date first set forth above.
GRANTOR:
ReNu RESOURCES, LLC,
a Delaw'are limited liability company
By:
Name:
Title:
GRANTEE:
CITY OF VERNON, ATTEST:
a California chartered city
By: By:
Name: Name:
Title: Title:
APPROVED AS TO FORM:
By:
Name.:
Title:
Exhibit 0-5
LA\1906082.6
State of California
County of
On
personally appeared
before me,
W11U PI-UVt;U LQ MU On Me oasis oi sarisiactory evic.lence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Exhibit 0-6
LA\1906082.6
EXHIBIT A
. TO
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF ACCESS EASEMENT AREA
[see attached]
Exhibit 0-7
LA\1906082.6
EXHIBITA
TO
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF LICENSE AREA
[see attached]
Exhibit 0-8
LA\1906082.6
EXHIBIT C
To
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF APPURTENANT PROPERTY
[see attached]
Exhibit 0-9
LA\1906082.6
EXHIBIT P
FORM OF
SELLER RETAINED GENERAL TRANSMISSION EASEMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
TRANSMISSION EASEMENT
THIS TRANSMISSION EASEMENT (this "Easement Agreement") is made as of
October 2008, by the CITY OF VERNON, a Califomia.c hartered city ("Grantor"), to ReNu
RESOURCES LLC, a Delaware limited liability company ("Grantee"), with reference to the
following recitals:
RECITALS
A. Grantee owns that certain real property located in the unincorporated areas of
Kem County, as described on Exhibit A attached hereto (the "Appurtenant Property").
B. Concurrent - hereto, Grantee sold and conveyed to Grantor that certain real
property located in the unincorporated areas- of Kem County, as described on Exhibit B attached
hereto (the "Transmission Easement Area"), pursuarit to that certain Amended and Restated
Purchase and Sale Agreement and Joint Escrow Instructions by I and between Grantor and
Grantee and dated as of October 8, 2008 (the "PSA").
C. Pursuant to the conditions to closing under the PSA, Grantor desires to grant to
Grantee and Grantee desires to accept from Grantor general easements in, over, across and
through a portion of the Transmission Easement Area appurtenant to and benefiting the
Appurtenant Property, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the covenants
hereinafter set forth, and for other good and valuable consideration, the receipt and suffi I ciency of
which are hereby acknowledged, Grantor hereby declares as follows:
I Easement. Grantor hereby grants to Grantee a non-exclusive easement
and right-of-way appurtenant to and benefiting the Appurtenant Property located in, over, across
and through the Transmission Easement Area (i) to permit Grantee to access and use electric
power transmission lines of (collectively, the "Transmission Owners") the Los Angeles
Department of Water and Power ("LADWP"), Southern California Edison ("SCE") and any
a
other applicable transmission owner (the "Transmission Easement"), and (ii) to permit any
other Permissible Uses (as defined in the PSA), in each -case in a manner that is consistent with
Exhibit P 4
LA\1906082.6
the Access Requirements (as defined below). For the purposes of this Easement Agreement,
"Access Requirements" shall consist of the following: (x) any use of the Transmission
Easement shall be subject to the reasonable conditions Grantor may impose from time to . time,
including requirements of security, safety, insurance, coordination
and advance scheduling, and
indemnification; and (y) the use of the Transmission Easement shall not interferein any material
respect with Grantor's use of the Transmission Easement Area.
2. Effectiveness. Grantee shall have no right to use the Transmission
Easement until Grantor and Grantee shall have (i) determined,. identified and agreed to a
preferred, specific route for the Transmission Easement within the Transmission Easement Area
("Specific Transmission Easement Route"), and (ii) entered into an Amended and Restated
Transmission Easement, . which shall amend and restate this Easement Agreement to, among
other things, amend Exhibit A hereto to include only the Specific Transmission Easement Route
and delete and release any extraneous portions of the Transmission Easement Area that are not
part of the Specific Transmission Easement Route. ("Amended and Restated Transmission
Easement"), on such terns and conditions provided in the PSA. Once Grantee and Grantor have
agreed to the Specific Transmission Easement Route, Grantor and Grantee shall negotiate,
execute and record the Amended �nd Restated Transmission Easement, which shall contain those
provisions required pursuant to Section 2(c) of the PSA with respect to the "Seller Retained
Specific Transmission Easement Agreement" referred to therein, including, without limitation:
a. provisions
Permissible Uses shall be subject to thc
through (E) of Section 2(c)(ii) of the PSA,
permitting Permissible Uses; provided that the
conditions and restrictions set forth in clauses (A)
b. provisions providing for three separate one-time rights in favor of
Grantee to designate, until the third anniversary of the earlier to occur of (x) the date that Grantor
notifies Grantee in writing that it will not exercise the Option (as defined in the PSA), or.(y) the
date that the Option (as defined in the PSA) lapses in accordance. with its terms, alternate routes
for t4e.Specific Transmission Easement Route for interconnection with LADWP, SCE and one
other'transmission Owner, if any, respectively, as provided in Section 2(c)(iii) of the PSA,
subject to the last paragraph of Section 2(c)(v) of the PSA,
C. provisions providing for Grantee's right to request minor
amendments to the Specific Transmission Easement Route , to accommodate specific
environmental or terrain concerns, as provided in Section 2(c)(iii) of the PSA,
d. provisions providing for Grantor's right to request, and Grantee's
duty to agree to, amendments to the Amended and Restated Transmission Easement to exclude
portions of the Transmission Easement Area upon the terms and conditions of Section 2(d)(v) of
the PSA, and
C. a provision that, except as provided in the last sentence of clause
(iii) of Section 2(c) of the PSA, the use of the Transmission Easement shall be at no additional
cost paid by Grantee to Grantor, subject to Grantee's obligation to satisfy any indemnity
obligation as part of the Access Requirements, all as provided in Section 2(c)(vi) of the PSA, and
Exhibit P-2
LA\1906082.6
f provisions providing for Grantor'.s right, at any time following the
date hereof, to request that the Amended and Restated Transmission Easement, as the same. may
be amended or restated, be amended to exclude portions of -the Transmission Easement Area on
which Grantor will be constructing improvements or as to which Grantor otherwise has a need to
clarify that the Transmission Easement could not lie upon such areas subject to such amendment
request, as provided in Section 2(c)(iv) of the PSA.
3. Term. If the Amended and Restated Transmission Easement has not been
executed and recorded on or before the Solar Permitting Date (as defined in the PSA) for reasons
other than Grantor's default under the PSA, this Easement Agreement shall automatically expire
and be of no further force or effect, and to confirm the same, Grantee shall execute, acknowledge
where appropriate and deliver any reasonable documents submitted by Grantor to release this
Easement Agreement.
4. Paymen Except for the express reimbursement and indemnity
obligations provided for herein or that may be provided for in the Amended and Restated
Transmission Easement, no additional payment shall be required of Grantee for the Transmission
Easement.
5. No Gift or Dedication. Nothing contained in this Easement Agreement
shall be deemed to be a gift or dedication of any portion of the Transmission Easement Area to
or for the general public or for any public use or purpose whatsoever, it being the intention of the
parties that the Transmission Easement and rights granted in this Easement Agreement, as it may
be amended or restated, shall be strictly limited to and for the purposes herein expressed with
respect to private property solely for the benefit of the parties.
6. Mortageee Protection. No breach or violation of this Easement
Agreement or of the restrictions provided herein shall render invalid the lien of any mortgage,
deed of trust or similar instrument securing a loan made in good faith and for value with respect
to any portion of the Transmission Easement Area, but all of the provisions of this Easement
Agreement shall be binding upon and effective against any subsequent owner (including any
mortgagee or beneficiary under a deed of trust) who acquires title to the Transmission Easement
Area or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
7. Governim Law. This Easement Agreement shall be governed by and
construed in accordance with the laws of the State of California.
8. Successors and Assigns; Covenants Runnin with the Land. Thi . s
Easement Agreement is binding upon and shall inure to the benefit of the parties and their
respective successors and assigns, tenants, invitees and licensees. All of the provisions of this
Easement Agreement shall be enforceable as equitable servitudes and constitute covenants
running with the land pursuant to applicable law, including, without limitation, Section 1457 et.
seq. of the California Civil Code.
9. Severability. If any provision of this Easement Agreement is prohibited
or held to be invalid, illegal or unenforceable for any reason, the parties hereto agree to the
Exhibit P-3
LA\1906082.6
fullest extent permitted by law that (a) the validity, legality and enforceability of the other
provisions shall not be affected or impaired thereby and (b) the parties hereto shall endeavor in
good faith negotiations to replace the invalid or unenforceable provisions with valid and
enforceable provisions, the economic effect of which comes as close as possible to that of the
invalid or unenforceable provisions.
I . 0. Complete Understandin2. This Easement Agreement, together with the
referenced provis . ions of the PSA, constitute the entire understanding between the parties With
respect to the subject matter hereof, superseding all negotiations, prior 'dis I cus.sions, and
preliminary agreements or understandings, written or oral. This Easement Agreement may not be
amended except in writing by the parties hereto or their successors.
11. Article Heading_s. Article headings in this Easement Agreement are for
convenience only and are not intended to be used in interpreting or construing the? terms,
covenants and conditions of this Easement Agreement.
12. Recordation of the Easement. Grantee shall accept this Easement
Agreement and cause the same to be recorded in the office of the Kem County Recorder.
13. Remedies. In the event of any breach or threatened breach of any
provision of this Easement Agreement, the parties hereto may pr . osecute any proceedings at law
or in equity to enjoin such breach or threatened breach and to recover damages for any such
breach. The remedies permitted or available pursuant to the provisions of this Easement
Agreement shall be. cumulative and in addition to any rights or remedies available at law or in
equity.
14. Indemnification. Grantee shall indemnify, defend and hold Grantor, and
its officers,. employees and agents (collectively, with Grantor, the "Indemnified Parties and
each of them, individually, an "Indemnified Party") harmless from and against any and all
losses, claims, demands, costs, expenses,. liens, fines, penalties, liabilities, judgments and
damages resulting directly from Grantee's exercise of any rights granted to Grantee under this
Easement Agreement, provided that Grantee shall not be required to indemnify or hold the
Indemnified Parties harmless from and against any loss, claim, demand, cost, expense, lien, fine,
penalty, liability, judgment or damages ansing from the willful or gross negligent acts or
omissions of any Indemnified Party.
[Remainder of Page Intentionally Left Blank]
Exhibit P-4
LA\1906082.6
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement
Agreement as of the date first set forth above.
GRANTOR:
CITY OF VERNON, ATTEST:
a California chartered city
By: _
Name:
Title:
GRANTEE:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By: _
Name:
Title:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
Exhibit P-5
LA\1906082.6
State of California
County of
On before me,
personally appeared
who proved to me ori the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capacity(ies), andthat by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS -my hand and official seal.
Signature
(Seal)
Exhibit P-6
LA\1906082.6
EXHIBIT A
TO
TRANSMISSION EASEMENT
LEGAL DESCRIPTION OF APPURTENANT PROPERTY
[see attached]
Exhibit P-7
LA\1906082.6
13
EXHIBIT B
TO
TRANSMISSION EASEMENT
LEGAL DESCRIPTION OF TRANSMISSION EASEMENT AREA
[see attached]
Exhibit P-8
LA\1906082.6
EXHIBIT 0
FORM OF
SELLER RETAINED GENERAL MISCELLANEOUS EASEMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
ACCESS EASEMENT AND LICENSE AGREEMENT
THIS ACCESS EASEMENT AND LICENSE AGREEMENT (this "Agreement") is
made. as of October —, 2008, by the CITY OF VERNON, a California chartered city
("Grantor"), to ReNu RESOURCES LLC, a Delaware limited liability company ("Grantee"),
with reference to the following recitals:
RECITALS
A. Grantee owns that certain real property located in the unincorporated areas of
Kern County, as described on Exhibit A attached hereto (the "Appurtenant Property").
B. Concurrent hereto, Grantee sold and conveyed to Grantor (i) that certain real
oropertylocated in the unincorporated areas of Kern County, as described on Exhibit B attached
hereto (the "Access Easement Area"), and (ii) that certain real property located in the
unincorporated areas of Kern County, as describ ' ed on Exhibit C attached hereto (the "License
Area") pursuant to that certain Amended and Restated Purchase and Sale Agreement and Joint
Escrow Instructions by and, between Grantor and Grantee and dated as of October 8, 2008 (the
4GPSA)').
C. Pursuant to the conditions to closing under the PSA, Grantor desires to grant to
Grantee and Grantee desires to accept from Grantor (i) general casements in, ovek, across and
through a portion of the Access Easement Area appurtenant to and benefiting the Appurtenant
Property, on the term's and condition's set forth herein and (ii) an irrevocable, non-exclusive
license to access the License Area for the purpose of conducting studies, investigations and tests
thereon, and the physical components thereof, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals\ the covenants
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor hereby declares as follows:
1. Easement. Grantor hereby grants to Grantee a non-exclusive easement
and right-of-way appurtenant to and benefiting the Appurtenant Property located in, over, across
Exhibit Q- I
LA\1906082.6
and through the Access Easement Area to permit Grantee (1) to exploit the Excluded Mineral
Rights (as defined in the PSA) and the Excluded Subsurface Water (as defined in the PSA), and
(2) to access and construct roads of any type (dirt, gravel or paved), in each.case in a manner that
is consistent with the Access,Requirements (defined below), but only to the extent thatany such,
access cannot reasonably be provided (including taking into account materially increased costs to
Grantee resulting from using the Appurtenant Property to exploit the Excluded Mineral Rights
(as defined in the PSA) and the Excluded Subsurface Water (as defined in the PSA) or
construction o - f roads on the Appurtenant Property over the costs that would be incurred from
using the Access Easement Area) on the Appurtenant Property or within or adjacent to the Seller
Retained Specific Transmission Easement Route (as defined in the PSA) (the "Access
Easement"). For the purposes of this Agreement, "Access Requirements" shall consist of the
following: (x) any use of the Access Easement or the License (as I defined below) shall be -subject
to the reasonable conditions Grantor may impose from time to time, including requirements of
security, safety, insurance, coordination and advance scheduling, and indemmification; and (y)
the use of the Access Easement or the License shall not interfere in any material respect with
Grantor's use of the Access Easement Area or the License Area, as applicable.
2. License. Grantor hereby grants to Grantee an irrevocable, non-exclusive
license to access the License Area for the purpose of conducting studies, investigations and tests
thereon, and the physical components thereof, to the extent reasonably related to ev
aluating (x)
Grantee's development of the Appurtenant Property and (y) Grantee's exploitation of the
Excluded Mineral Rights and Excluded Subsurface Water, in each case in a manner that is
consistent with the Access Requirements (collectively, the "License"). Grantee shall provide
Grantor a copy of all documentation relating to any study, investigation or test conducted by it or
its representatives on the License Area.
3. EffectNeness. Grantee shall have no right to use the Access Easement
until Grantor and Grantee shall have (i) determined, identified and agreed to specific locations
for the Access Easement within the Access Easement Area ("Specific Access Easement
Locations"), and (ii) entered. into an Amended and Restated Access Easement and License
Agreement, which shall amend and restate this Agreement to, among other things, amend Exhibit
A hereto to include only the Specific Access Easement Locations and delete and release any
extraneous portions of'the Access Easement Area that are I not part of the Specific Access
Easement Locations ("Amended and Restated Access Easement and License Agreement"),
on such terms and conditions provided in the PSA. Prior to determining the Specific Access
Easement Locations, Grantor shall be afforded a period not to exceed 120 days to perform
geological and other studies and investigations for purposes of assessing whether the Specific
Access Easement Locations would materially interfere with its rights to exploit the Geological
Features Right (as defined in the PSA). If and to the extent that Grantor reasonably determines
that such proposed action would materially interfere with its rights to exploit the,Geological
Features Right (as defined in the PSA), Grantor and Grantee shall cooperate to designate an
alternate preferred route for the Specific Access Easement Locations, recognizing that the
Geological Features Right is superior to, the Excluded Mineral Rights (as defined in the PSA)
and the Excluded Subsurface Water (as defined in the PSA). Once Grantee and Grantor have
agreed to the Specific Access Easement Locations, Grantor and Grantee shall negotiate, execute
and record the Amended and Restated Access Easement and License Agreement, which shall
contain those provisions required pursuant to Section 2(d) of the.PSA with respect to the"Seller
LA\1906082.6 Exhibit Q-2
Retained Specific, Miscellaneous Easement Agreement" referred to therein, including, without
limitation, (i) the conditions and restrictions set forth in clauses (A) through (E) of Section
2(d)(ii).of the PSA; (ii) provisions providing for Grantor's right, at any time following the
second anniversary of the date hereof, to. request that the Amended' and Restated Access
Easement and License Agreement, as the same may be amended or restated, be amended to
exclude portions of the Access Easement Area on which Grantor will be constructing
improvements or'as.to which Grantor otherwise has a need to clarify that the Access Easement
could not lie upon such areas subject to such amendment request, as provided in Section 2(d)(iii)
of the PSA; (iii) a provision that the use of the Access Easement shall be at no additional cost
paid, by Grantee to Grantor, subject to Grantee's obligation to satisfy any indemnity obligation as
part of the Access Requirements, all as provided in Section 2(d)(iv) of the PSA; (iv) if and to the
extent Grantor acquires.the Solar Land (as defined in the PSA) in accordance with Section 12
thereof, Grantor and Grantee shall cooperate to determine a preferred route for the Access
Easement on the Solar Land (as defined in the PSA), and Grantor'shall, at the request of.Grantee,
amend the Amended and Restated Access Easement to encumber a portion of the Solar Land (as
defined in the PSA ), all as provided in Section 2(d)(v) of the PSA; and (v) Grantee shall agree to
take all commercially reasonable steps, in connection with its use of the Access Easement, to
minimize the surface impact, including, without limitation, the use of directional drill ing.
4. Payment. Except for the express reimbursement and indemnity
obligations provided for herein or that may be provided for in the Amended and Restated Acce ss
Easement and License Agreement, no additional payment shall be required of Grantee for the
Access Easement or the License.
5. No Gift or Dedication. Nothing contained in this Agreement shall be
deemed to be a gift or dedication of any portion of the Access Easement Area or the License
Area to or forthe general public or for any public use or purpose whatsoever, it being the
intention -of the parties that the Access Easement, the License and rights granted in this
Agree ment, as it may be amended or restated, shall be strictly limited to and for the purposes
herein expressed with respect to private property solely for the benefit of the parties.
6. Mortmzee Protection. No breach or violation of this Agreement or of
the restrictions Provided herein shall render invalid the lien of any mortgage, deed of trust or
similar instrument securing a loan made in good faith and for value with respect to any portion of
the Access Easement Area or the License Area, but all of the provisionsof this Agreement shall
be binding upon and effective against any subsequent owner (including any mortgagee or
beneficiary under a deed of trust) who acquires title to the.Access Easement Area or the License
Area, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
7. Governin2 Law. This Agreement shall be governed by and construed in
accordance with the! laws of the State of California.
8. Successors and Assi2ns-, - Covenants Runnini with the Land. This
Agreement is binding upon and shall inure to the benefit of the parties and their respective
successors and assigns, tenants, invitees and licensees. All of the provisions of this Agreemen . t
shall be enforceable as equitable servitudes and constitute covenants running with the land
Exhibit Q-3
LA\1906082.6
pursuant to applicable law, including, without limitation, Section 1457 et. seq. of the California
Civil Code.
9. SeverabilitV. If any provision of this Agreement is prohibited or held to
be invalid, illegal or unenforceable, for any reason, the parties hereto agree to the fullest extent
permitted by law that (a) the validity, legality and enforceability of the other provisions shall not
be affected or impaired thereby and (b) the parties hereto shall endeavor in good faith
negotiations. to replace the invalid or unenforceable provisions . with valid and enforceable
provisions,, the economic effect of which comes as close as possible to that of the invalid or
unenforceable provisions.
10. Complete Understandin2. This Agreement, together with the referenced
provisions of the PSA, constitute the entire understanding between the parties with respect to the
subject matter hereof, superseding all negotiations, prior discussions, and preliminary
agreements or understandings, written or oral. This Agreement may not be amended except in
writing by the parties hereto or their successors.
11. Article Headings. Article headings in this Agreement are for
convenience only and are not intended to be used in interpreting or construing th I e terms,
covenants and conditions of this Agreement.
12. Recordation of the Easement. Grantee shall accept this Agreement and.,
cause the same to be recorded in the office of the Kern County Recorder.
13. Remedies. In the event of any breach or threatened breach of any
provision of this Agreement, the paqies hereto may prosecute any proceedings at law or in equity
to enjoin such breach or.threatened breach and to recover damages for any such breach. The
remedies permitted or available pursuant to the provisions of this Agreement shall be cumulative
and in addition to any rights or remedies available at law or in equity.
14. Indemnification. Grantee shall indemnify, defend and hold Grantor, and'
its officers, employees and agents (collectively,, with Grantor� the "Indemnifled Parties and
each of them, individually, an "Indemnified Party") harmless from and against any and all
losses, claims, demands, costs, expenses, liens, fines, penalties, liabilities, j '
udgments and
damages resulting directly from Grantee's exercise of any rights granted to Grantee under this
Agreement, provided that Grantee shall not be required to indemnify or hold the Indemnified
Parties harmless from and against any loss, claim, demand, cost, expense, lien, fine, penalty,
liability, judgment or damages arising from the willful or gross negligent acts or omissions of
any Indemnified Party
[Remainder of Page Intentionally Left Blank].
LA\1906082.6 Exhibit Q-4
IN WITNESS WHEREOF, Grantor and Grantee have executed this Access
Easement and License Agreement as of the date first set forth above.
GRANTOR:
CITY OF VERNON, ATTEST:
a California chartered city
By:
Name:
Title:
GRANTEE:
ReNu RESOURCES, LLC,
a Delaware limited liability company
By: _
Name:
Title;
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
Exhibit Q-5
LA\1906082.6
State of California
County of
On before me,
personally appeared
who proved to me on the basis of satisfactory evidence to b . e the person(s) whose name(s) is/are
subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized
capac.ity(ies), and that by his/her/their sipature(s) on the instrument the person(s), or the entity
upon behalf
of which the perso,n(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seat.
Signature
(Seal)
Exhibit Q-6
LA\1906082.6
EXHIBIT
TO
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF APPURTENANT PROPERTY
[see attached]
LA\1906082.6 Exhibit Q-7
EXHIBIT B
TO
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF ACCESS EASEMENT AREA
[see attached]
LA\1906082.6 Exhibit Q-8
EXHIBIT C
TO
ACCESS EASEMENT AND LICENSE AGREEMENT
LEGAL DESCRIPTION OF LICENSE AREA
[see attached]
LA\ 1906082.6 Exhibit Q-9
EXHIBIT R
PRELIMfNARY TITLE REPORT — OWNER'S POLICY
[see attached]
LA\1906082.6 Exhibit R- I
ReNu Resources - Resolution No. 9862
See black binder — back-up
information/agreement
--------------------------------------------------------
(De6orah Juarez
Records Wanagement Assistant
City of Vernon - City Crerk:s Office
4305 Santa Te Avenue
Vernon, CA 90058
(323)583-8811