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Resolution No. 2015-021*PLEASE REFER TO RESOLUTION NO.2016-04 FINAL DOCUMENTS (PDFs Received) FOR 3200 FRUITLAND (PECHINEY) - FINAL ASSIGNMENT AND ASSUMPTION - FINAL EDI AGREEMENT - FINAL ADDED FACILITIES AGREEMENT - FINAL JOINT CLOSING INSTRUCTIONS - FINAL ESCROW AGREEMENT - FINAL BUYER'S SETTLEMENT STATEMENT - FINAL CITY -OWNER SETTLEMENT STATEMENT RESOLUTION NO. 2015-21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND PI FRUITLAND, LLC FOR PROPERTY LOCATED AT 3200 FRUITLAND AVENUE WHEREAS, on March 22, 2006, the City Council of the City of Vernon ("the City") adopted Resolution No. 8995, as amended by Resolution Nos. 9030 and 2015-17 on May 3, 2006 and April 7, 2015, approving a Standard Offer, Agreement and Escrow Instructions and Addendum (the "Agreement") with Pechiney Cast Plate, Inc. ("Pechiney") for the purchase of property located at 3200 Fruitland Avenue (the "Property"); and WHEREAS, the City wishes to assigns its right, title and interest in, to and under the Agreement to PI Fruitland, LLC; and WHEREAS, the City and PI Fruitland, LLC desire to enter into an agreement regarding assignment and assumption of purchase and sale agreement for the Property. 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 above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the Agreement regarding Assignment and Assumption of Purchase and Sale Agreement with PI Fruitland, LLC ("the Agreement"), in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Agreement attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the Deputy City Clerk, to send a fully executed Agreement to PI Fruitland, LLC. SECTION 7: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 218t day of April, 2015. ATTEST: aria E. yala City Clerk / APPROVED AS TO FORM: t� �- A-r Hema Patel, CitIkAtorney Michael McCormick Title: Mayor / _ - - 3 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I Maria E . Ayala City Clerk /-PF,r^t:; City J:jl�pf the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2015-21, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, April 21, 2015, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this Z.7-1KAday of April, 2015, at Vernon, California. (SEAL) aria E. yala City Clerk / . aquty City-C-1e-rk-c, - 4 - DLA Draft 4.14.15 AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT This AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of April _, 2015 (the "Effective Date"), by and between City of Vernon ("City") and PI Fruitland, LLC a Delaware limited liability company ("PI"). RECITALS A. City, as buyer, and Pechiney Cast Plate, Inc., as seller ("Seller"), are parties to that certain Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate dated as of March 20, 2006, with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of June 15, 2006 ("First Amendment", together with the Original Agreement and Addendum, collectively the "Purchase Agreement"). A copy of the Purchase Agreement is attached hereto as Exhibit A. B. Seller owns fee simple title to certain real property located in Vernon, California and described more particularly in the Purchase Agreement (the "Property"). C. Pursuant to the terms and conditions of the Purchase Agreement, City has agreed to buy, and Seller has agreed to sell to City, the Property. E. City wishes to assigns its right, title and interest in, to and under the Purchase Agreement to PI, excluding certain items as more specifically set forth herein. F. All capitalized terms not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement. AGREEMENT For good and valuable consideration, the receipt of which is hereby acknowledged, PI and City hereby agree as follows: 1. Assi ninent. City agrees to assign and transfer to PI all of City's rights, obligations and interest as "Buyer" in, to, under and pursuant to the Purchase Agreement, except as provided in Sections 7 and 8 below. 2. Assumption of Obligations. PI agrees to accept the assignment and assume all the obligations, duties, responsibilities and liabilities of City as `Buyer" under the Purchase Agreement, except as provided in Sections 7 and 8 below. Purchase Price and Deposit. 3.1 Price. The total purchase price to be paid by PI to City for the assignment of the Purchase Agreement shall be $21,775,000, paid in immediately available cash pursuant hereto. WEST\255751754.5 DLA Draft 4,14.15 3.2 Deposit. Within three (3) business days following the Effective Date, PI shall deposit $250,000 (the "Deposit"), and PI and City shall deposit fully executed counterparts of this Agreement, with Chicago Title Company, Attn: Mike Slinger (the "Escrow Agent"). 3.3 Maintenance of Deposit. The Escrow Agent shall cause the Deposit to be placed in an insured, interest -bearing account acceptable to PI and City (the "Deposit Escrow") within one (1) business day following receipt of the same. Any interest earned on the funds in the Deposit Escrow shall be retained therein and added thereto (and the term "Deposit" as used herein shall mean the Deposit plus any additional funds deposited therein and all interest earned thereon). 3.4 Balance of Purchase Price. PI shall deliver to Escrow Agent the balance of the Purchase Price no later than 9:00 a.m. Los Angeles time on the Closing Date, which upon the Closing shall be disbursed by Escrow Agent to City. 3.5 Failure to Deliver Deposit. If PI fails to deposit the Deposit or other amounts owing pursuant hereto with the Escrow Agent strictly as and when contemplated herein, City shall have the right to terminate this Agreement by delivering written notice thereof to PI. 4. Due Diligence Period; Restrictions, Termination Right. 4.1 Due Diligence Period. PI shall have the period commencing on the Effective Date and ending at 5:00 p.m. Los Angeles time on May 26, 2015 (the "Due Diligence Period"), to review information relating to the Property and inspect the Property and to conduct such tests and investigations as it deems advisable in order to determine that the Property is acceptable to Pl. For this purpose, City has provided to PI access to a website maintained by City's counsel wherein information regarding the Property is maintained by City. City makes no representations or warranties about the truth, accuracy or completeness of any such or other materials provided to PI. PI shall have the right to terminate this Agreement, at any time prior to the end of the Due Diligence Period, by notice given to City if, during the Due Diligence Period, PI, in its sole and absolute discretion, is not satisfied with the Property for any or no reason whatsoever. If PI so terminates this Agreement, neither party shall have any further obligations or liabilities to the other hereunder at law or in equity except for those rights and obligations that expressly survive the expiration or termination of this Agreement and the Deposit shall be returned to PI. If PI fails to give any such notice of termination prior to the expiration of the Due Diligence Period, PI will be deemed to have accepted the Property, waived its right to terminate, and agreed to proceed to Closing in accordance herewith, at which point the Deposit shall become non-refundable, except as otherwise provided herein. PI acknowledges that the "Contingency Period" under the Purchase 2 WES71255751754.5 DLA Draft 4.14.15 Agreement has lapsed and that City, as buyer thereunder, has no right to terminate the Agreement based on the results of any inspection or analysis undertaken during the Contingency Period thereunder. As such, PI further acknowledges and agrees that City is not obligated to, nor does it intend to, cure any perceived or later discovered deficiencies with respect to the Property, including without limitation any deficiencies in title, as may be revealed by any survey, or otherwise. PI is taking by assignment the Purchase Agreement, and purchasing the Property, AS -IS, with all faults and defects, subject to and in accordance with the Purchase Agreement. The foregoing shall not however limit PI's right to terminate the Agreement prior to the expiration of the Due Diligence Period in accordance herewith. 4.2 Due Diligence Restrictions. Notwithstanding the foregoing, in no event shall (a) PI's entry onto the Property disrupt. or disturb the on -going operation or rights of Seller, or (b) PI or its agents, representatives or consultants drill or bore on or through the surface of the Property (or any part thereof), or conduct any other invasive investigation, including, without limitation, conducting a "Phase II" environmental assessment, without City's prior written consent, which consent may be given or withheld in City's sole and absolute discretion. PI shall deliver any request for entry on the Property to City no less than two (2) business days prior to entry, which request shall include the identity of the company or party who will perform the inspections, tests or investigations and the proposed scope of the inspections, tests or investigations. PI shall afford City an opportunity to have a representative of City present to accompany the party undertaking such inspections, tests or investigations. After making any tests, inspections or investigations, PI shall promptly restore the Property to as near the condition that existed prior to making such tests and inspections as reasonably possible (which obligation shall survive the Closing or any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13). Prior to PI entering the Property to conduct any inspections, tests or investigations, PI shall cause each of its contractors and agents to maintain (and shall deliver to City evidence thereof), at no cost or expense to City, general liability insurance, from an insurer reasonably acceptable to City, in the amount of Two Million Dollars ($2,000,000) combined single limit for personal injury and property damage per occurrence, such policies to name City and Seller as additional insured parties, which insurance shall provide coverage against any claim for personal liability or property damage caused by PI or its agents, representatives or consultants in connection with such inspections, tests and investigations. PI shall promptly deliver to City copies of all non-proprietary reports, studies and results of tests, inspections and investigations obtained or conducted by PI with respect to the Property (which obligation shall survive any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13). 3 WEST\255751754.5 DLA Draft 4.14.15 4.3 Purchase Agreement. Notwithstanding anything to the contrary herein, PI acknowledges and agrees that all information disclosed to it by City, and all activities conducted hereunder in connection with its due diligence, are subject to the terms and conditions of the Purchase Agreement. To the extent of any conflict between the terms of this Section 4 and the terms of the Purchase Agreement, the provisions which are most restrictive with respect to the due diligence activities shall govern. 4.4 Confidentiality. From the Effective Date until Closing, PI agrees (a) to keep all studies, reports, test results and other information concerning the Property furnished to or obtained by PI in connection with this Agreement confidential and not to disclose or reveal any such matters to any person other than PI's representatives who are actively and directly participating in the evaluation of the Property or who otherwise need to know the information for purposes of evaluating the Property; and (b) not to use the information for any purpose other than in connection with PI's evaluation of the Property. The provisions of this Section 4.4 shall survive any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13, but shall be of no further force or effect following a Closing. 4.5 Contacts with Third Parties. PI shall obtain City's prior approval of any contact made by PI, its employees, agents, representatives, contractors or consultants with a third party with a contractual relationship with City with respect to the Property (including Seller), as well as any governmental authority or adjacent property owner contacted or to be contacted with respect to the Property ("Third Parties"). PI shall afford City or its representative(s) an opportunity to be present at any such interview or meeting with such Third Parties (including a meeting or interview conducted by phone). PI shall copy City on all material correspondence with the Third Parties. PI shall not be obligated to obtain City's prior approval to contact governmental authorities (a) to determine the zoning and land use restrictions applicable to any of the Property, or (b) for background information necessary to obtain Phase I environmental reports. 4.6 Indemnity. PI shall keep the Property free from all liens created by or through PI, and shall indemnify, defend, and hold harmless City, Seller and their respective members, managers, partners, officers, directors and shareholders, as the case may be, and each of their respective members, managers, partners, officers, directors, shareholders, agents, employees and attorneys, and their respective successors and assigns (collectively, the "Indemnified Parties"), from and against all claims, actions, losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees and costs) incurred, suffered by, or claimed against the Indemnified Parties, or any of them, by reason of any damages to the Property or injury to persons caused by any entry or activities upon the Property by PI and/or its agents, employees, representatives, 4 WEST\255751754.5 DLA Draft 4.14.15 contractors or consultants, or arising out of or resulting from PI's due diligence investigation of the Property, including the inspections described under this Section 4; provided, however that such indemnification obligations shall not include any damage or injury to the extent the same shall arise (i) from the negligence or intentional misconduct of an Indemnified Party, or (ii) out of the discovery of a pre-existing condition with respect to the Property. The provisions of this Section 4.6 shall survive the Closing or any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13. 5. Representations, Warranties and Covenants. 5.1 In order to induce PI to enter into this Agreement, City hereby represents and warrants to PI as follows: 5.1.1 Attached hereto as Exhibit A is a true, correct and complete copy of the Purchase Agreement. Other than as described herein, the Purchase Agreement has not been amended, assigned, or modified in any respect, and remains in full force and effect. 5.1.2 All representations and warranties made by City in the Purchase Agreement were true, correct and complete as of the execution date thereof, and remain true, correct and complete as of the date hereof. 5.1.3 City has not received from Seller written notice of any default by City under the Purchase Agreement, and to City's actual knowledge, City is not in default in any material respect under the Purchase Agreement. City shall promptly provide PI with copies of all notices received by City under the Purchase Agreement. 5.2 From and after the Effective Date, City will not enter into any further amendments, modifications or supplements to the Purchase Agreement with Seller, nor will City terminate, or knowingly waive any material rights under, the Purchase Agreement, or knowingly grant its consent or approval to any matter which is subject to its consent or approval under the Purchase Agreement, in all cases without PI's prior written approval (not to be unreasonably withheld, conditioned or delayed). 5.3 In order to induce City to enter into this Agreement, PI hereby represents and warrants to City as follows 5.3.1 PI is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Delaware. PI has full right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby; the person signing this Agreement and any of the other documents on behalf of PI has full power and authority to bind PI; and when executed by PI, this Agreement shall be binding and enforceable against PI WEST'a55751754.5 DLA Draft 4.14.15 in accordance with its terms, and upon PI's execution of any other documents contemplated herein, they shall be binding and enforceable against PI in accordance with their terms. 5.3.2 PI is in compliance with the requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25, 2001) (the "Order") and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury ("OFAC") and in any enabling legislation or other Executive Orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the "Orders"). PI is and has always been in compliance with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act"). PI: (a) is not listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the "Lists"); (b) has not been determined by competent authority to be subject to the prohibitions contained in the Orders; and (c) is not owned or controlled by, nor acts for or on behalf of, any person or entity on the Lists or any other person or entity that has been determined by competent authority to be subject to the prohibitions contained in the Orders. 5.3.3 PI understands that the consummation by PI of the transactions contemplated herein and/or under the Purchase Agreement are not contingent upon the receipt of any financing or other extensions of credit by PI. 5.4 If and to the extent the Purchase Agreement contemplates a time period for City, as buyer thereunder, to respond to a request from Seller, City shall promptly provide a copy of the subject matter for approval to PI. PI shall then respond at least one (1) business day prior to the deadline under the Purchase Agreement. If PI does not so respond, City reserves the right to decide how to respond to Seller in its sole discretion. PI will be bound by any such decision of City in such instance. 6. Prior Dispute. City has informed PI, and PI acknowledges that City and Seller were previously in a dispute regarding, among other things, Seller's performance under the Purchase Agreement. In order to resolve such dispute, City and Seller entered into that certain Second Amendment to Standard Offer, Agreement and Escrow Instructions for the Purchase of 0 wesn255751754.5 DLA Draft 4.14.15 Real Estate, a copy of which is included in Exhibit A attached hereto (the "Second Amendment"). PI has reviewed the Second Amendment and hereby approves of and consents to the same, and agrees to accept and assume the same and be bound thereby as of the assignment of the Purchase Agreement by City to PI. 7. Reserved Rights. PI acknowledges that the Second Amendment contemplates the (a) release of the deposit by the Seller to the City (in the approximate amount of $600,000) at the time of closing under the Purchase Agreement and (b) payment after the closing under the Purchase Agreement of certain additional amounts (in the approximate amount of $1,426,915) (the "Seller Payments"). City reserves all rights with respect to the Seller Payments, and PI shall not be entitled to any portion of the Seller Payments. If and to the extent PI receives the same from Seller (or as a disbursement from escrow under the Purchase Agreement), PI shall hold the same in trust for the benefit of City and shall within one (1) business day after receipt thereof cause the same to be delivered to City. The provisions of this Section 7 shall survive the Closing or any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13. 8. Financial Assurance: Sewer Credits. 8.1 Concurrently with the delivery of the Purchase Price, PI shall deliver to Escrow Agent an amount equal to $1,250,000 (the "Financial Assurance"). The Financial Assurance is provided by PI in accordance herewith pursuant to the expectation of the City that PI (and/or its tenant) will utilize at the Property an average minimum, for a trailing 12-month period, of (a) 3.3 mega watts of electrical power on or before January 1, 2019, and (b) 4.8 mega watts of electrical power on or before January 1, 2021, and (c) 8 mega watts of electrical power on or before January 1, 2023 (each of (a) through (c) being a "Consumption Hurdle"). If PI and/or its tenant achieves the Consumption Hurdle by the specified date applicable thereto, and City confirms the same in writing, then 1/3rd of the Financial Assurance (plus a pro rata portion of interest accrued on the Financial Assurance) shall be disbursed by Escrow Agent to PI pursuant to a written instruction mutually executed by PI and City. If a Consumption Hurdle is not achieved by the applicable date, then 1/3rd of the Financial Assurance (plus pro rata portion of the interest accrued on the Financial Assurance) shall be deemed fully earned by, and due and payable to City, and disbursed by Escrow Agent to City. 8.2 Under the Second Amendment, Seller has agreed to allocate 740 sewer credit units to the Property. Seller agreed to such allocation based on a request from PI to City which City then negotiated with Seller. Absent the Second Amendment, approximately 501.8 units would have been allocated to the Property. The allocation under the Second Amendment represents an increase of approximately 239 units. City reserves all rights to the use of such 239 units. City has provided to PI the economic terms upon which City is willing to relinquish control over the 239 additional units. PI is considering the same, in consultation with its intended tenant and the parties agree to discuss the same prior to the expiration of the Due 7 WES71255751754.5 DLA Draft 4.14.15 Diligence Period. If the parties have not been able to reach agreement with respect to PI's purchase of the additional 239 units prior to the expiration of the Due Diligence Period, City reserves the right to dispose of the same as determined by City in City's sole and absolute discretion. 9. Closine. The closing of the assignment of the Purchase Agreement contemplated by this Agreement (the "Closing") shall be consummated on such date as may be mutually agreed upon by City and PI, but in no event later than June 11, 2015 (the "Closing Date"). For circumstances other than a default by PI (which is governed by Section 13.2 below), if a PI's Condition Precedent (as defined below) has not been satisfied or waived prior to the Closing Date, for any reason other than PI's default, PI may, as its sole right and remedy, terminate this Agreement, in which case this Agreement shall be of no further force or effect and the Escrow Agent shall, and is hereby instructed, without need for further instruction, to, return the Deposit to PI within one (1) business day of request therefor. For circumstances other than a default by PI (which is governed by Section 13.2 below), if a City's Condition Precedent has not been satisfied or waived prior to the Closing Date, for any reason other than City's default, City may terminate this Agreement, in which case this Agreement shall be of no further force or effect and the Escrow Agent shall, and is hereby instructed to, return the Deposit to PI. Closing shall take place at the offices of DLA Piper LLP (US) in downtown Los Angeles; provided that the closing documents may be sent to the Escrow Agent for receipt prior to the Closing Date, accompanied by Closing instructions for the Escrow Agent. At the Closing, City shall assign to PI by delivery of the Assignment (defined below) and PI shall release the Purchase Price to City subject to the other conditions stated herein. 10. City's Conditions Precedent. The following shall be conditions precedent to City's obligation herein to assign the Purchase Agreement to PI as provided herein ("City's Conditions Precedent"): 10.1 The City Council of the City of Vernon shall have approved (a) this Agreement, and (b) such other matters as are related hereto as determined necessary in the discretion of City staff. City intends to submit such matters for approval by the City Council on April 21, 2015; 10.2 As of the Closing Date, PI's representations and warranties contained herein shall be true and correct in all material respects and PI shall not be in default of any material obligation herein; 10.3 PI shall have executed and delivered to the Escrow Agent at least one (1) business day prior to the Closing Date, the following: 10.3.1 The Assignment and Assumption of Purchase Agreement in the form attached hereto as Exhibit B (the "Assignment"); 10.3.2 The Power Purchase Agreement in a form to be negotiated in good faith by the parties during the Due Diligence Period (upon agreement to the form, this Agreement will be amended to attach such form as Exhibit C attached hereto, the "Power Purchase Agreement"); and WES71255751754.5 DLA Draft 4.14.15 10.3.3 All documents required to be executed by the `Buyer" under the Purchase Agreement for purposes of effectuating the Closing thereunder. 10.4 PI shall have delivered to the Escrow Agent, on or prior to 9:00 a.m. (Los Angeles time) on the Closing Date, for disbursement as directed hereunder, all cash and/or other consideration and/or other immediately available funds due from PI in accordance with this Agreement, including without limitation the Purchase Price and the Financial Assurance. The conditions set forth in this Section 10 are solely for the benefit of City and may be waived only by City. City shall, at all times prior to the termination of this Agreement, have the right to waive any of such conditions. 11. PI's Conditions Precedent. The following shall be conditions precedent to PI's obligation herein to accept and assume the Purchase Agreement from City ("PI's Conditions Precedent"): 11.1 As of the Closing Date, City's representations and warranties contained herein shall be true and correct in all material respects and City shall not be in default of any material obligation herein; 11.2 The conditions to closing under the Purchase Agreement shall have been satisfied or waived in accordance therewith; and 11.3 City shall have executed and delivered to the Escrow Agent on or prior to 9:00 a.m. (Los Angeles time) on the Closing Date, the Assignment and the Power Purchase Agreement. The conditions set forth in this Section 11 are solely for the benefit of PI and may be waived only by PI. PI shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. 12. Exclusivity. City covenants and agrees that until the earlier of (a) the Closing or (b) the termination of this Agreement ("Exclusivity Period"), City will not directly or indirectly, solicit offers for, knowingly encourage, negotiate, discuss, or enter into any agreement, understanding or commitment regarding, a possible sale by the City of the Property or assignment by the City of the Purchase Agreement with any other party. To enforce City's compliance herewith prior to the Closing, PI may pursue equitable relief in the form of an injunction. 13. Default. 13.1 PI's Remedies For City's Default. If, as of the Closing Date, (a) each of the City's Conditions Precedent as set forth in this Agreement have been satisfied or waived by City, and (b) City fails or refuses to timely assign the Purchase Agreement to PI in accordance with the terms and conditions of this Agreement, or otherwise fails to perform or otherwise breaches its material obligations hereunder, and City has failed to cure such breach or 9 WESTU55751754.5 DLA Draft 4.14.15 default within ten (10) business days following receipt of written notice thereof, except on account of a breach or default hereunder by PI, PI may elect one of the following remedies (and PI hereby waives any and all other rights and remedies against City): (i) terminate PI's obligations under this Agreement by written notice to City and receive a full refund of the Deposit, or (ii) bring an action for specific performance of this Agreement, which action shall be brought, if at all, no later than ninety (90) days after the Closing Date. Except as provided for above, PI hereby waives its right to bring any action for damages (including without limitation actual, consequential, special and punitive damages) arising out of or relating to this Agreement or City's default hereunder. PI's election to proceed with the Closing with actual knowledge of a breach or default by City hereunder as of or prior to the Closing (including without limitation a breach of any representation or warranty of City herein) shall conclusively constitute PI's waiver of any and all claims against City on account thereof. 13.2 City's Remedies For PI's Default. If, as of the Closing Date, (a) each of the PI's Conditions Precedent as set forth in this Agreement have been satisfied or waived, and (b) PI fails or refuses to timely consummate the Closing in accordance with the terms and conditions of this Agreement, except on account of a breach or default hereunder by City, City may elect, as City's sole remedy, to terminate City's obligations under this Agreement by written notice to PI and keep the Deposit as liquidated damages. The foregoing provision shall not limit City's remedies with respect to certain obligations of the PI which are stated to survive the termination of this Agreement and/or which are expressly stated not to be subject to this Section 13.2. The parties hereby agree that the amount of the Deposit shall be and constitutes liquidated damages. PI and City acknowledge and agree that it is difficult or impossible to determine the actual damages City would suffer from PI's breach hereof and that the agreed upon liquidated damages are not punitive or penalties and are just, fair and reasonable. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF CITY'S DAMAGES AND AS CITY'S EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST PI IN THE EVENT THE CLOSING IS NOT CONSUMMATED BY REASON OF A BREACH OR DEFAULT BY PI UNDER THIS AGREEMENT. City hereby waives its right to bring any action for damages (including without limitation actual, consequential, special and punitive damages) arising out of or relating to this Agreement or PI's default hereunder, except an action to recover the Deposit following a PI's default and subject to City's rights to exercise all available remedies at law or equity with respect to matters which are expressly excluded herein from the limitations of Section 13. 10 WES1\255751754.5 DLA Draft 4.14.15 Initials: F1 U1ty 13.3 Survival. The provisions of this Section 13 shall survive any termination of this Agreement. 14. Brokerage. City and PI each represent and warrant to the other that they have dealt with no other real estate brokers with respect to the transaction contemplated by this Agreement other than John McMillan of Cushman & Wakefield ("Broker") who will be paid a commission at Closing, which commission shall be paid pursuant to one agreement with City (City making such payment thereunder) and one agreement with PI (PI making such payment thereunder), and shall not be credited against, subtracted from or otherwise affect the Purchase Price paid by PI to City. City and PI each agree to indemnify, defend and hold the other harmless from and against any claim or liability, as well as court costs and legal fees, arising out of claims contrary to the foregoing representations and warranties by a party claiming to have dealt with the indemnifying party. Notwithstanding anything to the contrary contained herein, the mutual indemnities contained in this Section 14 shall survive Closing or any termination of this Agreement and shall not be subject to the limitations on remedies of City or PI set forth in Section 13.2. 15. Miscellaneous. 15.1 Business Days. References herein to a "business day" means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in the state in which the Property is located are authorized or obligated by law or executive order to be closed. If the last day for performance of any obligation or exercise of any right falls on a day other than a business day, then the last day for such performance or exercise of such right shall be extended to and expire on the next succeeding business day. 15.2 Time. Time is of the essence in the performance of each party's obligations hereunder. 15.3 Attorneys' Fees. If any party shall bring an action or proceeding against the other party by reason of the breach or alleged violation of any term or obligation hereof, or for the enforcement or interpretation of any provision of this Agreement, the prevailing party in such action or proceeding shall be entitled to its reasonable costs and expenses of suit, including, but not limited to reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to judgment, and without regard to any other limitation on remedies provided herein. 15.4 No Waiver. Subject to the deemed approvals under this Agreement, no waiver by any party of the performance or satisfaction of any covenant or condition shall be valid unless in writing, nor shall it be considered to be a waiver by such party of any other covenant or condition hereunder. 15.5 Entire Agreement. This Agreement contains the entire agreement between the parties regarding the Property and the Purchase Agreement and 11 WESTV55751754.5 DLA Draft 4.14.15 supersedes all prior agreements, whether written or oral, between the parties regarding the same subject. This Agreement may only be modified by subsequent written agreement signed by the party to be charged. 15.6 Further Assurances. Before and after Closing, each party shall execute and deliver to the other party all such documents that such other party may reasonably require to effect, confirm or otherwise perfect the transfer of property and other covenants and agreements of the parties contemplated by this Agreement. 15.7 Successors. This Agreement shall bind and inure to the benefit of the parties hereto and to their respective successors and assigns; provided, however, that none of the rights or obligations of PI hereunder shall be transferred or assigned by PI without the prior written consent of City, which consent may be granted or withheld in City's sole and absolute discretion. No permitted assignment or transfer by PI shall relieve PI from its obligations hereunder, it being understood that upon any assignment or transfer PI shall remain liable to City for the performance of the obligations of PI hereunder. Notwithstanding the foregoing, PI shall have the right to assign its rights and obligations under this Agreement to an entity owning and controlling, owned and controlled by, or under common control and ownership with PI, which assignment shall occur no later than five (5) business days prior to the date of Closing hereunder. 15.8 Change in Property. If and to the extent the risk of loss, due to casualty or condemnation, or other change to the Property is borne by City as buyer under the Purchase Agreement, PI shall also bear the same risk . As such, unless City has a right to terminate in relation to the occurrence of some event or condition first arising hereafter, PI acknowledges and agrees it shall have no right to terminate in relation to such event, circumstance or condition. If City has a right to terminate, it shall not exercise such right without first having obtained the consent of PI (not to be unreasonably withheld, conditioned or delayed), and if PI so consents and City so terminates the Purchase Agreement, this Agreement shall be of no further force or effect and the Deposit shall be returned to PI. If PI does not consent, City will not terminate the Purchase Agreement, and PI shall be bound to close the transaction contemplated hereby and under the Purchase Agreement in accordance herewith and therewith. The terms of Section 5.4 herein shall govern with respect to the giving of any such consent by PI in relation hereto. 15.9 Counterparts and Effectiveness. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement, and this Agreement shall only be effective if a counterpart is signed by both City and PI. 15.10 Severability. In the event any provision of this Agreement shall be held to be invalid or unenforceable by any court of competent jurisdiction, such 12 WEST\255751754.5 DLA Draft 4.14.15 holding shall not invalidate or render unenforceable any other provision hereof. 15.11 Recording. Neither this Agreement nor any memorandum hereof shall be recorded or filed in the Office of the County Recorder of the county in which the Property is located, or in any other public records of any jurisdiction, and any attempt to do so may be treated by the other party as a material breach of this Agreement. 15.12 No Third Party Beneficiaries. City and PI agree that it is their specific intent that no broker or any other third party, including Seller, shall be a party to or a third party beneficiary of this Agreement or the escrow; and further that the consent of a broker or other third party, including Seller, shall not be necessary to any agreement, amendment, or document with respect to the transaction contemplated by this Agreement. This shall not, however, affect the rights of any party pursuant to a separate agreement. 15.13 Confidentiality. The parties agree that the terms and conditions of this Agreement are confidential and shall not be disclosed to any third parties, except for the parties' respective principals, employees, agents (including without limitation Escrow Agent), and consultants (including without limitation attorneys, accountants, and brokers), lenders and prospective lenders having a legitimate need for the information requested, and except for disclosures required by law or normally provided by City in connection with City's governmental practices and obligations, or as and to the extent required under the Purchase Agreement for purposes of effectuating the assignment of the Purchase Agreement. The provisions of this Section 15.13 shall survive any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13, but shall expire and be of no further force or effect upon a Closing. 15.14 Construction. The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. Section headings of this Agreement are solely for convenience of reference and shall not govern the interpretation of any of the provisions of this Agreement. References to "Sections" are to Sections of this Agreement, unless otherwise specifically provided. All references made (a) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (b) in the singular or plural shall be deemed to have been made in all such genders, and (c) in the singular or plural shall be deemed to have been made, respectively, in the plural or singular as well. 15.15 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California, without regard to conflicts of law principles. 13 WES71255751754.5 DLA Draft 4.14.15 15.16 Police Powers. PI acknowledges and agrees that the City, by its execution, delivery and performance of the obligations herein, is acting solely in its capacity as the current "buyer" under, and assignor hereunder of, the Purchase Agreement. Departments, agencies and other divisions of the City ("City Departments"), acting in their regulatory, policing, permitting and/or other governmental capacity, are not bound hereby. Without limitation thereto, it is understood and agreed that nothing in this Agreement expressly or implicitly imposes any duties or obligations on any such City Departments, including any obligation of good faith and/or fair dealing, either in the performance of their responsibilities under local, state or federal law or otherwise. PI agrees that PI's acquisition, development and/or use of the Property may require certain permits and approvals from such City Departments. City is under no obligation to cause the City Departments to issue the same, nor are such City Departments compelled in any manner in relation hereto to issue the same. In the performance of its governmental functions, a City Department's actions, inactions, delay, imposition of conditions to any approval, requirements for the payment of any fees or expenses or the like shall not constitute a default or breach by City hereunder. [Signatures on Next Page] 14 WEST\255751754.5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. "CITY": CITY OF VERNON By: Name: Its: Approved as to form: DLA Piper LLP (US), Special Counsel to City [Signatures continue on next page] S-1 WES71255751754.5 «phi: PI FRUITLAND, LLC, a Delaware limited liability company By: Name: Its: S-2 WEST@55751754.5 EXHIBIT A PURCHASE AGREEMENT [copies attached hereto] Exhibit A-1 WESTV55751754.5 RESOLUTION NO. 2015-17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SECOND AMENDMENT TO STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR THE PURCHASE OF REAL ESTATE BY AND BETWEEN THE CITY OF VERNON AND PECHINEY CAST PLATE, INC, FOR PROPERTY LOCATED AT 3200 FRUITLAND AVENUE WHEREAS, on March 22, 2006, the City Council of the City of Vernon ("the City") adopted Resolution No. 8995 approving a Standard Offer, Agreement and Escrow Instructions and Addendum (the "Agreement") with Pechiney Cast Plate, Inc. ("Pechiney") for the purchase of property located at 3200 Fruitland Avenue (the "Property"); and WHEREAS, on May 3, 2006, the City Council of the City of Vernon adopted Resolution No. 9030 approving a First Amendment to the Standard Offer, Agreement and Escrow Instructions ("First Amendment") with Pechiney for the purchase of the Property; and WHEREAS, the City and Pechiney desire to amend the Agreement and First Amendment to resolve disputes and disagreements that have arisen between the City and Pechiney (collectively, the "Parties") regarding the Agreement, including claims by each of the Parties that the other has defaulted on its obligations under 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 above recitals are true and correct•. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the second Amendment to the Standard Offer, Agreement and Escrow Instructions with Pechiney Cast Plate, Inc. ("the Amendment"), in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Amendment for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Amendment attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the Deputy City Clerk, to send a fully executed Amendment to Pechiney Cast Plate, Inc. - 2 - SECTION 7: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 7th day of April, 2015. ATTEST; Ana aia / Deputy City Clerk APPROVED AS TO FORM: +)�HemaLpAgell, City Attorney Name: W. Michael McCormick Title: Mayor / �t STATE OF CALIFORNIA COUNTY OF LOS ANGELES I, Ana Sarcia ss itp—Cie�c / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2015-17, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, April 7, 2015, and thereafter was duly signed by the Mayor or Mayor Pro -Tam of the City of Vernon. Executed this 'a day of April, 2015, at Vernon, California. (SEAL) - 4 - Clerk Second Amendment to Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate THIS SECOND AMENDMENT TO STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE (this "Second Amendment') is made and entered into as of April 7, 2015 (the "Effective Date"), by and between the City of Vernon ("Buyer"), and Pechiney Cast Plate, Inc., a Delaware corporation ("Seller"). Buyer and Seller are each referred to herein as a "Party" and are collectively referred to as the "Parties". j KOO-fm WHEREAS, the Parties are parties to that certain Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 20, 2006 ("Original Agreemcnt"), with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that First Amendment to the same dated as of. June 15, 2006 ("First Amendment", together with the Original Agreement and Addendum, collectively the "Original PSA", and together with this Second Amendment, the "PSA'); WHEREAS, certain disputes and disagreements have arisen between the Parties regarding the Original PSA, including claims by each Party that the other has defaulted on its obligations under the Original PSA; and WHEREAS, the Parties wish to resolve their disputes and disagreements by amending the Original PSA as set forth in this Second Amendment. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Original PSA. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and as contemplated by the recitals hereinabove (which recitals are incorporated into this Second Amendment by this reference and made a part hereof), Seller and Buyer agree as follows: 1. Prope�y. 1.1, Prong= to be Purchased by Buffer. Section 2.1 of the Original PSA is hereby amended by defining the "Property" as follows: "approximately 633,083 square feet of land generally depicted on Exhibit "A" attached hereto." Prior to the Closing Date (as defined herein), Seller shall apply for and seek to obtain a lot line adjustment ("LLA'j as more fully described in Secdon 1. below. The legal description set forth in the final, recorded LLA documents (the "LLA Documents") shall become the legal description of the Property and the Retained Property (as defined in Section 1.2 below) for all purposes. 089367.000006 802733312.40 1.2. Property to be Retained -b_y Seller. With respect to the property depicted as the "Retained Property" on Exhibit " ", it is hereby agreed that such Retained Property is no longer part of the Property being conveyed to Buyer under the PSA, and that Seller shall retain the same (and Seller may sell same to another person or entity before or after the Closing Date), The Retained Property will consist of approximately 552,831square feet of land, the legal description of which shall also be established by the final, recorded LLA Documents and shall become the legal description of the Retained Property for all purposes. 1.3. Union Pacific Raihnad Land. The Property shall also include the Buyer UP Land (as defined in Section below), and the Retained Property shall also include the Seller UP Land (as also defined in Section 4.1 below). 1.4. Lot Line Adjustment. - Seller has previously submitted to the City of Vernon Public Works, Water and Development Service Department, formerly known as the City of Vernon Community Services and Water Department (the "CWSD') (as defined herein) an application for the LLA, which has been approved by the CWSD. All of the LLA Documents have been approved by the CWSD and are being held by Seller pending the execution of this Second Amendment, Promptly after the Effective Date. Seller will record the LLA Documents. The recording fees for the LLA Documents shall be advanced by Seller, and one-half (1/2) of the cost thereof will be reimbursed by Buyer at the Closing. In addition, at the Closing, one-half (1/2) of the cost of the survey obtained by Seller in connection with the LLA will be reimbursed by Buyer. 2. Sewer Capmby Units: Storm Water Drainage. 2.1. Section 2.3 of the Original PSA is hereby amended to provide that the sewer capacity water discharge units currently allocated to the Property (prior to the effect of this Second Amendment) shall be divided as between Buyer and Seller as follows: seven hundred forty (740) units shall be allocated to Buyer and two hundred (200) units shall be retained by Seller. The sewer capacity water discharge units allocable to Buyer shall be conveyed to Buyer on the Closing Date at no additional cost or expense to Buyer and otherwise in accordance with Section of the PSA. 2.2. At Closing, Seller shall grant to Buyer an easement for the drainage of storm water through the underground water pipes and related facilities which are situated within the Retained Property and into a designated storm water outfall which is situated within the Retained Property (identified as Stormwatcr Outfall No. 8 in the Below -Grade Demolition Work Plan (as defined in Section 7.1 below)). The form of the easement agreement shall be as set forth in Exhibit "B" attached hereto. ONEW—M—TITT 3.1. Section 3.1 of the Original PSA is hereby amended by reducing the Purchase Price from $36,500,000 to $24,173,085 (including the cost of the Buyer UP Land 2 089367.000000 502733312.40 as set forth in Section 4 below). Buyer has previously deposited $26,200,000 into Escrow, of which $25,600,000 has previously been released to Seller, subject to the terms and conditions of the Original PSA, with the balance of $600,000 being held In Escrow. Accordingly, Section 26.16(d) of the Original PSA is hereby deleted. 3.2. The $600,000 which is presently held in Escrow, together with all interest which has and will accrue thereon prior to the Closing Date, is hereinafter be referred to as the "Remaining Dbposit," and shall be returned to Buyer by the Escrow Holder at the Closing. 3.3. As a result of the reduction in the Purchase Price set forth in Section 3.1 Seller will owe Buyer the amount of $1,426,915. At the Closing, Seller will execute in favor of Buyer an unsecured promissory note in the form attached hereto as Exhibit "G" (the "Promissory Note"). 4. UP Land. 4.1. Union Pacific Railroad ("UP'7 was the owner of certain land abutting the Property and the Retained Property along Boyle Avenue, consisting of approximately 11,149 square feet of land, as approximately depicted on Exh tib "A" (the "UP Land"). Each of Buyer and Seller shall ultimately own a portion of the UP Land with Buyer acquiring from Seller, on the Closing Date, that portion identified as the `Buyer UP Land" on Exhibit "A" (which shall be included in the Property after the ELA Documents have been recorded) and Seller acquiring that portion identified as the "Seller UP Land" on Exhibit "A" (which shall be included in the Retained Property after the LLA Documents have been recorded). 4.2. On or about May 21, 2014, Seller purchased the UP Land from UP for a purchase price of $349,470 plus closing costs (including the cost of a title insurance binder) and due diligence costs of approximately $11,500 for a total of $360,970. A portion of the foregoing amount ($242,697, which Is the cost of the UP Land allocable to the Buyer UP Land) is included in the computation of the revised Purchase Price as set forth in Section 3.1 above. 4.3. Prior to acquiring the UP Land, Seller conducted all due diligence that Seller determined to be necessary with respect to the UP Land, including environmental ("Phase II") testing. Seller provided Buyer with a copy of the "Phase IT' environmental report. Seller has informed Buyer that it has remediated the UP Land, at its expense, tq the same extent that Scaler has remediated the Property pursuant to the remediation provisions in the Below -Grade Demolition Work Plan (as defined below) and the Remediation Work Plan (as defined below). If Buyer desires to conduct any further due diligence regarding the Buyer UP Land and/or to do any additional remediation of Hazardous Substances on the Buyer UP Land (beyond the obligations required of Seller under the Below -Grade Demolition Work Plan and the Remediation Work Plan), Buyer may do so at its own expense. The Buyer UP Land will be conveyed by Seller to Buyer in its "as is" condition, without any representations or warranties whatsoever regarding the condition 08067.000000 802789812.40 5. 6. thereof, or otherwise, by quitclaim deed, subject to Seller's continuing obligations if any, with respect thereto under the Remediation Work Plan, the Below -Grade Demolition Work Plan and the PSA. Intentionally Omitted. Conditions to Cloipg.Qlosina. 6.1. The closing date shall be June 11, 2015, (the "Closing Date"). The parties may close earlier by mutual agreement. Any and all references in the Original PSA to the term "Expected Closing Date" are hereby replaced with the term "Closing Date". 61. Buver's Coed ors_ Preceda►tt. The following are closing conditions for the benefit of Buyer: 6.2.1, Conditions In Original PSA, Sections 91 (n) (o) and (n) of the Original PSA remain conditions to closing. All other conditions to closing set forth in Section 9.1 of the Original PSA have been satisfied; 6.2.2. LLA. The LLA Documents shall have been recorded. 6.2.3. The work described in the Below Grade Demolition Plan (as defined herein) and the PCB remediation work described in the Remediation Work Plan (as defined herein), as modified with the approval of the DTSC and/or the EPA jand, if required under Section 7.2 below, the approval of Buyer) shall have been completed in all material respects. The foregoing condition shall be deemed satisfied unless at least five (5) Business Days prior to the Closing Date, Buyer shall have delivered to Seller a written notice (the "Completion Notiee'l identifying that portion of the foregoing work which Buyer contends has not been completed in all material respects (the "Uncompleted Work"). Provided however, that the "deemed satisfaction" of such condition shall not relieve Seller from any liability to perform the Property Work as contemplated by Section 8.1 below. Buyer acknowledges AMEC has provided CWSD with a completion report, which CWSD has approved. It is understood that the Uncompleted Work is not intended to refer to immaterial discrepancies between the work required under the Below Grade Demolition Plan and the PCB remediation work described in the Remediation Work Plan to the extent that such discrepancies are identified in the completion report. The foregoing conditions are for the benefit of, and may be waived by Buyer. Buyer will exercise commercially reasonable and good faith efforts to cause those conditions within its reasonable control to be satisfied prior to the Closing Date. 6.3. Seller's Conditions Precedent. benefit of Seller: 4 080367.000006 602733312.40 The following are closing conditions for the 6.3.1. Buvar Performance. The delivery of all documents and due performance by Buyer of each and every undertaking and agreement to be performed by Buyer under the PSA. 6.3.2. Warranties. Each representation and warranty of Buyer under the PSA shall be true and correct in all material respects as of the Closing. Escrow Holder shall assume that this condition has been satisfied unless notification to the contrary in writing by any Party prior to the Closing, 6.3.3. Health Department Confirmation; Seller shall have received the written confirmation fYom the City of Vernon Health and Environmental Control Department, in a form and substance reasonably acceptable to Seller, that it has no jurisdiction over the remediation of the Property or the Retained Property (and that jurisdiction is presently held by the EPA and the DTSC), 6.3.4. Lam. The LLA Documents shall have been recorded. The foregoing conditions are for the benefit of, and may be waived by Seller. Seller will exercise commercially reasonable and good faith efforts to cause those conditions within its reasonable control to be satisfied prior to the Closing Date. The conditions set forth in Sections 6.2 and Q above are sometimes referred to Individually as a "Condition to Closing" and collectively as the "Conditions to Closing". If any Conditions to Closing remain unsatisfied (and unwaived) by the Closing Date, then the provisions of Section 11 of this Second Amendment shall apply. 6.4. The Parties agree that the condition set forth in Section 9.1(n) of the Original PSA shall be deemed to refer only to a Material Change which occurs after the Effective Date. 6.5. If and to the extent that Section 6.2.3 above is inconsistent with any other provision of the PSA, the terms of Section 6.2.3 shall control. In this regard, (a) the references to the Health Department in Sections 26.7(g). 26,7(h), 26.7(c),, 26.70 and 26.17 of the Original PSA are deemed deleted (b) any and all references in the Original PSA which provide that issuance of a Certificate of Closure by the Health Department is required or shall evidence completion of the Remediation Work are hereby deemed deleted and (c) Sections 26.7(g), 26.7(b) and 26.17 of the Original PSA are hereby further modified to delete any reference to timetables for performance of the Demolition Work or the Remediation Work. However, for clarification, nothing in this Second Amendment is intended to affect Seller's obligations under Section 26.7(d)(i) or ii) of the PSA, or the Seller's obligations under Section 26.7(d)(iii) of the PSA to provide a Title Policy without any exception for mechanics or materialmen's liens (or including a mechanics' lien endorsement). 089367.000006 802733312A0 6.6. Certain Covenants of Seller, 6.6.1. Seller agrees to use reasonable efforts to obtain the consent of the DISC and the EPA to permit Seller to provide "Implementation Reports" (as defined in that certain Imminent and Substantial Endangerment and Consent Order signed on June 29, 2010 by Seller and on July 6, 2010 by the DTSC at three different stages for the Property, being first when the work described in the Below -Grade Demolition Work Plan (as defined herein) insofar as it relates to the Property, but excluding any PCB remediation on the Property (the "Property Demolition Work") has been completed (to address PCB remediation), second when all other Property Remediation Work has been completed, other than groundwater remediation, and third when the groundwater remediation (if any) has been completed on the Property. 6.6.2. Seller will concprrently provide Buyer with a copy of any Implementation Reports which are submitted to the DTSC and/or the EPA. 6.6.3. Seller will use reasonable efforts to obtain a "comfort letter" from the DISC and/or the EPA with respect to the status of the Property Remediation Work as of the Closing Date, but the Closing Date shall not be delayed if Seller is unable to do so by that date. 6.6.4. Seller will (both prior to and aver the Closing Date) provide Buyer with copies of all reports and other pertinent written documentation (including results of any laboratory testing) with respect to the Property Demolition Work and the Property Remediation Work. 6.6.5. The terns, conditions and obligations under this Section 6.7 (other than the provisions of Section 6.7.3) shall survive the Closing. Annrovals, 7.1. Below -Grade Demolition Work Plan, Buyer confirms that in that certain letter agreement between Seller and Buyer dated July 25, 2013 it approved (and for the avoidance of doubt again hereby approves) that certain Below -Grade Demolition Work Plan dated May 23, 2006, as last revised on August 31, 2012, subject only to those supplemental conditions set forth on Exhibit "C" attached hereto (which collectively shall constitute the approved "Below -Grade Demolition Work Plan"). The work contemplated by the Below Grade Demolition Work Plan (excluding any PCB remediation on the Property, which is part of the Property Remediation Work defined below) is referred to herein as the "Property Demolition Work." 7.2. Remediation Work Plan. Buyer hereby approves that certain Remedial Action Plan dated June 28, 2012, as amended by an Addendum dated May 30, 2013 subject only to those supplemental conditions set forth on Exhibit "C" attached hereto (which collectively shall constitute the approved "Remediation Work Plan"). Any changes proposed by Seller to the Remediation Work Plan after the 089387.000000602733312.40 Effective Date shall be subject to the written approval of the EPA and/or the DTSC, and, if prior to the Closing Date and affecting the physical condition that the Property is required to be in at Closing in order to be in compliance with the Remediation Work Plan (as in effect on the Effective Date), the written approval of Buyer. The obligations of the Seller and the activities contemplated to be undertaken by Seller on the Property under the Remediation Work Plan (as in effect on the Effective Date) are sometimes collectively referred to herein as the "Property Remediation Work". 7.3. Restrictive Covenant. Buyer acknowledges and agrees that Section,7, of the Remediation Work Plan contemplates the recordation of a restrictive covenant against the Property to "prohibit residential development and use of ground water from the first water bearing unit within the Property's perimeter". Buyer agrees that Seller may, prior to or at Closing, record a restrictive covenant against the Property to that effect in the form of Exhibit "F" attached hereto, and that after the Closing Buyer will record such a restrictive covenant to that effect if and when required by the DTSC and/or the EPA. Buyer hereby approves the draft of the restrictive covenant in the form of Exhibit "F", which draft has been submitted by Seller to the DTSC -and the EPA. Seller will keep Buyer apprised of communications with the DTSC and the EPA which involve potential changes to such draft and Buyer hereby consents in advance to any such changes provided that the changes (a) do not materially and adversely affect the rights of any owner or any occupant of the Property to develop same, and (b) do not further restrict the permitted land use of the Property in any material respect, unless such changes have also been approved by Buyer which approval will not be unreasonably withheld. With respect to clause (a), it is understood and agreed that Buyer has agreed, pursuant to Sdotion 8.7 herein, to bear the costs of any engineering controls (subject to the limitations set forth herein). 7.4. The terms, conditions and obligations under this Section 7 shall survive the Closing. �,, 8.1. Seller has commenced the Property Demolition Work and the Property Remediation Work (collectively, the "Property Work') and Seller shall diligently and continuously (subject to delays caused by events of force majeure) perform the Property Work until completion and regulatory closure and in accordance with the provisions of the Below Grade Demolition Work Plan and the Remediation Work Plan, and after the Closing, subject to the provisions of the Access Agreement. 8.2. If conditions are discovered on or within the Property by Seller during the course of the Property Work which were not contemplated by the Below -Grade Demolition Work Plan or the Remediation Work Plan, then Seller will promptly advise Buyer of the same. 08087.00000e 602733312.40 8.3. Seller is and shall continue to be, at its sole cost and expense, solely responsible for remediation of Hazardous Substances at, on, under and about the Property (including groundwater remediation) in accordance with the Remediation Work Plan as it may be amended, and subject to the direction of the EPA and the DTSC. It is understood and agreed that Buyer is not accepting or assuming any obligations, liabilities or other responsibility with respect to the remediation of any such Hazardous Substances. All Property Remediation Work, including investigations, analysis, monitoring, remediation and reporting are sometimes herein referred to as the "Seller Remediation Obligations." If additional contamination beyond that which is contemplated to be remedisted by Seller under the Remediation Work Plan is discovered on or within the Property during the course of the Property Remediation Work, Seller will remediate the same if and to the extent required by the EPA and the DTSC (and the same shall become a part of the Seller Remediation Obligations). B.F. Buyer and Seller will confer and consult in good faith with respect to the work required for Seller to satisfy the Seller Remediation Obligations. The placement of all Remediation Facilities will not unreasonably interfere with the future development and/or use of the Property. Buyer agrees that the locations which are currently being used and/or planned for the Remediation Facilities on the Property are currently acceptable to Buyer and do not interfere with Buyer's currently intended development and/or use of the Property. After the Closing, upon the reasonable request of Buyer, Seller will, relocate the Remediation Facilities to other locations within the Property (including burying pipes and, to the extent feasible, certain other Remediation Facilities upon Buyer's request) provided that the new locations do not adversely affect the operation or effectiveness of the Remediation Facilities (it being agreed that burying the pipes will not adversely affect the operation or effectiveness of the Remediation Facilities). Seller will pay the cost of the fast such relocation but any subsequent relocation (of the same Remediation Facilities) shall be paid by Buyer. 8.5. Because the remediation of the Retained Property could impact the timing or scope of the remediation of the Property (for example, if obtaining regulatory "closure" of the remediation work on the Property cannot be obtained independently of obtaining regulatory closure" of the remediation work on the Retained Property) if the Retained Property and the Property are not treated separately for purposes, of regulatory closure, Seller agrees to diligently perform the obligations regarding the remediation of the Retained Property as set forth in the Remediation Work Plan, but it is understood and agreed that the completion of such remediation work on the Retained Property is not a Condition to Closing. Seller shall seek the approval of relevant governmental agencies to treat the Property and the Retained Property separately for purposes of obtaining regulatory "closure" (including Seller's attempt to secure the approval of the EPA and the DTSC to allow separate Implementation Reports to be provided for the Property and the Retained Property, as described in Section 6.7 above), and Buyer shall reasonably cooperate with Seller in connection with the foregoing. 089397,000006 a02733312A0 8.6. At Closing, Buyer will'grant Seller a license to enter the Property to perform the Seller Remediation Obligations, in the form of Exhibit "D" attached hereto (the "Access Agreement'), which shall be recorded at Closing in the office of the Los Angeles County Recorder. 8.7. Seller shall be solely responsible for the performance and payment of costs for the Property Work, including without limitation the installation of any SVE/bioventing equipment including tubes, piping and all ground water monitoring wells (collectively, the "Remediation Facility ), any repairs thereto, any mandated modifications and relocations thereto and thereof, the operation of the same, the analysis of results with respect thereto, and reporting of the same to the applicable governmental agencies. It is understood that the foregoing obligation does not include the cost of installing any "engineering controls" (as defined in Section 3.2.28 of ASTM E1527-13) which are not required by the Remediation Work Plan (such as, but not limited to, vapor barriers beneath buildings constructed on the Property) required by the DTSC, the EPA or any other governmental agency, which shall be the responsibility of the Buyer (provided such engineering controls are not later required solely as a result of an amendment to the Remediation Work Plan that was initiated by Seller and which has not been approved by Buyer). Without limitation, Sections 26.7(b) and 26.7(cl of the Original PSA are hereby further modified to be consistent with these terms. B.S. As used herein, "force majeure" means the prevention, delay or stoppage of any action of either Party resulting from strikes, lookouts, labor disputes, acts of God, adverse weather conditions, inability to obtain labor or materials, governmental restrictions, regulations or controls, judicial orders, enemy or hostile governmental action, civil commotion, terrorist activities, fire or other casualty, and other causes (except financial) beyond the reasonable control of the Parry obligated to perform such action. In addition, it shall be deemed to be an event of force majeure (a) if during the course of the Property Remediation Work Seller discovers that the contamination which it is obligated to remediate is more extensive than was originally contemplated under the Below -Grade Demolition Work Plan or the Remediation Work Plan and (b) if any agency of the City of Vernon delays the processing of any applications or requests for approval or consent to any action proposed to be taken by Seller. In all cases, a Party claiming the need to extend its deadline for performance of an obligation which is expressly made subject to force majeure extensions shall provide to the other Party notice within ten (10) business days after the occurrence of the force majeure event. The foregoing definition of "force majeure" supersedes the definition of force majeure set forth in Section 26.17 of the Original PSA. 8.9. If Seller sells, leases, or otherwise disposes of any portion of the Retained Property, it shall not be relieved from any obligation hereunder. 8.10. The terms, conditions and obligations under this Section 8 shall survive the Closing. 9 069387.000000 602733312AO 9. ]ndemnities. 9.1. Section26.7(d)(iv) of the Original PSA is hereby deleted in its entirety. Buyer shall have no duty whatsoever under the PSA to indemnify Seller for any matter, circumstances or condition, but Buyer shall nevertheless remain liable for the breach of any of Buyer's representations or warranties in the PSA (if any, and as and to the extent provided in the PSA). 9.2. Seller hereby agrees, at its sole expense, to indemnify, defend, and hold harmless Buyer for all losses, damages, costs, expenses, liabilities (including without limitation strict liability), claims, obligations, settlement payments, penalties, tines, assessments, citations, litigation, demands, defenses, judgments, suits, proceedings or other expenses, (but excluding (x) lost profits or lost "opportunity costs", including loss of any revenues from a potential leasing or sale of the Property, (y) any damages which are not reasonably foreseeable as of the date hereof) and (z) punitive or exemplary damages (and the right to recover any of the damages described in clauses (x), (y) and (z) from Seller is expressly waived by Buyer) including reasonable attorneys and consultant's fees and expenses incurred or suffered by it, relating to, arising from or caused by Hazardous Substances at, on, under and/or about the Property and/or the Retained Property, including all such substances in soil, groundwater, vapor and all other media and including the migration of Hazardous Substances from the Property or the Retained Property to any other property (a) to the extent that Seller has failed or fails to perform the Property Remediation Work and/or work described in the Below -Grade Demolition Work pertaining to Hazardous Substances, or (b) in addition to the conditions addressed by clause (a), to the extent of any Hazardous Substances (whether known or unknown) attributable to Seller's operations on the Property or the Retained Property. To the extent not otherwise covered under clauses (a) or (b) above, Seller's indemnity obligations also include (c) paying or reimbursing Buyer for the cost of any farther remediation of the Property (including any required investigation and/or monitoring), resulting from any claims by the government which require investigation, monitoring, clean up or remediation of Hazardous Substances in, on, under or about the Property (including groundwater beneath the Property) and (d) paying or reimbursing Buyer for the cost of any further remediation of the Property, or any remediation of the property of any third party (including any required investigation and/or monitoring), resulting from any claims by a third party in relation to events or conditions described under clause (a) or (b) or (c) above, including that Hazardous Substances have migrated from the Property to the property of such third party. For the purposes of clause (c), a "government" claim does not include the claim of the City of Vernon or any of its agencies and must not have been initiated at the request of Buyer or as a result of any actions of Buyer if and to the extent the same seeks to impose a standard of remediation that is greater than the standard imposed by the Remediation Work Plan. Notwithstanding the foregoing, Seller's indemnity obligations under clause (c) above do not apply if the government claim results from a change in use or proposed change in use of the Property or any portion thereof (from industrial to some other use not permitted by the restrictive covenant referenced in Section 7.3 above). Further, the 10 059367.000006 602733312.40 foregoing indemnifications shall specifically exclude the initial release of any Hazardous Substances after the Closing Date, including Hazardous Substances which migrate onto the Property after the Closing Date, from any property except the Retained Property (and as to the Retained Property, excluding migration of Hazardous Substances first introduced to the Retained Property after the Closing by anyone other than Seller), 9.3. It shall be a Condition of Closing for Buyer's benefit that the Seller's obligations under Section 9.2 be guaranteed by Kennecott Holdings Corporation (the "Guarantor") for a period of ten (10) years after the Closing, at which time Pechiney's obligations under Section 9.2 shall likewise expire except to the extent of any action then pending in relation to the obligations under Section 9.2. The Guaranty shall be in the form of Exhibit "H" attached hereto. 9A. The obligations under this Section 9 shall survive the Closing and shall run to the benefit of and be binding upon each parry's successors and assigns, 10, Other Amendments. 10.1. Title Company. The Title Company shall hereafter be First American Title hisuranoe Company (Attn: Skip Santy, P: (858) 410-2155, F: (619) 330-2564, E- mail: ssanty©,firstam.com), 10.2. Escrow Holder. The Escrow Holder shall hereafter be First American Title Insurance Company (Attn: Janine Hudson, P: (858) 410-5767, F: (877) 478-3006, E-mail: JaHudson firstam.coml. 10.3. Escrow Instructions. Concurrently with the execution of this Agreement, the Parties shall execute escrow instructions substantially in the form of Exhibit "E I attached hereto, which will transfer the existing escrow and title files (and the Remaining Deposit) to the new Escrow Holder and Title Company. Any escrow or title cancellation charges shall be split equally by the Parties. 10.4. Notices. From and after the Effective Date, all notices under the PSA shall be sent to the following addresses: u er City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator F: 323.826.1491 e: mwhitworthaei.varnon,ca.us City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Z1 e69367.eee606 602733312.40 Attn; Hema Patel, Esq.; City Attorney F: 323.826.1491 e: hRAj;d@Rj,Vemon.ca.us City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kung F: 323.826.1491 e: akun ci.v9rnon.ca.us DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 - Attn: Michael Hamilton, Esq. P: 213.330.7731 F: 213.330.7536 E: michael.hamilton@dlapiper.com Seller Pechiney Cast Plate Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 Attention: Cheree Finan CMy to; Baker Hostetler LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-7120 Attn: Bruce Greene, Esq. P: 310.442.8834 F: 310.820.8859 E: bgreeneQabakerlaw.corn 11. Failure of Conditions to Closing. If, for any reason other than a breach of the PSA by a Party, all Conditions to Closing have not been satisfied (or waived in writing) prior to the Closing Date then, except as set forth below, the PSA shall be deemed terminated. In such event, Seller shall refund to Buyer the sum of $25,600,000, the Remaining Deposit (less any escrow or title cancellation charges) shall be returned to Buyer, Buyer shall execute a quitclaim deed to the Property in favor of Seller (which Seller shall record) and neither Party shall have any further rights or obligations under the PSA (except for any obligations of the Parties which survive the termination of the PSA, including the indemnification obligations of Buyer relating to inspections of the Property, which obligations shall survive the termination of the PSA). If the Parties proceed to the Closing then all Conditions to Closing shall be deemed satisfied but the foregoing is not 12 089367.000006 607733312.40 intended to nor shall it relieve either Party from liability for any breach of the PSA which occurs prior to or after the Closing and Seller shall not be relieved of its obligations to complete the Property Work.. Notwithstanding anything herein to the contrary, if the Condition to Closing which has not been satisfied is the condition described in Soctio U1 then the following shall apply: Buyer shall have the option to either terminate the PSA, as set forth above, or to require Seller to complete the Uncompleted Work. Buyer shall make its election in the Completion Notice, and if Buyer fails to elect to terminate the PSA, then Buyer shall be deemed to have elected to have Seller complete the Uncompleted Work. In the event that Buyer elects (or is deemed to have elected) to have Seller complete the Uncompleted Work, then notwithstanding the satisfaction of such condition, Seller shall be obligated to complete the Uncompleted Work, and if necessary, the Closing Date shall be extended for a reasonable time, not to exceed ninety (90) days to enable Seller to complete the Uncompleted Work. If Buyer elects (or is deemed to have elected) to have Seller complete the Uncompleted Work, and Seller has not completed the Uncompleted Work within such ninety (90) day period, then Buyer may, by notice to Seller within five (5) days after said ninety (90) day period has expired, elect to terminate the PSA (for the failure of a Condition to Closing). If Buyer does not timely elect to terminate the PSA, Seller shall complete the Uncompleted Work as diligently as possible. Notwithstanding the forogoing, Buyer may elect by not less than five (5) Business Days' notice to Seller, to close the transaction on or at any time after the Closing Date, provided that Buyer will afford Seller access to the Property after the Closing to complete the Uncompleted Work, subject to the provisions of the Access Agreement (which shall be amended to include the foregoing). Nothing herein is intended to affect the Buyer's "self help" rights described in Section 26.17 of the Original PSA and it is agreed that after the Closing, the term "Remaining Seller's Work" AM include the Uncompleted Work. 12. Releases. Effective on the Closing Date (if, and only if, the Closing occurs, unless the failure to close results from the breach of a Party, in which case the releases given by the breaching Party (as determined by a court or arbitrator) shall become effective but the releases given by the non -breaching Party (as determined by a court or arbitrator) shall not become effective), the following releases shall become effective: 12.1. RELEASE BY SELLER: Except for the covenants and obligations created under the PSA which survive the Closing, the Stormwater Easement Agreement, the Access Agreement and the restrictive covenant described in Section above, (as each of the some may have been amended, modified and/or supplemented), Seller hereby releases and forever discharges Buyer, and all of Buyer's officers, directors, employees, and the successors, heirs, legal representative and assigns of each of the fbregoing,. from any and all manner of claims, disputes, actions, liabilities, causes of actions, suits, set -offs, contracts, counterclaims, demands or damages, whatsoever, based on any legal or equitable theory, right of action or otherwise (whether arising under federal, state, or local law, regulation or common law), foreseen or unforeseen, known or unknown, matured or unmatured, accrued or not accrued, which Seller ever had, or now has or may 13 0=57.000006 502733312A0 have, regarding the performance by Buyer of its obligations under the PSA and the sale of the Property by Seller to Buyer. 12.2. RELEASE BY BUYER; Except for the covenants and obligations created under the PSA which survive the Closing, the Promissory Note, the Stormwater Easement Agreement, • Access Agreement, the Guaranty and the restrictive covenant described in Section 73 above (as each of the same may have been amended, modified and/or supplemented), Buyer hereby releases and forever discharges Seller and Seller's officers, directors, shareholders, affiliates, parents and employees, and the successors, heirs, legal representatives and assigns each of the foregoing, from any and all manner. of claims, disputes, actions, liabilities, causes of actions, suits, set -offs, contracts, counterclaims, demands, or damages, whatsoever, based on any legal or equitable theory, right of action or otherwise (whether arising underIoderal, state, or local law, regulation, or common law), foreseen or unforeseen, known or unknown, matured or unnmatured, accrued or not accrued,. which Buyer has ever had, or now has or may have, regarding the performance by Seller of its obligations under the PSA and the sale of the Property by Seller to Buyer. 13. Miscellaneous, 13.1. The use herein of the word `including" shall be construed to mean "including without limitation." 13.2. Except to the extent expressly modified by this Second Amendment, the Original PSA is ratified and remains in fill force and effect. To the extent of any inconsistency between this Second Amendment and the Original PSA, the terms and conditions of this Second Amendment shall control. 13.3. This Second Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one document This Second Amendment shall be deemed effective against a Party upon receipt by the other Party (or its counsel) of a counterpart executed by facsimile or electronic mail. (signatures on next page] 14 089367.000006 802733312.40 IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Second Amendment as of the Effective Date, Buyer: City of Vernon p Name: W. Michael,McHormick Title; Mayor Approved as to form: DLA Piper LLP (US), Special Counsel to Buyer Seller: Peehiney Cast Plate, Inc., a Delaware corporation By: Name: William Adams Title: President S•1 009M.000000 603733312.40 Bxhibit A Plot of Property, Retained Property, Seller UP Land, Buyer UP Land and Additional Property [attached hereto] Exhibit A 088367.000008 602733312AO Exhibit E Stormwater Drainage Easement [attached hereto] Exhibit D 089307.000006 602733312AO Recorded at the Request of And When Recorded Return to: STORM WATER DRAINAGE EASEMENT THIS STORM WATER DRAINAGE EASEMENT ("Agreement") is made as of . 2016, by PECHINEY CAST PLATE, INC., a Delaware corporation ("Grantor") and the CITY OF VERNON ("Grantee"). RECITALS A. Grantee Is the owner of a parcel of land (the "Benefited Property') located In the City of Vernon, County of Los Angeles, California, as more particularly described in Ex Ibi hereto. B. Grantor Is the owner of a parcel of land (the "Burdened Property') located in the City of Vernon, County of Los Angeles, California, as more particularly described In Exhibit B hereto. C. Concurrently herewith, Grantee has purchased the Benefited Property from Grantor pursuant to that certain Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 20, 2006 between Grantor, as seller, and Grantee, as buyer (as the same has been amended, the "PSA" ). D. As a condition to the sale of the Benefited Property by Grantor to Grantee, the PSA requires that Grantor grant to Grantee an easement for the drainage of storm water from the Benefited Property through the underground water pipes and related facilities (as they may be improved, modified or replaced, the "Storm Water Management Facilities") which are situated within the Burdened Property and Into a designated storm water outfall which is situated within the Burdened Property as depicted on Exhibit C attached hereto, (the "Drainage Easement Area"). E. As used herein, the Benefited Property and the Burdened Property are referred to herein as the "Properties". Grantee and Grantor are each referred to herein as a "Parcel Owned' and together as the "Parcel Owners". F. The parties intend that the easements herein granted shall run with the land. 089367.000006 603258358.4 AGREEMENT NOW THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, Intending 10 be legally bound, covenant and agree as follows: 1. Grant of Easements. a. Easement for Storm Water Drainage. Grantor grants to Grantee, for the benefit of the Benefted Property, a permanent, non-exclusive easement for the purpose of the drainage and passage of storm water from the Benefited Property under and through the Drainage Easement Area of the Burdened Property using the Storm Water Management Facilities situated within the Burdened Property and ending at the storm water outfall which Is situated within the Burdened Property (and which Is Identified on Exhibit C as "Storm Water Outfall No. 8"). For clarification, no rights of surface drainage across the Burdened Property are granted to Grantee hereby. b. Easement for Access. Grantor also grants to Grantee and Grantee's employees, agents and contractors,.the permanent, non-exclusive right and privilege to enter the Burdened Property at reasonable times upon reasonable advance notice (except In the event of an emergency) to the extent reasonably required by Grantee in order to exercise Its rights pursuant to Section 4 hereof, Grantee grants to Grantor and Grantor's employees, agents and contractors the permanent, non- exclusive right and privilege to enter the Benefltted Property at reasonable times upon reasonable advance notice (except In the event of an emergency) to the extent reasonably required by Grantor In order to exercise its rights pursuant to apotion4 hereof. Provided, however, that (a) before either Grantor or Grantee (or their employees, agents or contractors) may enter upon the Property of the other, they shall have obtained liability insurance with limits and terms reasonable acceptable to the other Parcel Owner insuring them (and also insuring the other Parcel Owner) against any damage to persons or property resulting from such access or work performed on the Property of the other (in the event of a claim, the Insuring party shall pay any deductible) (b) the Property of the other shall be kept free and clear of all mechanics and materialmen's liens resulting from such work and (c) in entering upon the other Parcel Owner's property and in the exercise of Re rights pursuant to this Agreement, a Parcel Owner shall comply with all applicable laws, ordinances and governmental regulations. c. Limitation. Neither party shall have the right to overburden the Storm Water Management Facilities, and each party shall be required to comply with all applicable laws, ordinances and governmental regulations which control or limit the amount of storm water which such party may cause to flow Into Storm Water Outfall No. 8. if either party Is charged by any governmental authority for any such excess usage by the other party, such other party shall pay or reimburse the party who was charged for such amounts promptly upon demand. Any amount which is not paid within thirty (30) days after demand shall bear Interest at the rate of ten percent (10%) per annum asessr.ococae 603258368.4 2 d. Matters of Record, The grants of the easements hereunder are subject to all matters of record existing as of the date hereof, and shall be subordinate to any future mortgages, deeds of trust, utility easements or covenants, conditions and restrictions which may hereafter be recorded against the Properties; provided that the foregoing utility easements or covenants, conditions and restrictions do not materially and adversely affect the rights of the Grantee hereunder. 2. Maintenance of Drainage Easement Area. a. The Storm Water Management Facilities on the respective Properties shall be maintained In good condition and repair by the respective Parcel Owners at their sole cost and expense, including keeping drains clear of debris and other obstructions and replacing fikers. All such maintenance and repair shall be performed in accordance with BMP's (best management practices) and all applicable laws, rules and governments] regulations. b. Notwithstanding the provisions of Section 2(al above, any costs or expenses Incurred by a Parcel Owner which result from the negligence or failure of the other Parcel Owner to properly maintain or repair any Storm Water Management Facilities located within such other Parcel Owner's Property, shall be reimbursed by such other Parcel Owner to the Parcel Owner Incurring the cost or expense within thirty (30) days after demand (which demand shall be accompanied by an Invoice and a description of the maintenance or repair work which was performed). Any amount which Is not paid within such thirty (30) day period shall bear Interest at the rate of ten percent (10%) per annum. 3. No Interference. Neither party shall at any time, Intentionally do or permit any act or event or circumstance which would result In the free flow of storm water through the Drainage Easement Area or which would violate or materially interfere with the rights of the other party under this Agreement. 4. Performance of a Parcel Owner's Obligations by the Other Parcel Owner. In the event either Parcel Owner falls to perform any of its repair or maintenance obligations under this Agreement within thirty (30) days of notice by the other Parcel Owner, the Parcel Owner giving such notice may, but Is not required to, perform any such repair or maintenance obligations. Except as may be necessary to prevent imminent damage or Injury on an emergency basis, a Parcel Owner shall not commence performance of any unperformed obligation of the other Parcel Owner as long as, within such thirty (30) day period, the other Parcel Owner shall have commenced curative action and thereafter shall prosecute such curative action diligently to completion. If a Parcel Owner performs the repair or maintenance obligations of the other Parcel Owner hereunder, the other Parcel Owner shall reimburse the Parcel Owner performing such obligations for all reasonable amounts expended by such Parcel Owner pursuant to this Section 4 within thirty (30) days after demand (which demand shall be accompanied by an invoice and a description of the work which was performed). Any amount which is not paid within such thirty (30) day period shall bear interest at the rate of ten percent (10%) per annum. 5. Indemnity, Each Parcel Owner (as "Indgmnitor") shall indemnify, defend, and hold harmless the other Parcel Owner and its officers, directors, shareholders, members, managers, employees, agents, attorneys, and their respective successors and assigns M367.000006 603266360.4 3 (individually, the "Indemnitee" or collectively, the "Indemnitees") from and against any and all losses, claims, actions, damages, liabilities, penalties, fines, or expenses, of whatsoever nature, including, without limitation, reasonable attorneys' fees and costs (collectively, "Claims") incurred by the Indemnitee or the Indemnitees which result from the breach of any provision of this Agreement by the Indemnitor, except to the extent any such Claims result from the wrongful acts or omissions or the gross negligence or willful misconduct of the Indemnitee or the Indemnitees. 6. Term. a. Term: This Agreement shall be effective as of the date first above written and shall continue in effect in perpetuity unless and until terminated as hereafter provided. A copy of this Agreement shall promptly be recorded by Grantee, at Grantee's expense, in the office of the Los Angeles County, California Recorder. b. Termination or Amendment of Agreement: This Agreement may be terminated or amended only by the mutual written consent of all of the then -record Parcel Owners, or any portion (hereof (in which case such termination or amendment shall be effective only as to such portion). A copy of any such amendment or termination, shall promptly be recorded in the office of the Los Angeles County, California Recorder. 7. Miscellaneous. a. Covenants Run with Land: The covenants created In this Agreement are covenants "running with the land" pursuant to California Civil Code Section 1460, at. seq. b. Mortgages Protection: The breach of any provision of this Agreement shall not defeat or render Invalid or unenforceable the Ilan of any bona fide mortgage or deed of trust made in good faith and for value on the interest of any of the Parcel Owners from a third party lender, but all other provisions of this Agreement shall, except as otherwise set forth herein, be binding and effective against any Parcel Owner whose title Is acquired by foreclosure, trustee's sale or otherwise. c. Notices: Any notice required or permitted to be given hereunder shall be effective only if given in writing, sent by certified mall (return receipt requested), overnight delivery service, or delivered personally, and addressed as set forth herein. Notices shall be deemed to have been given on the date of receipt or in the case of notices sent by certified mail, on the third business day after mailing. Grantee: City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator With a copy to: DLA Piper LLP (US) 550 S. Hope Street, Suite 2300 089M.000008 603258358.4 4 Los Angeles, CA 90071 Attention: Michael Hamilton, Esq. Grantor: Pechiney Cast Plate, Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 Attention: Cheree Finan With a copy to: Baker Hostetler LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025 Attention: Bruce R. Greene, Esq. d. Inurement: Governing Law: This Agreement shall inure to the benefit of and be binding upon the parties and their respective legal representatives, successors, and assigns. This Agreement shall be governed by the laws of the State of California. e. Attorneys' Fees. If either party institutes legal proceedings against the other with respect to this Agreement, the nonprevalling party shall pay to the prevailing party an amount equal to all reasonable attorneys' fees and disbursements and all other costs and expenses Incurred by the prevailing party In connection therewith. Exhibits: The following documents are attached hereto and Incorporated herein by reference: (1) Exhibit A —Legal Description of Benefited Property (II) Exhibit B—Legal Description of Burdened Property (ill) Exhibit C—Depiction of Drainage Easement Area g. Severabiiity: Invalidation of any one of the provisions of this Agreement by judgment or court order will not affect any of the other provisions, which will remain In full force and effect. h. Section Hgadings: Section headings are included for reference purposes only and do not constitute a part of this Agreement. I. Counteroarts: For convenience, the signatures of each of the parties may be executed and acknowledged on separate counterpart pages which, when attached to this Agreement, shall constitute one complete Agreement. Est000el Certificates: Each Parcel Owner shall deliver to the other Parcel Owner, within fifteen (15) business days after receipt of a request, a commercially reasonable estoppel certificate which confirms the existence of this Agreement, whether or not this Agreement has been amended, whether either party Is In default hereunder, and any other matters reasonably requested by the Parcel Owner who requests such estoppel certificate. Such estoppel certificate may be relied on by any purchaser or tenant, or potential purchaser or tenant, or any 080307.000008 803258358.4 lender or potential lender, The failure or refusal of a party to timely deliver an estoppel certificate shall be a default under this Agreement, and shall also be deemed to be an acknowledgement by such Parcel Owner that the requesting Parcel Owner Is not In default under this Agreement, and that any factual representations made by the requesting Parcel Owner to such purchaser, tenant or lender (or potential purchaser, tenant or lender) are true and correct absent a showing of bad faith, [SIGNATURES ON FOLLOWING PAGES] E IN WITNESS WHEREOF, the parties hereto, Intending to be legally bound, have executed this Agreement as of the date first written above. GRANTOR: Pechiney Cast Plate, Inc., a Delaware corporation By: William Adams President GRANTEE: City of Vernon By: Name: Title: Approved as to form: DLA Piper LLP (US), Special Counsel to Buyer 089367.000006 8032MMA ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) as. COUNTY OF } On 20_ 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(a), 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, NOTARY PUBLIC (SEAL] OM67.000006 60ffi58368.4 8 ACKNOWLEDGMENT A Notary Public or other offker completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA as. COUNTY OF On 2Q_ 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 some in hia/heritheir 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. NOTARY PUBLIC (SEAL] 089367.000006 603258358.4 9 EXHIBIT A LEGAL DESCRIPTION OF BENEFITED PROPERTY [to be attached] 099397.000006803290350.4 EXHIBIT B LEGAL DESCRIPTION OF BURDENED PROPERTY [to be attached] 089367.000006 603265368.4 EXHIBIT C DEPICTION OF THE DRAINAGE EASEMENT AREA [to be attached] 089367.000000 603258358.4 Exhibit C Supplemental Conditions to Below -Grade Demolition Work Plan Seller shall not re -use as fill material, or use for any other purpose at the Property, any excavated concrete containing PCBs with concentrations greater than 1 mg/kg (that is, "Restricted Use fill') on Phases I, II and VI of the Property (as such phases are defined in Sect. 7.1 of the Below - Grade Demolition Work Plan) or ou any other portion of the Property. To clarify, Seller shall only use clean fill (that is, "Unrestricted Use fill', being fill with PCB concentrations of 1 mg/kg or less) to backfill excavation areas on Phases 1, 11 and VI of the Property. Further, notwithstanding Section 7.1 of the Remediation Work Plan, PCB -impacted concrete which is re- used at the Property as backfill may not be placed in the area of Building 104. Exhibit C 089387,000008 802733312A0 Exhibit D Access Agreement [attached hereto] Exhibit D 089307.000008 992733312.40 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Bruce R. Greene Baker Hostetler LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-7120 ACCESS LICENSE AGREEMENT THIS ACCESS LICENSE AGREEMENT C' me ") is made as of 2015 by and between CITY OF VERNON ("Vernon % and PECHINEY CAST PLATE, INC„ a Delaware corporation ("Pechina ), RECITALS A. On or about . 2015, Vernon purchased the real property described on Exhibit "A" attached hereto (the "Property") from Pechiney. Pechiney is the owner of the real property described in Exhibit'B" attached hereto (the "Retained PLOgM'�. B. The purchase and sale was made pursuant to that certain Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 20, 2006 between Pechiney, as seller, and Vernon, as buyer (as amended, the "RSN). C. Pursuant to the PSA, the parties agreed that Pechiney was obligated to continue certain Remediation Activities (as defined herein) on the Property after the closing date for the purchase and sale, and that upon closing of the purchase and sale transaction, Pechiney and Vernon would enter into an agreement which would set forth the terms and conditions upon which Pechiney would be entitled to enter upon the Property to perform such Remediation Activities. NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of License. Vernon hereby grants to Pechiney a revocable, nonexclusive license to enter the Property on the terms and conditions set forth herein and solely for purposes of performing the Remediation Activities, and for the period commencing on the date of this Agreement and expiring on the date that the Remediation Activities have been completed as set forth in the PSA, or the earlier termination hereof (the "License Term"). 099887.000008 002741975.8 (a) Pechiney shall have the right to enter upon those portions of the Property reasonably necessary to undertake the Remediation Activities, subject to the rights of tenants and occupants and any restrictions under applicable law as to when work in the nature of the Remediation Activities can be performed. Pechiney's rights hereunder may be exercised by any employee, contractor or other representative engaged by Pechiney, provided that Pechincy shall be responsible for the acts or omissions of any of such Persons (as used herein, the term "Persons" includes an individual or an entity, as the case may be). (b) As long as no Person other than Vernon is in possession of or is conducting business from the Property, no advance notice need be given by Pechincy to Vernon in connection with any entry onto the Property to perform any Remediation Activities. If any Person other than Vernon is in possession of or is conducting business from the Property, and Pechiney is given notice of such fact, which notice shall set forth such Person's identity and contact information, Pechiney shall give reasonable advance notice (not less than two (2) business days in advance, except in the event of an emergency, and which may be telephonic or by e-mail) to such Person. Vernon may have its representatives present to inspect the Remediation Activities. Such representatives shall comply with any reasonable requirements (including safety requirements) of Pechiney and will not materially interfere with the Remediation Activities. Without the prior consent of Vernon or any tenant of the Property, Pechincy shall not enter into any buildings on the Property, and in all events Pechiney shall use reasonable efforts to avoid interfering with the activities on the Property of Vernon or any tenant, including development or construction activities. (e) Pechiney shall also have the right to enter upon the Property (including utilizing the street access from Fruitland Avenue) so as to access the Retained Property for the purpose of performing the Remediation Activities on the Retained Property, to perform the Seller's Work (as defined in the PSA) on the Retained Property, and to create access to the Retained Property from Boyle Avenue, provided that Pechiney's access rights do not materially interfere with any development activities being performed on the Property. Vernon reserves the right to limit the access across the Property to specific areas, including designated entrances and exits and driving circulation patterns on the Property provided that such limitations are reasonable. The right created under this SgAion 1 W shall terminate when Pechiney has unimpeded physical access to the Retained Property directly from Boyle Avenue (which includes the completion of any necessary curb cuts, and the construction of temporary or final ramps, driveways and other improvements which would allow access for trucks and other construction -related equipment from Boyle Avenue to the Retained Property and which also includes the completion of any facilities required by the California Public Utilities Commission and Union Pacific Railroad Company), 2. Scone of Remediation Activities. (a) Pechiney shall have the right to enter upon the Property pursuant to this Agreement to perform the work described in that certain Remedial Action Plan dated June 28, 2012, as amended by an Addendum dated May 30, 2013 (as it may be amended in accordance with the PSA, the "EAf) which was approved by the Department of Toxic Substances Control ("DTSC") and the United States Enviromnental Protection Agency ("EM'), and the other Seller Remediation Obligations (as defined in the PSA) (collectively, the "Remediation Activities"); 2 089367,000006 602741975.8 (b) Without limitation, Remediation Activities includes the installation, monitoring and replacement of any equipment or facilities required for Pechiney to perform its obligations under the RAP (collectively, the "Remediation Facilities") or as otherwise required by any applicable federal or state governmental agency or authority (including SVE/bioventing equipment, pipes, tubing, and groundwater monitoring wells), subject to the terms and conditions of the PSA. (c) Pechfney and Vernon will confer and consult in good faith with respect to the Remediation Activities. The placement of any now Remediation Facilities which are installed after the date of this Agreement will not unreasonably interfere with the development, construction, operation and/or use of the Property. Upon the reasonable request of Vernon, Pechiney will, relocate the Remediation Facilities to other locations within the Property (including burying some of the Remediation Facilities upon Vernon's request), provided that the new locations do not adversely affect the operation or effectiveness of the Remediation Facilities. Pochiney will pay the cost of the first such relocation but any subsequent relation (ofthe same Remediation Facilities) shall be paid by Vernon. (d) All costs of installation, monitoring, repair, maintenance, relocation (except as provided in Section .W above) and replacement of the Remediation Facilities shall be bome by Pechincy. Pechincy will not permit any mechanics', materialmen's or other similar liens or claims to stand against the Property. for labor or material furnished in connection with any Remediation Activities performed by or on behalf of Pechincy. Upon reasonable and timely notice of any such lien or claim delivered to Pechincy by Vernon, Pechincy may at its sole expense bond and contest the validity and the amount of such lien, but if a judgment is rendered Pechincy will promptly pay the amount of the judgment or otherwise satisfy the judgment so that the lien is released. (e) Vernon shall acquire no ownership rights or interest in any of the Remediation Facilities. (0 Upon expiration of the License Term, Pechincy shall at its expense remove from the Property, or decommission all Remediation Facilities, shall repair any damage to the Property caused by such removal, and shall landscape or pave the area of the Property from which the Remediation Facilities were removed to be consistent with the then -current condition of the immediately surrounding area. Notwithstanding the foregoing, any Remediation Facilities which the DTSC and/or the EPA requires to remain on the Property (such as for continued monitoring purposes) shall remain on the Propertyuntil the DTSC and/or the EPA (as applicable) allows their removal, and the License Term shall continue until such removal is allowed. (g) The Remediation Activities shall be performed in accordance with the provisions in the RAP or as otherwise approved in writing by the DTSC and/or the EPA. Any test results (including "split" samples of any soil or underground testing), monitoring data, analytical and other reports and other information, including any material communications which are prepared by or on behalf of Pechiney in connection with the Remediation Activities which are submitted to the EPA and/or the DTSC shall be concurrently submitted to Vernon. Pechiney shall give reasonable advance 089367.000008 602741975.0 notice to Vernon to enable a representative of Vernon to attend any meetings with the EPA and/or the DTSC relating to the Remediation Activities. (h) Pechiney shall provide Vernon with copies of all reports relating to the Remediation Activities being performed on the Property which are prepared for the DTSC and/or the EPA. (i) The provisions of Section 7.3 of the Second Amendment to the PSA (regarding the recordation of a RestrictiVe Covenant) are incorporated herein by reference (references to "Buyer" therein shall mean "Vernon" and references to "Seller" therein shall mean "Pechiney'7. 3. Indemnification, Pechiney agrees to indemnify, defend and hold Vernon, its successors and assigns, and their respective officers, employees, agents and representatives (collectively, the "Indemnified Parties") harmless from and against any and all third party claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a direct result of the performance of the Remediation Activities by Pechiney or Pechiney's employees, contractors or other representatives, including, without limitation, damages or losses sustained as a result of the recordation of any mechanic's liens, physical damage to the Property, and injury to Persons or property, except to the extent such damages or injuries are the result of an Indemnified Party's negligence or willful misconduct. For clarification, the foregoing indemnification is not intended to cover losses or claims which relate to the environmental condition of the Property or to existence of contamination on, under or about the Property, but is intended only to cover losses or claims which directly result from the performance of the Remediation Activities. The foregoing indemnification shall not limit or extend the scope of the indemnification provisions in the PSA. 4. Insurance. Pechiney agrees to maintain (or cause its contractors and other representatives performing the Remediation Activities on the Property to maintain) in effect insurance coverage meeting the requirements set forth on Schedule 1 attached hereto. Such insurance shall name Vernon as an additional insured and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Vernon. Pechiney shall deliver to Vernon, prior to commencing any of the Remediation Activities on the Property, certificates of insurance or other evidence reasonably satisfactory to Vernon that the insurance required hereunder is in full force and effect. Default, (a) If Pechiney defaults in any of its obligations under this Agreement, Vernon shall give notice to Pechiney identifying the default. Temporary cessation of the Remediation Activities (not to exceed thirty (30) days) or cessation of the Remediation Activities by direction of the EPA and/or the DTSC, shall not be deemed to be a default. If Pechiney fails to cure the default within ten (10) days thereafter (or sooner, if the default is likely to cause damages or injury to Persons or Property) then Vernon may, by notice to Pechiney, immediately terminate this Agreement and take such other actions against Pechiney at law or equity w it shall determine in its sole discretion, including without limitation the right of self-help described below. Such termination is without prejudice to any other rights of remedy of Vernon under applicable law. Provided, however, 080387.00000E 802741976.8 if such default is not reasonably capable of being cured within such ten (10) day period (it being agreed that the payment of money is a curable default within such period), Pechiney will have an additional reasonable time to cure the default as long as it commences the cure within such ten (10) day period and diligently pursues the cure to completion. (b) If the event of a default by Pechiney which is not cured within the times set forth in clause (a) above, Vernon shall have, among other remedies, the right, but not the obligation, to cure such default for the account of and at the expense of Pechiney, provided, however, that in the event of emergency conditions posing an immediate threat to persons or property and constituting a default, Vernon acting in good faith shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so long as notice is given as soon as possible thereafter. Any notice hereunder shall specify with particularity the nature of the default claimed and shall set forth the action which Vernon proposes to take in order to cure the claimed default. (c) Each party hereto shall have the right to prosecute any proceedings at law or in equity against any other party hereto, or any other person, violating, attempting to violate, threatening to violate, or defaulting upon any of the, provisions contained in this Agreement, in order to prevent the violating or defaulting party or any such person from violating, attempting to violate, threatening to violate or defaulting upon the provisions of this Agreement and to recover damages for any such violation or default. (d) All costs and expenses reasonably incurred by any party to cure a default of a defaulting party, together with interest thereon, at the lower of the Wall Street Journal Prime Rate plus five percent (5%) or the maximum rate allowed by applicable usury law, and all costs and expenses of any proceedings at law or in equity, including reasonable attorneys' fees awarded to any party by an order of court, shall be assessed against and paid by the defaulting or violating party. 6. Revecability, Assignment. (a) Vernon reserves the right to revoke and terminate this Agreement at any time including without limitation upon the occurrence ofadefault by Pechiney hereunder, or with respect to any of Pechiney's surviving obligations under the PSA which relate to the Seller Remediation Obligations. However, unless Pechiney is in default hereunder (after applicable notice and cure time) Vernon may not terminate this Agreement unless the EPA and/or the DTSC (as applicable) consent in writing to such termination, or Pechiney is unconditionally released by the DTSC and the EPA from all further obligations to remediate the Property. Provided, further, that regardless of whether Pechhrey defaults hereunder, Vernon may not revolve or terminate this Agreement with respect to Pechiney's access rights to the Retained Property described in Section above until the occurrence of the events described in Section I(c) above under which such rights would terminate. (b) Vernon may assign this Agreement to subsequent owners of the Property. (c) Pechiney may delegate its obligations under this Agreement to third party contractors, but no such delegation shall relieve Pechiney from liability hereunder to perform such obligations. Pechiney may assign its entry rights under Section U of this Agreement (for the 089387.000008 602741975.8 purpose of creating access to the Retained Property from Boyle Avenue) to any subsequent owner of the Retained Property. 7. Binding Agreement: Governing Law, This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns, subject to the restrictions on assignment above. Thies Agreement shall be governed by the laws of the State of California, 8. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, by certified or registered mail, return -receipt requested, first-class postage prepaid, or by Federal Express or some other reputable overnight carrier, to the parties at the following addresses: If to Vernon: City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator With a copy to: DLA Piper LLP (US) 550 S, Hope Street, Suite 2300 Los Angeles, CA 90071 Attention: Michael Hamilton, Esq. If to Pechiney: Pechiney Cast Plate, Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 Attention: Cheree Finan With a copy to: Baker Hostetler LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025 Attention: Bruce R. Greene, Esq. or to such other place and with such other copies as either party may designate by notice to the other party. 9. Amendment. This Agreement may be modified or amended only in a writing duly executed by both parties. 10. Counternarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. Recordation. This Agreement shall be recorded in the office of the Recorder of Los Angeles County, California. 0 089387.000006 002741975.8 IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written. "VERNON" "PECHINEY" City of Vernon Pechiney Cast Plate, Inc. By: Name: Title: Approved as to form: DLA Piper LLP (US), Special Counsel to Buyer 7 089387.000006 802741078.11 0 William Adams, President ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the Identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA es. (, * IZIWA16A On 20_ 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/shetthey executed the same In hisiher/their authorized capacity(les), and that by his/hentheir 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. NOTARY PUBLIC [SEAL] 089387.000008 602741975.8 ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the Identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ss. COUNTY OF On 20_ before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Were subscribed to the within instrument and acknowledged to me that he/shelthey executed the some in histheritheir authorized capacity(les), and that by his/heritheir 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. NOTARY PUBLIC (SEAL) 089367.000008 002741975.8 EXHIBIT "A" PROPERTY DESCRIPTION Exhibit'`N' 666967.660660 662741675.E EXHIBIT "B" RETAINED PROPERTY DESCRIPTION Exhibit "B" 088887.000006 802741875.8 chedule 1 Insurance Requirements Prior to entry upon the Property, Pechiney shall furnish to Vernon, at Pechiney's expense, certificates of insurance listing Vernon as an additional insured on the policies listed below (with the exception of the Worker's Compensation, Employer's Liability and Professional Liability policies), evidencing that Pechiney, or its agents and contractors, have insurance in full force and effect meeting the requirements set forth below; 11pe of Covera a Limits Worker's Com nsation/Em to er's Liability Statutor ryP$500,000 Commercial General Liability Insurance $2,000,000/occurrence S5,000,000/aggregate Automobile Liability $1 000,000 Combined/ Single Limit The Commercial General Liability ("CGL") Insurance required hereby shall be on an "occurrence" basis for bodily injury, death and property damage liability. The aggregate coverage thereunder shall apply separately to products -completed operations and all other general liability coverages combined. The CGL policy shall cover all operations of the named insured, including (i) owner's and Is protective liability (i.e., independent contractorsl1 00 products and completed operations, (iii) contractual liability (specifically covering the indemnification contained in this Agreement), (iv) broad form property damage, (v) severability of interest and cross liability clauses, guA(vi) personal injury for groups of offenses, A, B, and C with exclusion (c) deleted. Pechiney shall remain liable for the payment of all deductibles. The CGL insurance shall be written on an insurance Services Office ("ISO") occurrence form CG 00 01 10 93 (or a substitute form reasonably acceptable to Vernon providing equivalent or greater coverage). Pechiney shall require that its agents and contractors maintain the aforesaid coverages at all times during the License Term. Any coverage written on a "claims -made" basis shall be kept in force, either by renewal or the purchase of an extended reporting period, for a minimum period of three (3) years following the expiration of the License Term. Each policy which provides coverage for losses to property shall contain a waiver of subrogation, if the same can be obtained, All such policies shall be primary and non-contributing with and not in excess of, any other insurance available to any of the additional insureds under such policies, and shall have commercially reasonable deductible amounts. Schedule 1 009997,000008 002741975.8 Exhibit E Escrow Instructions [attached hereto] Exhibit E 0&0367.000000 608733312.40 �ba ea�R,lrc FIW Amedcan Tide Company National Commercial Services 4380 La Jolla Village Drive, Suite 110, San Diego, CA 92122 DISCHARGE OF ESCROW HOLDER AND TRANSFER OF ESCROW DUTIES TO FIRST AMERICAN TITLE COMPANY December S, 2014 To: Re: Escrow No. NCS-666223-SD Attn: Custodian of Records The undersigned hereby discharges as Escrow holder and here by requests the transfer of the above referenced escrow file as called for herein below. The undersigned do hereby appoint First American Title Company to act as Escrow Agent under the same terms and conditions as set forth in the purchase agreement. Upon the execution of these Instructions shall : 1. Disburse and deliver the funds held by you to First American Title Company, 4380 La Jolla Village Drive , Escrow Officer. 2. Forward any and all documents, instructions, correspondence and /or Instruments held by you to First American Title Company , Escrow Officer. This Includes but Is not limited to any original, faxed or copied material executed by or addressed to both or either of the undersigned, or their agents, employees, brokers, attorney, and/or lenders, This Instruction may be executed In any number of counterparts, each of which shall be considered as an original and effective as such. You may also accept a facsimile of this Instruction as an original and effective as such. ALL DOCUMENTS OR FUNDS RELEASED PURSUANT TO THIS INSTRUCTION ARE TO BE DELIVERED TO - First American Tltle Company 4380 La Jolla Village Drive San Diego, CA 92122 DO NOT MAIL ANY MATERIAL TO THIS OFFICE. IF DELIVERY IS NOT POSSIBLE CALL TO ARRANGE FOR A MESSENGER,(858)41O-3900 Each of the undersigned acknowledges receipt of a copy hereof. jhl12JOS12014 Exhibit F Draft Restrictive Covenant [attached hereto] Exhibit F 089367.000006 502733312.40 RECORDING REQUESTED BY: Pechiney Cast Plate Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 WHEN RECORDED MAIL TO: Department of Toxic Substances Control Notes: 1) APN's to be inserted after Lot Line Adjustment. 2) Changes to definition of "Owner" may be needed If executed by Xebec after Closing. LAND USE COVENANT AND AGREEMENT ENVIRONMENTAL RESTRICTIONS County of Los Angeles, Assessor's Parcel Numbers [leave out] Former Pechiney Cast Plate Facility, Vernon, Cailfornia [Site No. 301396-00] This Land Use Covenant and Agreement — Environmental Restrictions ("Covenant") Is made and entered Into as of the date last written below, by and between Pechiney Cast Plate, Inc. a Delaware corporation ("Owner"), the current owner of certain property situated at 3200 Fruitland Avenue, Vernon, County of Los Angeles, State of California, legally described In Exhibit A and depleted on Exhibit , (the "Property") and the California Department of Toxic Substances Control (the "Department " which Includes Its successor agencies, if any). The Department has determined that this Covenant Is reasonably necessary to protect present or future human health or safety or the environment as a result of the presence on the land of "Hazardous Materials" (as defined in California Health and Safety Code section 25260 and "Hazardous Substances" (as defined In California Health and Safety Code section 25316) (collectively, "Hazardous Substances"). Owner and the Department hereby agree, pursuant to California Civil Code section 1471, and California Health and Safety Code sections 25222.1 and 25355.5 that the use of the Property be restricted as set forth in this Covenant and that the Covenant conforms with the requirements of the California Code of Regulations, Tide 22, section 67391.1. The parties further Intend that the provisions of this Covenant shall also be for the benefit of, and enforceable by, the United States Environmental Protection Agency (the "EPA") as a third party beneficiary, although the EPA is not a party to this Agreement. ARTICLE I STATEMENT OF FACTS 1.1 Property Location. The Property consists of two legal parcels, totaling approximately 552,715 square feet as more particularly described in Exhibit9. The Property 089367.000006 603354862.9 was formerly (prior to a lot line adjustment) part of four legal parcels which totaled approximately 26.9 acres. The Property is located at the southeasterly corner of the intersection of Boyle Avenue and Fruitland Avenue, and bears Los Angeles County Assessors Parcel Numbers set forth above. The Property was used for manufacturing high -precision cast aluminum plates from about 1037 until about 2005. The Property is currently zoned for industrial use. The future property use will remain Industrial or commercial. The surrounding land uses are zoned Industrial or commercial. 1.2 Remedlation of the Property. 1.2.1 Remedial Investigations conducted at the Property Identified volatile organic compounds ("VOCs"), petroleum hydrocarbons (as Stoddard solvent), polychlorinated biphenyls ("PCBs"), and metals (mainly arsenic) in soil; VOCs and Stoddard solvent in soil vapor; and PCBs in concrete building floor slabs. These investigations also identified VOCs, Including trichloroethene, and tetrachloroethene, In groundwater beneath the Property. Groundwater is present at a depth of approximately 145 to 150 feet. Remedial investigation and screening level human health risk assessment ("HHRA") findings for the Property are summarized In the Feasibility Study (AMEC, May 2012). Based on the HHRA, site -specific remediation goals were established for the contaminants in soil vapor, soil, and concrete at the Property under future Industrial land use. Potential off -site beneficial use of groundwater was evaluated using maximum contaminant levels ("MCLs"). 1.2.2 Owner prepared a Remedial Action Plan (as amended, the "RAP") to mitigate concrete, soil and groundwater Impacts at the Property under the oversight of the Department. The RAP was prepared pursuant to an Imminent and Substantial Endangerment Determination and Consent Order signed by Owner on June 29, 2010 and by the Department on July 6, 2010 (the "Consent Order"), Pursuant to Code of Federal Regulations, Title 40, Subchapter R. Toxic Substances Control Act, the EPA has oversight for PCB -impacted soil and concrete. Mitigation of the PCB -Impacted concrete and soil was approved by the EPA. Pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) the RAP was released for public review and comment and subsequently approved by the Department on June 28, 2012. The RAP was amended by Addendum dated May 20, 2013. Based on site -specific remediation goals developed for contaminants present in concrete, soil, and soil vapor at the Property, Impacted media will be mitigated to industrial levels. 1.2.3 Implementation of the RAP began in December 2012, with the installation of soil vapor extraction ("SVE") systems to mitigate VOC-impacted soil in the northern portion of the Property and Stoddard solvent -impacted soil in the southern portion of the Property. PCB and metals impacted soil were excavated and removed from the Property as described in the RAP. The areas associated with the Property that were mitigated under the RAP are shown on Exhibit C. Currently, operation and maintenance ("O&M") activities for the SVE systems and groundwater monitoring are ongoing. The location of the SVE systems and groundwater monitoring wells are also shown on Exhibit C. The O&M of the SVE systems and groundwater .2- 069367.000006 603354862.9 monitoring wells will be pursuant to an Operation and Maintenance Agreement to be executed by Owner and the Department (the "O&M Agreement"), 1.2.4 Soil remaining in place at depths greater than 15 feet below native grade with PCBs concentration above the approved remediation goal (23 milligrams/kilogram) are covered with a physical underground warning barrier that consists of a concrete layer covered with an orange liner. The locations of the underground warning barriers are shown In Exhibit D. 1.2.5 As detailed in the Implementation Reports which were required under the Consent Order, approved by the Department and the EPA, soils within portions of the Property, to a depth of 15 feet or more below the surface, contain hazardous substances, which Include the contaminants of concern in the ranges set forth below, and as summarized in Exhibit E. Hazardous Substances remain at the Property above concentrations acceptable for unrestricted land use. Soil — VOCs, PCBs, TPH (to be updated with final results) Groundwater- VOCs (to be updated with final results) 1.2.8 Pursuant to the EPA's conditional approval of the PCB remediation, attached as Exhibit F are certain documents which are required by EPA to be Included In this Covenant. 1.3 Basis for Environmental Restrictions, As a result of the presence of Hazardous Substances on the Property, the Department and the EPA have concluded that It Is reasonably necessary to restrict the use of the Property in order to protect present or future human health or safety or the environment, and that this Covenant is required as part of the Department - approved remedy for the Property, The Department and the EPA have also concluded that the Property, as remediated and when used In compliance with the Environmental Restrictions (as defined below), does not present an unacceptable risk to present and future human health or safety or the environment. ARTICLE II DEFINITIONS Capitalized terms used in this Covenant, which are not otherwise defined, have the following meanings: 2.1 "Department' means the California Department of Toxic Substances Control and its successor agencies, if any. 2.2 "Enaineerina Controls" means refer to physical structures, such as vapor barriers or caps, which reduce exposure to contaminants. 2.3 "Environmental Restrictions" means all protective provisions, covenants, restrictions, requirements, prohibitions, and terms and conditions set forth in this Covenant. -3- 088387.000008 803354862.9 2.4 "Improvements" means any buildings, roads, driveways, improved parking areas, pipelines or other utilities, or other structures now or hereafter constructed on the Property. 2.5 "Leaee" means a lease, rental agreement, or any other document that creates a right to use or occupy any portion of the Property. 2.6 "Owner' means Pechiney Cast Plate, Inc, and any successor in interest, Including any heir or assignee who at any time holds title to all or any portion of the Property. 2.7 "Occu an 'means Owner, and any person or entity entitled by ownership, leasehold, or other legal relationship to the right to occupy any portion of the Property. ARTICLE III GENERAL PROVISIONS 3.1 Runs with the Land. This Covenant sets forth Environmental Restrictions that apply to and encumber the Property and every portion thereof, no matter how It Is Improved, held, used, occupied, leased, sold, hypothecated, encumbered or conveyed. This Covenant: (a) runs with the land pursuant to California Civil Code Section 1471, and California Health and Safety Code Section 25355.5; (b) Inures to the benefit of and passes with each and every portion of the Property; (c) is for the benefit of and Is enforceable by the Department and the EPA, and (d) is imposed upon the entire Property unless expressly stated as applicable only to a specific portion thereof. 3.2. Binding upon Owners/Occupants. This Covenant: (a) binds all Owners of the Property, their heirs, successors, and assignees; and (b) the agents, employees, and lessees of the Owners and the Owners' heirs, successors and assignees. Pursuant to Civil Code section 1471, all successive Owners of the Property are expressly bound hereby for the benefit of the Department; this Covenant, however, is binding on all Owners and Occupants, and their respective successors and assignees, only during their respective periods of ownership or occupancy except that such Owners or Occupants shall continue to be liable for any violations of, or non-compliance with, the Environmental Restrictions of this Covenant or any acts or omissions of such Owner or Occupants, as the case may be, during their ownership or occupancy. The provislons of this Covenant shall also be for the benefit of, and enforceable by, the EPA as a third party beneficiary. 3.3 Incorporation into Deeds and Leases, This Covenant shall be Incorporated by reference in each and every deed and Lease for any portion of the Property, 3.4 Conveyance of Property. Owner and any new Owner shall provide Notice (as defined herein) to the Department not later than thirty (30) calendar days after any conveyance or receipt of any ownership Interest In the Property (excluding Leases, and mortgages, liens, and other non -possessory encumbrances). The Notice shall Include the name and site code as -4- 039397.004009 603364082.8 listed on page one (1) of this Covenant. The Notice shall also Include the Assessor's Parcel Number(s) noted on page one (1), If the new Owner's property has been assigned a different Assessor Parcel Number, each such Assessor Parcel Number that covers the Property must be provided. The Department nor the EPA shall not, by reason of this Covenant, have authority to approve, disapprove, or otherwise affect proposed conveyance, except as otherwise provided by law or by administrative order. 3.5 Costs of Administering the Covenants to Be Paid by Owner. The Department has already Incurred and will in the future Incur costs associated with this Covenant. Therefore, Owner hereby covenants for Itself and for all subsequent Owners that, pursuant to California Code of Regulations, title 22, section 67391.1(h), Owner agrees to pay the Department's costs In administering, Implementing and enforcing this Covenant. If more than one person or entity is the Owner, then such costs will be subject to apportionment as provided in California Civil Code §1471(c), ARTICLE IV RESTRICTIONS AND REQUIREMENTS 4.1 Prohibited Uses. The Property shall not be used for any of the following purposes without prior written approval of the Department: (a) A residence, Including any mobile home or factory built housing, constructed or installed for use as residential human habitation. (b) A hospital for humans (c) A public or private school for persons under 18 years of age. (d) A day care center for children. 4.2 Soil Management. Soil management activities at the Property are subject to the following requirements in addition to any other applicable Environmental Restrictions: (a) No activities which will disturb the soil (e.g., excavation, grading, removal, trenching, filling, earth moving, mining or drilling) shall be allowed at the Property without a soil management plan pre -approved by the Department and the EPA in writing. (b) Any contaminated soils brought to the surface by grading excavation, trenching, or backfilling shall be managed In accordance with all applicable provisions of state and federal laws. (c) No activities which will disturb the underground warning barriers, shall be permitted without a soil management plan pre -approved by the Department and the EPA In writing. 4.3 Structures Remaining in Place. The locations of structures that remain in place at depths of ten (10) feet and fifteen (15) feet below native grade (including deep soil containing PCBs) are shown on Exhibit D. -5- 089387.000008 803364882.9 4.4. Prohibited Activities. The following activities shall not be conducted at the Property without the prior written approval of the Department; (a) Any activities that may alter, Interfere with or otherwise affect the integrity or effectiveness of the SVE systems or the groundwater monitoring wells. (b) Any activities that may alter, Interfere with or otherwise affect the integrity or effectiveness of any Engineering Controls. (c) Any uses or activities which do not preserve the physical accessibility to and integrity of, the SVE systems, the groundwater monitoring wells and any Engineering Controls, (d) Any activity (other than those required under the RAP) that would access, extract or use groundwater within the first water -bearing unit beneath the Property. (a) Any drilling for water, oil or gas. 4.5 Access fQf Department. The Department and the EPA shall have reasonable right of entry and access to the Property at reasonable times and upon reasonable advance notice to Owner or other Occupants (except in the event of an emergency), for inspection, investigation, remediation, monitoring and other activities as deemed necessary by the Department In order to protect the human health or safety, or the environment. Owner or other Occupants may be present at the time of any such entry. 4.6 Access for Implementina Operation and Maintenance. Subject to the provisions of that certain Access License Agreement between Owner and [Xebec], which was recorded In the office of the Los Angeles City Recorder, any person or entity responsible for implementing the O&M activities, If any, shall have reasonable right of entry and access to the Property upon reasonable advance notice for the purpose of implementing auch O&M activities until the Department determines that no further O&M Agreement activities are required. Owner or other Occupants may be present at the time of any such entry. All remediation systems associated with the O&M activities which are described In the RAP (including SVE systems, bloventing systems and groundwater monitoring wells) shall remain at the Property until the Department grants environmental closure. 4.7 Limitations on Access. Prior to the entry onto the Property by any person pursuant to Paragraphs 4.5 or 4.6, the person entering the Property (other than an employee of the Department or the EPA) shall provide Owner with evidence of commercially reasonable liability insurance coverage Insuring against personal injury and property damage. Further, any entry onto the Property by any person pursuant to Paragraphs 4.5 and 4.6 shall be at the sole risk of such person, and Owner shall not be liable for any damage to such person or such person's property, except to the extent caused by the gross negligence or willful misconduct of Owner, -6- 089387.000008 803354882.9 4.8 Inspection and Reporting Reculrements. Owner shall conduct an annual Inspection of the Property verifying compliance with this Covenant and shall submit an annual inspection report to the Department for its approval by January 31 of each year. The annual inspection report must Include the dates, times, and names of those who conducted the Inspection and reviewed the annual Inspection report. It also shall describe how the observations that were the basis for the statements and conclusions In the annual Inspection report were performed (e.g., drive by, fly over, walk in, etc,). If any violation is noted, the annual Inspection report must detail the steps taken to correct the violation and return to compliance, If Owner identifies any violations of this Covenant during the annual Inspection or at any other time, Owner must within ten (10) calendar days of identifying the violation; (a) determine the Identity of the party in violation; (b) send a letter advising the party of the violation of the Covenant; and (c) demand that the violation cease immediately, Additionally, a copy of any correspondence related to the violation of this Covenant shall be sent to the Department within ten (10) calendar days of its original transmission. ARTICLE V ENFORCEMENT 5.1 Enforcement. Failure of any Owner or Occupant to comply with this Covenant shall be grounds for the Department or the EPA to require modification or removal of any Improvements constructed or placed upon any portion of the Property In violation of this Covenant. Violation of this Covenant, such as failure to submit any required reports or other materials to the Department or the EPA, or the submission of any false statement, record or report to the Department or the EPA, shall be grounds for the Department or the EPA to pursue administrative, civil, or criminal actions as provided by law. ARTICLE VI VARIANCE, REMOVAL AND TERM 6.1 Variance from Environmental Restrictions. Any person may apply to the Department for a written variance from any of the Environmental Restrictions imposed by this Covenant. Such application shall be made in accordance with California Health and Safety Code section 25223. 6.2 Removal of Environmental Restrictions. Any person may apply to the Department or the EPA to remove any' of the Environmental Restrictions Imposed by this Covenant in its entirety. Such application shall be made In accordance with California Health and Safety Code section 25224. 6.3 Term. Unless ended In accordance with Paragragh 6.2, by law, or by the Department or the EPA In the exercise of Its discretion, this Covenant shall continue In effect in perpetuity. .7. 089367,000006 603354062.9 ARTICLE VII MISCELLANEOUS 7.1 No Dedication Intend. Nothing set forth in this Covenant shall be construed to be a gift or dedication, or offer of a gift or dedication, of the Property, or any portion thereof, to the general public or anyone else for any purpose whatsoever. 7.2 Recordation. Owner shall record this Covenant with all referenced Exhibits in the Office of the County Recorder of Loa Angeles County, California within ten (10) calendar days of Owner's receipt of a fully executed original from the Department, 7.3 Notices. Whenever any person gives or serves any Notice ("Notice" as used herein Includes any demand or other communication with respect to this Covenant), each such Notice shall be in writing and shall be deemed effective: (a) when delivered personally or by a national recognized overnight delivery service to the person being served or to an officer of a corporate party being served; or (b) five (5) calendar days after deposit in the mail, If mailed by United States mail, postage paid, certified, return receipt requested: To Owner: Pechiney Cast Plate Inc, 4700 Daybreak Parkway South Jordan, Utah 84095 And To Department:. Unit Chief To EPA: US EPA Region 9 TSCA Coordination Group Any party or the EPA may change its address or the individual to whose attention a Notice is to be sent by giving advance written Notice in compliance with this paragraph. 7.4 Partial Invalidity. If this Covenant or any of its terms are determined by a court of competent Jurisdiction to be Invalid for any reason, the surviving portion$ of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 7.5 Statutory References. All statutory or regulatory references Include successor provisions. 7.6 Incorporation of Exhibits, All Exhibits and attachments to this Covenant are Incorporated herein by reference. -8- 069367.000008 803364802.9 7.7 Governing Lacy. This Covenant is entered Into in the State of California and shall be Interpreted In accordance with the laws of the State of California. 7.8 Counterparts. This Covenant may be signed in multiple counterparts, each of which shall be deemed an original and all of which together shalt constitute one and the same instrument. IN WITNESS WHEREOF, Owner and the Department have executed this Covenant as of the dates written below, OWNER Pechiney Cast Plate, Inc, a Delaware corporation By: William Adams Title: President Date: DEPARTMENT California Department of Toxic Substances Control By: _ Title: Date: EXHIBITS Exhibit A— Legal description of the Property Exhibit B — Site Plan Exhibit C —Areas of Property Mitigated/Locadon of SVE Systems and Groundwater Monitoring Wells Exhibit D — Locations of Underground Warning Barriers and Structures Remaining In Place Below 10/15 Feet Exhibit E — Summary of implementation Report Information Exhibit F — Certain Required Documentation as Required by EPA 2009 PCB Application, Application Amendments, and the July 2, 2010 and July 1, 2011 Conditional approval letters and attachments. -9- 069367.000006 503304802.9 A Notary Public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) as. COUNTY OF ) On 20_ before me, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subacribed 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. NOTARY PUBLIC [SEAL] 080387.000008 603354862.9 A Notary Public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA as. COUNTY OF On 20_ 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. NOTARY PUBLIC (SEAL] -1t- o80367.000006 603354862.9 Exhibit G Promissory Note [attached hereto] Exhibit G 039367.000000 602733312.40 PROMSSORY NOTE (Purchase Price) $1,426,915 Juno 11,2015 Los Angeles, California 1. Aereement to Pey. FOR VALUE RECEIVED, Pechincy Cast Plate, Inc., a Delaware corporation ("Seller"), hereby promises to pay to the order of the City of Vernon ("Buyer"), the principal sum of One Million Four Hundred Twenty -Six Thousand Nine Hundred Fifteen and 00/100 Dollars ($1,426.915) (the "Loan'), at the place and in the manner hereinafter provided. 2, Interent. The Loan shall not bear interest. 3. Payment Terms. 3.1 Monthly Payments. Commencing on July 11, 2015 (or if such date is not a business day, then on the next succeeding business day), and on the IPh day of each calendar month thereafter (or if such date is not a business day, then on the next succeeding business day), an installment payment equal to Five Hundred Thousand and 00/100 Dollars ($500,000.00), shall. be due and payable to Buyer until such time as all principal under this Note has been paid in full. 3.2 Application of Payments. All payments and prepayments on account of the indebtedness evidenced by this Note shall be applied to the unpaid principal balance of dais Note. Any prepayment on account of the indebtedness evidenced by this Note shall not extend or postpone the due date or reduce the amount of any subsequent monthly payment of principal and interest due hereunder. 3.3 Method of Payments. All payments hereunder shall be paid by automatic debit, wire transfer, check or in coin or currency which, at the time or times of payment, is the legal tender for public and private debts in the United States of America and shall be made at such place as Buyer or the legal holder or holders of this Note may from time to time appoint in the payment invoice or otherwise in writing, and in the absence of such appointment, then at the offices of Buyer at 4305 Santa Fe Avenue, Vernon, California 90058. Payment made by check shall be deemed paid on the date Buyer receives such check. 3.4 Prepayment. This Note is prepayable without premium or penalty. 4. Events of Default The occurrence of any one or more of the following events shall constitute an "Event of Default" under this Note: 4.1 the failure by Sailer to pay any installment of principal payable or any other amount pursuant to this Note on the date when due (subject to notice and two (2) business days to cure), or 4.2 the occurrence of the dissolution, insolvency or winding -up, as applicable, of Seller, 5. Remedies. At the election of the holder hereof, and without notice, the principal balance remaining unpaid under this Note shall be and become immediately due and payable in full upon the 069367.000006 605874451.3 occurrence of any Event of Default. Failure to exercise this option shall not constitute a waiver of the right to exercise same in the event of any subsequent Event of Default. No holder hereof shall, by any act of omission or commission, be deemed to waive any of its rights, remedies or powers hereunder or otherwise unless such waiver is in writing and signed by the holder hereof, and then only to the extent specifically set forth therein. The rights, remedies and powers of the holder hereof, as provided in this Note are cumulative and concurrent, and may be pursued singly, successively or together against Seller, all at the sole discretion of the holder hereof. If any suit or action is instituted or attorneys are employed to collect this Note or any part hereof, Seller promises and agrees to pay all costs of collection, including reasonable attorneys' fees and court costs. 6. Other General ALxeements. 6.1 Time is of the essence hereof. 6.2 This Note is govgmed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the statutes, laws and decisions of the State of California. This Note may not be changed or amended orally but only by an instrument in writing signed by the party against whom enforcement of the change or amendment is sought. 6.3 Buyer shall not be construed for any purpose to be a partner, joint venturer, agent or associate of Tenant or of any lessee, operator, concessionaire or licensee of Seller in the conduct of its business, and by the execution of this Note, Seller agrees to indemnify, defend, and hold Buyer harmless from and against any and all damages, costs, expenses and liability that may be incurred by Buyer as a result of a claim by Seller that Buyer is such partner, joint venturer, agent or associate. 6.4 This Note shall inure to the benefit of and may be enforced by Buyer and its successors and assigns. 6.5 If any provision of this Note is deemed to be invalid by reason of the operation of law, or by reason of the interpretation placed thereon by any administrative agency or any court, Buyer and Seller shall negotiate an equitable adjustment in the provisions of the same in order to effect, to the maximum extent permitted by law, the purpose of this and the validity and enforceability of the remaining provisions, or portions or applications thereof, shall not be affected thereby and shall remain in full force and effect. 6.6 Seller may not assign its rights or obligations under this Now, or any part thereof, without the prior written consent of Buyer, which shall be given or withhold in Buyer's sole discretion. 6.7 If any attorney is engaged by Buyer or if Buyer incurs any costs, expenses or losses because of any Event of Default or to enforce or defend any provision of this Note, then Seller shall pay upon demand the reasonable attorneys' fees and all costs, expenses and losses so incurred by Buyer. 7. Notices. All notices provided for herein may be telocopied/facsimiled (with machine verification of receipt), sent by Federal Express or other overnight courier service, personally delivered or mailed registered or certified mail, return receipt requested. If a notice is sent by tolecopy/facsimile, it shall be deemed given when transmission is complete if (a) a confirmation of successful transmission is contemporaneously printed by the transmitting tolecopy machine and (b) a copy of the notice is sent to the recipient by overnight courier for delivery on the business day next following the date of telecopy 2 089367.000008 605874451.3 transmission. If a notice is personally delivered, sent by overnight courier service or sent by registered or certified mail, it shall be deemed given upon receipt or refusal of delivery. The address to be used in connection with notices are as set forth on Schedule I to this Note, or such other address as a party shall from time to time direct by notice given in accordance with this Section. 080987.000008 805674451.3 IN WITNESS WHEREOF, Seller has executed and delivered this Nate as of the day and year first written above. SELLER: Pachinay Cast Plate, Inc,, a Delaware corporation By: Name: William Adams Title: President S-1 080367.000006 605374451.3 Schedule 1 Notice Addresses Bever City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator F: 323,826.1491 a: mq_hitwwthQQi.vernon.ca.us Copy to: City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90059 Attn: City Attorney F: 323.826.1491 e: nrodriganglci.vemon.ca.us City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kung F: 323.826.1491 a: akunwalcixomon.ca.us DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. P: 213.330.7731 F: 213,330.7536 $: michael.hamiltonOdlaniper•com 089367.000000 005674451.3 Pechiney Cast Plate Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 Attention: Cheme Finan C-00 t: Baker Hostetler LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-7120 Attn: Bruce Greene, Esq. P: 310.442.8834 F:310.820.8859 E: bgreene®bakerlaw.com 089307.000006 608574481.3 Exhibit H Guaranty [attached hereto] Exhibit H 089387.000005 602733312AO GUARANTY AGREEMENT THIS GUARANTY AGREEMENT ("Agreement") has been made as of June 11, 2015 (the "Effective Date"), by and between the CITY OF VERNON ("Vernou'l and RENNECOTT HOLDINGS CORPORATION, a Utah corporation ("Guarantor"). WHEREAS, Vernon and Pechincy Cast Plate, Inc., a Delaware corporation ("Peohiney'), have entered into that certain Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 20, 2006, with attached Addendum dated March 20, 2006, as amended by that certain First Amendment to Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate, dated as of June 15, 2006, and as further amended by that certain Second Amendment to Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate, dated as of April 7, 2015, (collectively, the "Purchase Agreement"). Capitalized terms used but not defined herein have the meaning given to them in the Purchase Agreement. WHEREAS, the Purchase Agreement provides that as a condition precedent to the Closing for the benefit of Vernon, from and after the Closing, Guarantor shall guarantee the indemnity obligations of Peohiney described in Seotion 9.2 of the Purchase Agreement. WHEREAS, Guarantor holds an indirect interest in Peohiney and will derive material economic and other benefits from the transaction contemplated by the Purchase Agreement and therefore desires to execute this Agreement as further consideration for and in fulfillment of the conditions precedent to the Closing under the Purchase Agreement. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows; 1. Guarantee. Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Vernon the full, prompt and complete payment and performance when due of Pechiney's obligations set forth in Section 9.2 of the Purchase Agreement (the "Obligations"). 2. Guaranty Procedures/Enforcement of Agreement. a. If Peohiney fails or refuses to perform any of the Obligations, Vernon shall notify Guarantor in writing thereof and Guarantor shall promptly pay or perform such Obligations which Peohiney failed or refused to pay or perform; provided, however. that any failure of Vernon to notify Guarantor of such matter shall not impair or reduce the Obligations of Guarantor hereunder. b. Vernon may proceed to protect and enforce any or all of its rights under this Agreement by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Agreement or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Vernon shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. c. At the option of Vernon, Guarantor may bo joined in any action or proceeding commenced by Vernon against Pachiney in connection with or based upon Pechiney's 089367.000008 005874230.3 Obligations under the Purchase Agreement, and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Vernon first assert, prosecute or exhaust any remedy or claim against Pachiney or any other Person. 3, Representations and Warranties. Guarantor hereby represents and warrants to Vernon as follows: a. Organization, Authority and Execution. Guarantor is duly organized and validly existing under the laws of the State of Utah. The execution, delivery and performance by Guarantor of this Agreement have been duly authorized by all necessary action of Guarantor, and the execution, delivery and performance thereof by Guarantor does not require any consent or approval of any member, any affiliate of any member, any trustee or any parry to any contract or agreement to which Guarantor is a party, other than such consents and approvals as have been duly obtained or given. b. Enforceability. Ilia Agreement constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as enforceability may be limited by applicable equitable principles and bankruptcy, insolvency, reorganizatioq, moratorium or similar laws affecting the enforcement of creditors' rights generally. c. No Violation. The execution, delivery and performance by Guarantor of this Agreement, the consummation of the transactions contemplated hereby and compliance with the terms and provisions hereof does not (i) violate the organizational documents of Guarantor, (U) require any consent (other than any consent which has been duly received or given) under, or result in a breaoh or default of, any credit agreement, indenture, purchase agreement, mortgage, deed of trust, commitment, guaranty, agreement or any other instrument to which'Guarantor is a party or by which it or any of Its property may be bound or affected, or (iii) conflict with or violate any existing law, rule, regulation, judgment, order, writ, injunction or decrce of any government, governmental instrumentality, or court, domestic or foreign, having jurisdiction over Guarantor or any of its property. d. Beneficiary of Purchase Agreement. Guarantor represents that it is benefitted by the closing of the transaction contemplated under the Purchase Agreement, as it shares indirect beneficial ownership interest in Pechiney. 4. Termination. Guarantor shall have no further liability hereunder for events and circumstances first arising from and after the date that is the tenth anniversary of the Effective Date. The foregoing shall in no way serve to limit or terminate any obligations of Pachiney or Guarantor hereunder with respect to any action which has been commenced, prior to such date, by Vernon against Guarantor in relation thereto. S. Waivers. To the extent permitted by law and except as provided herein, Guarantor hereby waives and agrees not to assert or'take advantage of the following: (a) any right to requite Vernon (i) to proceed against any other Person, (ii) to proceed against or exhaust any security held by Vernon at any time, or (iii) to pursue any other remedy in Vernon's power or under any other agreement, in any case, before proceeding against Guarantor hereunder; (b) any defense that 0e0e7.00000a eo6674230•3 may arise by reason of the incapacity, lack of authority, death or disability of any other person or entity or the failure of Vernon to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person; (c) any demand, present for payment, protest and notice of protest, dishonor and nonpayment and all other notices, except as expressly required herein; (d) any defense based upon an election of remedies, splitting a cause of action or merger of judgments by Vernon; (a) any right or claim of right to cause a marshalling of the assets of Guarantor or Pechiney; (f) any principle or provision of law, statutory or otherwise, which Is or might be in conflict with the terms and provisions of this Agreement; and (g) any modifications of the Purchase Agreement or any Obligations of Guarantor by operation of law or by action of any court, whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in affect, or otherwise (except to the extent that such modifications were approved in writing by Vernon). 6. Miscellaneous. a. Unimpaired Liability. Except as provided heroin, the liability of Guarantor under this Agreement shall in no way be limited or impaired by (i) any extensions of time for performance required hereby or any other agreement, (ii) any other amendments to, modifications of, or supplements to any obligations of any party hereto, (III) any sale or transfer of all or part of the Property, (iv) the accuracy or inaccuracy of the representations and warranties made by any other party hereto or in any other document relating to the matters covered hereby, or (v) the release of any Person from performance or observance of any of the agreements, covenants, terms or condition contained herein or in any other document relating hereto by operation of law, voluntary act, or otherwise. b. Tine. Time is of the essence in the performance of Guarantor's obligations hereunder. c, Attorneys' Fees, If any party shall bring an action or proceeding against the other party by reason of the breach or alleged violation of any term or obligation hereof, or for the enforcement or Interpretation of any provision of this Agreement, the prevailing party in such action or proceeding shall be entitled to its reasonable costs and expanses of suit, including, but not limited to reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to judgment. d. No Waiver. No waiver by any party of the performance or satisfaction of any covenant or condition shall be valid unless in writing, nor shall it be considered to be a waiver by such party of any other covenant or condition hereunder. e. Entire Agreement. This Agreement contains the entire agreement between Guarantor and Vernon with respect to the Obligations, This Agreement may only be modified by subsequent written agreement signed by the party to be charged. f. Further Assurances. Each party shall execute and deliver to the other party all such documents that such other party may reasonably require to effect, confirm or otherwise perfect the covenants and agreements of the parties contemplated by this Agreement. g, Successors. This Agreement shall bind and inure to the benefit of the parties hereto and to their respective successors and assigns; provided, however, that none of the rights or obligations of Guarantor hereunder shall be transferred or assigned by Guarantor without the prior written consent of Vernon, which consent may be granted or withheld in 080367.000006 606674230.3 Vernon's sole discretion. Subject to the foregoing, Guarantor may delegate its duties hereunder but, no such delegation shall release Guarantor from Its obligations hereunder. h. Counterparts and Effectiveness. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement, and this Agreement shall only be affective if a counterpart is signed by all parties hereto. I. Severabili . In the event any provision of this Agreement shall be held to be invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. j. No Third Parly Beneficiaries. The parties hereto agree that it is their specific intent that no third party shall be a party to or a third party beneficiary of this Agreement, This shall not, however, affect the rights of any party pursuant to a separate agreement. k. JURY WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) OF ANY KIND WHATSOEVER BETWEEN ITSELF AND ANOTHER PARTY HERETO ARISING OUT OF OR IN ANY WAY RELATED TO TIME PROPERTY OR THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH PARTY ENTERING INTO AND PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT. Construction. The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. Section headings of this Agreement are solely for convenience of reference and shall not govern the interpretation of any of the provisions of this Agreement. References to "Sections" are to Sections of this Agreement, unless otherwise specifically provided. All references made (a) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (b) in the singular or plural shall be deemed to have been made, respectively, in the plural or singular as well, The word "Person" shall include a natural person and any legal entity. in. Governing I.aw. This Agreement shall be governed by and construed under the laws of the State of California, without regard to conflicts of law principles, n, Notices. All notices provided for herein may be telecopiod/facsimiled (with machine verification of receipt), sent by Federal Express or other overnight courier service, personally delivered or mailed registered or certified mail, return receipt requested. If a notice is sent by telecopy/facsimile, it shall be deemed given when transmission is complete if (a) a confirmation of successful transmission is contemporaneously printed by the transmitting tolecopy machine and (b) a copy of the notice is sent to the recipient by overnight courier for delivery on the bushiess day next following the date of telecopy transmission. If a notice is personally delivered, sent by overnight courier service or sent by registered or certified mail, it shall be deemed given upon receipt or refusal of delivery. The address to be used in connection with notices are as set forth immediately under the parties signature herein below, or such other address as a party shall from time to time direct by notice given in accordance with this Section I I (nl, 089367.000008 609674230.3 o. California Waivers Guarantor waives, to the fullest extent allowed by applicable law, any rights Guarantor might have pursuant to the terms of Sections of the California Civil Code or Code of Civil Procedure, or under similar statutes or case law in effect in the jurisdiction where Guarantor resides or in the State of California including without limitation the following: (a) the benefit of any statute of limitations affecting Guarantor's liability hereunder or the enforcement thereof, including, without limitation all rights and benefits, if any, arising under Section 359.5 of the California Code of Civil Procedure, (b) all rights and benefits arising under applicable law, including, without limitation, Section 2809 of the California Civil Code, purporting to reduce Guarantor's Obligations in proportion to the principal Obligations, and (o) without limiting the generality of the foregoing or any other provision hereof, Guarantor waives all rights and benefits which might otherwise be available to Guarantor under applicable statutes or case law of the jurisdiction governing this Agreement where Guarantor resides or where any real property securing the Obligations is located, including, without limitation, Division Third, Part 4, Title 13 of the California Civil Code Sections 2810. 2819, 2839, 2945, 2849, 2850, 2899, and 3433 regarding any loss of rights Guarantor may suffer by reason of any rights, powers, or remedies ofPeebiney in connection with any laws limiting, qualifying or discharging Pechiney's obligations under the Purchase Agreement or other agreements between the parties. [Remainder of page intentionally left blank, Signatures on the following pagel 069367.000006 605074230.3 relf/MT—VIOM Kennecott Holdings Corporation a Utah corporation By: Name: Title: ADDRESS FOR NOTICES: [Guarantor] Attn: F: E: With a copy to: Pachiney Cast Plata Inc. 4700 Daybreak Parkway South Jordan, Utah 84095 Attention: Chorea Finan Baker Hostetler LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-7120 Attn: Bruce Greene, Esq. F: 310.820.8859 E: ¢glgana bake law.com 089367.000008 605874230.3 VERNON: City of Vernon By: Name: Title: Approved as to form: DLA Piper UP (US), Special Counsel to Buyer ADDRESS FOR NOTICES: City of Vernon, California 4305 Santa Fe Avenuo Vernon, CA 90058 Attn: City Administrator F: 323.826.1491 E: mwhitworIh(@ci.vemon,ca.us City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Attorney F: 323.826.1491 E: nrodrj8ue i.vemgn,ca.us City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kong F: 323.826.1491 E: alwnafti.vemon.cam DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. F: 213.330.7536 E: mlchael.hamiltonOWaniner.com 089367.000008 606674230.3 EXHIBIT B ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENT ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the undersigned, City of Vernon ("Assignor"), hereby assigns to PI Fruitland, LLC, a Delaware limited liability company ("Assignee") all of Assignor's rights and obligations under that certain Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate dated as of March 20, 2006, with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of June 15, 2006 ("First Amendment") and as further amended by that certain Second Amendment to the same dated as of April 7, 2015 (the "Second Amendment", together with the Original Agreement, Addendum, and First Amendment, collectively the "Purchase Agreement"), by and between Pechiney Cast Plate, Inc., as seller, and Assignor, as buyer. This Assignment and Assumption of Purchase and Sale Agreement ("Assignment") is made in furtherance of the transaction contemplated by and between Assignor and Assignee as described in that certain Agreement regarding Assignment and Assumption of Purchase and Sale Agreement dated as of April _, 2015 (the "Agreement") and is made subject to the terms and conditions as set forth therein which are incorporated herein by this reference as if more fully set forth herein. By accepting this Assignment, Assignee assumes and agrees to perform all of the obligations of Buyer (as such term is defined under the Purchase Agreement) under the Purchase Agreement. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] WEST1255751754.5 IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the date and year written below. Dated: June _, 2015 ASSIGNOR: City of Vernon By_ Name: Title: Approved as to form: DLA Piper LLP (US), Special Counsel to Buyer ACCPETED BY: ASSIGNEE: PI FRUITLAND, LLC, a Delaware limited liability company By_ Name: Title: Exhibit B-1 WEST\255751754.5 EXHIBIT C POWER PURCHASE AGREEMENT [to be attached hereto] Exhibit C-1 WES71255751754.5 EXHIBIT C Power Purchase Agreement is currently under negotiation. The assignment is contingent on the power purchase agreement being completed by May 315Y, 2015 R,t e a Ago RECEIVED APR 21 2015 CITY CLERK'S OFFICE STAFF REPORT CITY ADMINISTRATION DATE: April 21, 2015 TO: hIonorable Mayor and City Council FROM: Mark C. Whitworth, City Administrator RE: Approval of the Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement with PI Fruitland, LLC for the property located at 3200 Fruitland Avenue Recommendations It is recommended that the City Council: 1. Find that approval of the agreement regarding assignment and assumption proposed in this staff report is exempt from the California Environmental Quality Act (CEQA) in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. 2. Approve the Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement with PI Fruitland, LLC for the property located at 3200 Fruitland Avenue, in substantially the same form as submitted herewith. Background At the April 7, 2015 meeting the City Council adopted Resolution No. 2015-17 which approved the purchase of approximately 14.53 acres of unimproved property located at 3200 Fruitland from Pechiney Cast Plate, Inc. for $24,173,085 for the purpose of redevelopment. The City is currently in escrow with Pechiney which is scheduled to close on June 11, 2015. Throughout recent years the City has received numerous offers from buyers to purchase the property located at 3200 Fruitland Avenue. In December 2014 the City began discussions with PI Fruitland, LLC and a manufacturing company to develop the entire 14.53 acres of the Pechiney property. The company has communicated that their product is machinery intense and therefore would require a large consumption of electricity as part of the manufacturing process and would be operational in approximately 3 years. The estimated development could cost approximately over $200,000,000 in building and equipment and would be funded through investors. In late January 2015, the City received an offer and began negotiations with PI Fruitland, LLC to purchase and develop the property for the manufacturing company. Below is a summary of the terms and agreement: 1) Property; The City will assign and transfer to PI Fruitland, LLC all of the City's rights, obligation and interest to purchase approximately 14.53 acres (633,083 square feet) of land. 2) Price: The Purchase Price is $21,775,000. 3) Deposit: $250,000 4) Due Diligence Period: May 26, 2015 5) Reserved Rights: The City will still receive approximately $2,026,915 ($600,000 + $1,426,915) from Pechiney as negotiated in the Pechiney agreement. 6) Financial Assurance; Sewer Credits: To insure PI Fruitland's tenant (manufacturing company) consumes the amount of power it presented, the City has negotiated a $1,250,000 financial assurance with PI Fruitland. The amount will be held in escrow and would require the manufacturing company to average minimum, for a trailing 12-month period, of 1) 3.3 megawatts of electrical power on or before January 1, 2019 2) 4.8 megawatts of electrical power on or before January 1, 2021 3) 8 megawatts of electrical power on or before January 1, 2023 If each of these hurdles are met by the dates listed above, 1/3`d (respectively) of the financial assurance would be disbursed back to PI Fruitland. If each of the hurdles are NOT achieved by the dates, then the City would earn 1/3`d (respectively) of the financial assurance. The City reserves all rights to 239 additional sewer credits units and is currently in negotiation with PI Fruitland and the manufacturing company regarding the potential purchase of those additional sewer credits. 7) Closing Date: June 11, 2015 S) Conditions of Closing: Citv's Conditions a) City Council's approval b) PI Fruitland's representations and warranties c) PI Fruitland shall have executed and delivered to the Escrow Agent at least one business day prior to the Closing Date the Assignment and Assumption of Purchase Agreement, the Power Purchase Agreement, and all documents required to be executed by the buyer under the purchase agreement for purposes of effectuating the Closing. d) PI Fruitland shall deliver to Escrow Agent on the closing date all funding disbursement. PI Fruitland's Conditions a) As of Closing Date, City's representations and warranties b) Conditions to closing under the Purchase Agreement shall have been satisfied or waived in accordance therewith. c) City shall have executed and delivered to the Escrow Agent on or prior to the closing date, the Assignment and the Power Purchase Agreement. 9) Brokerage: PI Fruitland will be paying Cushman & Wakefield commission fees which shall not be credited against, subtracted from or otherwise affect the Purchase Price paid by PI to City. However, the City has a previous commission agreement with Cushman & Wakefield for the original purchase of the Pechiney property. Fiscal Impact The assignment to PI Fruitland, LLC represents approximately $2.3 million less than the City paid to Pechiney to purchase the property. However, given the anticipated electric usage of the manufacturing company and the significant investment in development costs, the City believes it will recover the $2.3 million difference within two years of operation, and yield longer term financial benefits through ongoing electric usage and other taxes and fees. PI Fruitland, LLC 6272 E. Pacific Coast Highway, Ste E Long Beach, CA 90803 June 2, 2015 Via CerliRed Mail and Facsimile City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator Re: Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement ((he "Agreement") made and entered into by and between CITY OF VERNON (the " (E") and PI FRUITLAND, LLC ("PI"). Capitalized terms have the meanings as provided in the Agreement. Ladies and Gentlemen: Attached is the extension amendment we have mentioned, that needs to be executed and returned today signed by the City. If we do not receive this fully signed back today before 5:00, then please accept this letter as notice pursuant to the Agreement that PI hereby terminates the Agreement effective as of today. %Sincerely, (�Q Neil Mishurda cc: Mike Slinger Chicago Title lnsU•ance Company 725 S. Figueroa St., Suite 200 Los Angeles, CA 90017 City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Hema Patel, Esq., City Attorney City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kung WESIV58615194.1 DLA Piper LL,P (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. P: 213.330.7731 F: 213,330.7536 E: niichael.hamilton@dlapiper.com WFS'1125R61539d.1 PI Fruitland, LLC 6272 E. Pacific Coast Highway, Ste E Long Beach, CA 90803 June 9, 2015 Via CerHfieil Mail and Tnesinrile City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator Re: Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement (the "Agmemenl") made and entered into by and between CITY OF VERNON (the "City") and PI FRUITLAND, LLC ("PI"). Capitalized terms have the meanings as provided in the Agreement. Ladies and Gentlemen: Attached is the extension amendment to allow for the time required to formally amend the Agreement. If we do not receive this fully signed back today before 5:00, then please accept this letter as notice pursuant to the Agreement that PI hereby terminates the Agreement effective as of today. Sincerely, � //���� NeilNeil Mt�J�'�"�— cc: Mike Slinger Chicago Title Insurance Company 725 S. Figueroa St., Suite 200 Los Angeles, CA 90017 City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Hema Patel, Esq., City Attorney City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kong WHS"I1258615394.1 DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. P: 213.330,7731 F: 213.330.7536 E: michael.hamilton@dlapiper.com wcST\25e615394.1 FIRST AMENDME THIS FIRST AMENDMENT (" Amendnteut") is oracle as of May 26,.2015 between CITY OF VERNON (the "City") and P1 FRUITLAND, LLC, a Delaware limited liability. company RECITALS; A. The parties executed that Agreement Regarding Assignment and Assumption of Purehase;and Sale Agreemont datecl March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth.. B. Except is ottionvise expressly provided forhersin, capitalizeclte•uts used herein slioll have the same meaning as sot forth in the Agreonnent. NOW, TI[EREFORI3, in consideration of the premises and for good and 'valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: 201:5I, The Due Diligence. Period is extended to 5:00 p.m. Los Angeles tine ort June 12, 2, The remaining terms and conditions of the Agreement remain in fill] force and effect. This Anicndntent may executed by the parties hereto individually or III combination, in one or more counterparts, each of which shall be an original and all of which Will constitute on'e Imd rite same Amendment. The parties hereby agree thatart executed facsimile cony of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OP VERNON BY; Name: nrIZC. 141 ihrorth Title: CAA lminisuiitor M-PEST: Mfll lit El A)'flla Clty Q C'$ APPROVED A$ TO�FORM: 1-lenia-Patel, City Anorney PI FRUITLAND, Li,G', a Delaware limited liability company Name: rtI�/(- Title:_ IMiHfirt /C SECOND AMENDMENT THIS SECOND AMENDMENT ("Amendment') is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PP'). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement'), and now desire to amend the terms ofthe Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 9, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either patty and be deemed an original for purposes hereof. CITY OF VERNON By: Name: Title: PI FRUITLAND, LLC, a Delawarelimited dlliability �company Name: 1,07e� THIRD AMENDMENT THIS SECOND AMENDMENT ("Amendment") is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PI"). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 16, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON By: Name: Title: PI FRUITLAND, LLC, a Delaware limited liability company Title: THIRD AMENDMENT THIS SECOND AMENDMENT ("Amendment") is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PI"). RECITALS: A. The patties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the patties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 16, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON Name: Title: PT FRUITLAND, LLC, a Delaware limited liability company Name• /G .H/SJ /124Df- Title: AMENDMENTS PI Fruitland, LLC 6272 E. Pacific Coast Highway, Ste E Long Beach, CA 90803 June 2, 2015 Via Certified Mail and Facsimile City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator Re: Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement (the "Agreement") made and entered into by and between CITY OF VERNON (the "Cift,") and PI FRUITLAND, LLC ("Pl"). Capitalized terms have the meanings as provided in the Agreement. Ladies and Gentlemen: Attached is the extension amendment we have mentioned, that needs to be executed and returned today signed by the City. If we do not receive this fully signed back today before 5:00, then please accept this letter as notice pursuant to the Agreement that PI hereby terminates the Agreement effective as of today. Sincerely, Neil Mishurda cc: Mike Slinger Chicago Title Insurance Company 725 S. Figueroa St., Suite 200 Los Angeles, CA 90017 City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Hema Patel, Esq., City Attorney City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kung wES71258615394,1 DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. P: 213.330.7731 F: 213.330.7536 E: niieiiael.halfiilton@dlapiper.com WFS'R258615394.1 PI Fruitland, LLC 6272 E. Pacific Coast Highway, Ste E Long Beach, CA 90803 June 9, 2015 Via Certirerl M(ril and Frresindle City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator Re: Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement (the "A reenrent") made and entered into by and between CITY OF VERNON (the "Cl t , ) and PI FRUITLAND, LLC ("PI"). Capitalized terms have the meanings as provided in the Agreement. Ladies and Gentlemen: Attached is the extension amendment to allow for the time required to formally amend the Agreement. if we do not receive this fully signed back today before 5:00, then please accept this letter as notice pursuant to the Agreement that PI hereby terminates the Agreement effective as of today. Sincerely, Neil Mishurda cc: Mike Slinger Chicago Title Insurance Company 725 S. Figueroa St., Suite 200 Los Angeles, CA 90017 City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Hema Patel, Esq., City Attorney City of Vernon, California 4305 Santa Fe Avenue Vernon, CA 90058 Attn: Mr. Alex Kung wESIA258615394.1 DLA Piper LLP (US) 550 S. Hope Street Suite 2300 Los Angeles, CA 90071 Attn: Michael Hamilton, Esq. P: 213.330.7731 F: 213.330.7536 E: michael.liamilton@dlapiper.coln NEST\258615394.1 FIRST AMENDMENT THIS FIRST AMENDMEN"I' ("Amen(Iment") iswade as of May 26, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PI"). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terns used herein shall have the same meaning as set forth in the Agreement. NOW, 'I HERUORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: I. The Due Diligence Period is extended to 5:00 p.m. Los Angeles time can June 2, 2015. 2. The remaining terms and conditions of the Agreement remain in fill foree and effect. "Phis Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON Name: 11-k C. Whitworth _ Title: City Administrator A'I7EST: Maria EI Ayala, City (ale .k APPROVED AS TO FORM: c Henla Patel, City Attorney I� PI FRUITLAND, LLC, a Delaware limited liability company Name: Alm/ t- "Title: SECOND AMENDMENT THIS SECOND AMENDMENT ("Amendment") is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PP). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 9, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON By:_ Name: Title: PI FRUITLAND, LLC, a Delaware limited liability company By: --gyp'--_ Name: ,t.,"le- 2l/Jr i/U Title;_�^GG'l�s�t �S THIRD AMENDMENT THIS SECOND AMENDMENT ("Amendment") is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PI"). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 16, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON By:_ Name: Title: PI FRUITLAND, LLC, a Delaware limited liability company By: Name: THIRD AMENDMENT THIS SECOND AMENDMENT ("Amendment") is made as of June _, 2015 between CITY OF VERNON (the "City") and PI FRUITLAND, LLC, a Delaware limited liability company ("PI"). RECITALS: A. The parties executed that Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated March 20, 2006 (the "Agreement"), and now desire to amend the terms of the Agreement as hereinafter set forth. B. Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto acknowledge and agree as follows: The Due Diligence Period is extended to 5:00 p.m. Los Angeles time on June 16, 2015. 2. The remaining terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment. The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof. CITY OF VERNON By: Name: Title: PI FRUITLAND, LLC, a Delaware limited liability company 13y. Name: ?"PI/G _1H/S11#11 0-^,¢---- Title: 140b9it,. -.----