EX-10.2
11
v195082_ex10-2.htm
EAST AREA ONE - SANTA
XXXXX
REAL ESTATE ADVISORY
MANAGEMENT CONSULTANT AGREEMENT
AMENDMENT NO.
1
THIS Amendment (this “Amendment”) is
made and entered into as of this 24th day of August,
2010 by and between the Limoneira Company (“Limoneira”), a Delaware corporation,
and Parkstone Companies, Inc. (“Parkstone”), a
California corporation, to
supplement and amend certain terms of that certain
Real Estate Advisory
Management Consultant Agreement dated as of April 1, 2004 between Limoneira and
Parkstone (the “Original Agreement”). Limoneira and Parkstone are
collectively referred to as the “Parties” and each individually as a
“Party.”
RECITALS
|
A.
|
Limoneira
intends to entitle, for future mixed-use development, approximately 500
acres of land commonly referred to as East Area One located in the County
of Ventura, California; and
|
|
B.
|
Parkstone
was engaged by Limoneira pursuant to the Original Agreement to manage the
land entitlement process of the
Property;
|
|
C.
|
The
Parties have, by their course of conduct, continued the terms of the
Original Agreement; and
|
|
D.
|
The
Parties wish to supplement and amend the Original Agreement as set forth
below.
|
NOW, THEREFORE, for and in
consideration of the mutual benefits to be derived herefrom the parties agree as
follows:
1. Amendment of Original
Agreement. Effective as of the date hereof, the Original
Agreement shall be amended as follows:
(a) Exhibit
A to the Original Agreement is hereby amended to include the
following:
East Area One Entitlement
Process
Parkstone
shall manage, organize and complete in a timely and workmanlike manner the
entitlement process phase (the “Project”) for an approximate 500 acre master
plan subdivision located on land commonly referred to as East Area One as
further described on Annex 1 attached hereto (the “Property’). In
connection with the Project, the duties and obligations of Parkstone shall
include:
1. preparing
a specific plan for the Project and corresponding applications and formal
submittals (the “Specific Plan”) to the City of Santa Xxxxx (the
“City”);
2. obtaining
City approval of the Specific Plan and a Certified Environmental Impact Report
(a “Certified EIR”);
3. managing
the process through a SOAR vote to successful completion and the subsequent
annexation of land into the City; and
4. managing
the process for LAFCO approval of annexation to the City.
(b) The
first section of Exhibit B to the Original Agreement titled “Strategic Planning
(Overall Portfolio)/Project Feasibility Analysis and Project Consulting (Site
Specific)” is hereby deleted in its entirety and replaced with the
following:
Monthly Fee and Success
Fee
In
consideration of the Services to be provided by Parkstone, Limoneira agrees to
pay Parkstone fee(s) in the following amounts and times:
1. a
monthly fee of $20,000 (the “Monthly Fee”) to be paid on the __ of each month
until the annexation of the Property by the City (the “Trigger Event”),
plus
2. a
success fee (the “Success Fee”) equal to the amount derived by multiplying (a)
4% times (b) the Property Value reduced
by the sum of (i) the Base Land Value plus
(ii) Selling Costs plus
(iii) Capitalized Costs. The Success Fee shall be due and payable 120 days
following the earlier to occur of (x) the sale of all or any portion of the
Property (which shall include Limoneira’s entrance into an arm’s length written
agreement with any unrelated third party pursuant to which such third party (a
“Third Party Investor”) makes a material investment in the Property (a “Third
Party Investment”)), (y) the determination of an Appraised Value or (z) the
second anniversary of the Trigger Event. The Success Fee, if any,
shall be paid, in Limoneira’s sole and absolute discretion, in (i) cash, (ii)
shares of Limoneira common stock (“Common Stock”) using a price per share equal
to the average of closing prices of the Common Stock on the NASDAQ Global Market
for the 20 trading days ending on the last trading day prior to the earlier to
occur of (x), (y) or (z) above; provided, however, that the price per share
shall be no less than $16.00 (as adjusted for any stock split, reverse stock
split, merger, consolidation, statutory share exchange or similar transaction)
or (iii) any combination of the foregoing. In the event Limoneira
terminates this Agreement for reasons other than in the event of a material
breach by Parkstone that has not been cured, if capable of being cured, within
30 days of receipt of written notice from Limoneira of such breach during the
entitlement process of the Property, Parkstone shall be entitled to receive 90%
of the Success Fee (the “Early Termination Fee”) in recognition of the
achievement of submitting an application for a Specific Plan, obtaining approval
of a Specific Plan and Certified EIR and receiving a successful SOAR
vote. The Early Termination Fee, if any, shall be paid in the same
manner and at the same time as the Success Fee. The provisions of
this paragraph shall survive the expiration or termination of the
Agreement.
- 2
-
For
purposes of the Monthly Fee and the Success Fee, the following terms have the
meanings specified:
a. “Appraised
Value” shall mean the value determined by a qualified and licensed appraiser
acceptable to both Limoneira and Parkstone that is familiar with the type and
scope of development as the Property, provided such value is acceptable to both
Parties. In determining an Appraised Value, the appraiser shall use
the methodology described in Annex 2 attached hereto. Parkstone may
engage an appraiser to determine the Appraised Value of the Property at anytime
following the occurrence of the Trigger Event until the second anniversary of
the Trigger Event. If Parkstone has not determined the Appraised
Value by the second anniversary of the Trigger Event, Limoneira may engage an
appraiser to determine the Appraised Value of the Property. The costs
and expenses of such appraisal shall be shared equally by the
Parties. If the Appraised Value is agreed upon by the Parties before
all or any portion of the Property is sold, the Appraised Value shall be used to
determine the Property Value. Limoneira or Parkstone, as applicable,
shall promptly notify the other party in writing of such Appraised Value and the
other party, promptly upon receipt of such notice, shall notify the notifying
party whether the Appraised Value determined by the agreed upon appraiser is
acceptable. In the event that the Appraised Value determined by the
agreed upon appraiser is unacceptable to either party, then each party shall, at
its sole costs and expense, select an appraiser within 15 days of Limoneira’s or
Parkstone’s, as applicable, receipt of notice of the rejection of the Appraised
Value and the average of the rejected appraisal and the two new appraisals shall
be the Appraised Value. In the event that Limoneira and Parkstone
cannot agree on an appraiser within 30 days from the date a Party was notified
of the other Party’s initial proposed appraiser, then each party shall, at its
sole costs and expense, select an appraiser within 15 days of the expiration of
the foregoing period. The two selected appraisers shall then select a
third appraiser, the costs of which will be shared equally by the Parties, each
of which will appraise the Property, and the average of the three appraisals
shall be the Appraised Value. Each appraiser selected by the Parties
or a Party shall be instructed to use every reasonable effort to perform its
services as soon as practicable after such selection, and in any case, within 30
days after being selected by the applicable Party or Parties.
b. “Base
Land Value” shall mean $28,122,900.
c. “Capitalized
Costs” shall include the purchase price paid for the acquisition of the Xxxxxx
Property, which property is described on Annex 1 attached hereto, plus any and
all costs incurred and capitalized by Limoneira in accordance with United States
generally accepted accounting principles in connection with the Project up to
and including the determination of the Property Value, including, but not
limited to costs of architects, engineers and other third party consultants,
legal fees relating to the entitlement of the Property and acquisition of the
Xxxxxx Property, management fees paid to Parkstone, and any improvements made to
the Property not related to its current agricultural use.
- 3
-
d. “Property
Value” shall mean:
(i) if
established prior to the sale of any portion or all of the Property, the
Appraised Value;
(ii) in
the event of a sale of 100% of the Property before an Appraised Value is
established, the aggregate sale price of the Property; or
(iii) in
the event of a sale of less than 100% of the Property or a Third Party
Investment before an Appraised Value is established then the sale price of that
portion of the Property sold or, in the case of a Third Party Investment, the
value of the Property as agreed by Limoneira and the applicable Third Party
Investor for purposes of quantifying the Third Party Investment, will be used to
determine the value of 100% of the Property, based on prorata acreage, unless
either party objects thereto based on the reasonable belief that such value is
not representative of the Property as a whole (e.g., land use of that portion
carries a higher or lower value relative to the whole, or the location of such
property is more or less desirable than all of the Property taken as a whole),
and in such event the Appraised Value shall be used to determine the Property
Value.
e. “Selling
Costs” shall mean any and all costs incurred by the Seller in connection with or
relating to the sale of the Property, including, but not limited to, title
insurance, survey, broker commissions, transfer taxes, recording costs,
attorneys’ fees relating to the sale and costs to cure any title or survey
objections by the buyer.
(c) Section
17 of the Original Agreement is hereby deleted in its entirety and replaced with
the following:
17. Term of Agreement;
Survival. This Agreement shall remain in force and effect
until the occurrence of the Trigger Event, provided, however, that either party
may terminate this Agreement for any reason whatsoever by giving not less than
30 days prior written notice to the other party.
2. Representations and
Warranties, Acknowledgements and Agreements of
Parkstone. Parkstone represents and warrants to Limoneira and
acknowledges and agrees as of the date hereof as set forth on Annex 3
attached hereto.
3. Attorney’s
Fees. If any action is brought by either party against the
other party, relating to or arising out of this Amendment or the Original
Agreement as amended by this Amendment, the transactions described herein or the
enforcement hereof, the prevailing party shall be entitled to recover from the
other party reasonable attorneys’ fees, costs and expenses incurred in
connection with the prosecution or defense of such action.
- 4
-
4. Effect on Original
Agreement. Each reference in the Original Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall
mean and be a reference to the Original Agreement as amended
hereby. Except as specifically modified by the terms of this
Amendment, all of the terms, provisions, covenants, warranties and agreements
contained in the Original Agreement shall remain in full force and effect and
are hereby ratified.
5. Headings. Section
headings herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Amendment.
6. Governing
Law. Each of the undersigned hereby agrees that this Amendment
and the rights and obligations hereunder of all parties hereto shall be governed
by and construed under the substantive laws of the State of
California without
reference to the conflict of laws principles thereof.
7. Severability. If
any provision of this Amendment is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions hereof shall remain in full force
and effect. Any provision of this Amendment held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
8. Counterparts. This
Amendment may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same
agreement. Any party may execute this Amendment by electronic
signature (including facsimile or scanned email), and the other party will be
entitled to rely on such signature as conclusive evidence that this Amendment
has been duly executed by the first party.
[Signature page immediately
follows.]
- 5
-
IN WITNESS HEREOF, Limoneira
and Parkstone have executed this Amendment effective as of the date first above
written.
|
Limoneira
Company
| |
Parkstone
Companies, Inc.
| |
| | | | | | |
| | | | | | |
|
By:
|
| |
By:
|
| |
| | | | | | |
|
Its:
|
| |
Its:
|
| |
| | | | | | |
|
Date:
|
| |
Date:
|
| |
Annex 1
All that
certain real property situated in the County of Ventura, State of
California
with the following Ventura County Assessor Parcel Numbers:
Assessor
Parcel Number: 040-0-180-565
Assessor
Parcel Number: 040-0-180-435
Assessor
Parcel Number: 107-0-200-115
Annex 2
PROPOSED
VALUATION METHODOLOGY - EAST AREA I PROJECT LIMONEIRA COMPANY AND PARKSTONE
& COMPANY
VALUATION
FORMULA
|
·
|
1,500
Residential Lots to be sold to homebuilders - Appraised
Value
|
|
·
|
250,000
sf commercial property to be sold to builders - Appraised
Value
|
|
·
|
150,000
sf light industrial property to be sold to builders Appraised
Value
|
|
·
|
Agreed
upon start date for infrastructure to create finished lots - Per
Appraiser
|
|
·
|
Agreed
upon sales rate for finished lots - Per
Appraiser
|
|
|
·
|
This
will include annual absorption rate
assumptions
|
|
·
|
Agreed
upon costs for total project and estimated timing of all costs (including
conditions of Development Agreement) - Per the cost estimates of
Limoneira/Parkstone's consultants
|
|
·
|
Assumed
build-out period of project - Per
Appraiser
|
|
·
|
Assumed
lot sales annually - Per Appraiser
|
|
|
·
|
Eg.,
150 lots Yr. 1, 200 lots Yr. 2, 300 lots Yr. 3.
Etc.
|
|
·
|
Total
inflows = Lot Sales + Commercial Property Sales + Light Industrial
Sales
|
|
·
|
Total
outflows = Development Agreement Costs + Fees & Housing + School Costs
+ Infrastructure Costs
|
|
·
|
Net
Outflows / Inflows Annually
|
|
·
|
Discount
Rate - Determined by Appraiser
|
|
·
|
Net
Present Value of Project Determined
|
Annex 3
(a) Organization and Standing;
Authority; Enforceability. Parkstone is duly organized or
formed, validly existing in good standing under the laws of the jurisdiction of
its incorporation or formation and has all requisite power and authority to
execute and deliver this Amendment and to perform its obligations
hereunder. The execution and delivery by Parkstone of this Amendment
and the consummation by Parkstone of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of
Parkstone. This Amendment has been duly executed and delivered by
Parkstone, and this Amendment constitutes the legal, valid and binding
obligation of Parkstone, enforceable against Parkstone in accordance with its
terms.
(b) Access to and Evaluation of
Information Concerning Limoneira; General
Solicitation. Parkstone has:
(i) such
knowledge, sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of acquiring the Common Stock,
including the risk that the Common Stock could lose the entire value of the
Common Stock, and has so evaluated the merits and risks of such
acquisition;
(ii) made
such independent investigation of Limoneira, its management, and related matters
as Parkstone deems to be necessary or advisable in connection with the
acquisition of the Common Stock, and is able to bear the economic and financial
risk of purchasing the Common Stock (including the risk that Parkstone could
lose the entire value of the Common Stock); and
(iii) not
been offered the Common Stock by any means of general solicitation or general
advertising.
(c) Accredited Investor; No
Public Distribution Intent. Parkstone is:
(i) an
“accredited investor” as defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the “Securities Act”); and
(ii) purchasing
the Common Stock for Parkstone’s own benefit and account for investment only and
not with a view to, or for resale in connection with, a public offering or
distribution thereof.
(d) No
Registration. The Common Stock that may be received by
Parkstone will not have been registered under the Securities Act or the
securities laws of any other jurisdiction and the offer and sale of the Common
Stock is being made in reliance on one or more exemptions for private offerings
under Section 4(2) of the Securities Act and applicable securities
laws. Accordingly, no sale, transfer or other disposition of (whether
with or without consideration and whether voluntarily or involuntarily or by
operation of law) (“Transfer”) of any of the Common Stock received by Parkstone
is permitted unless such Transfer is registered under the Securities Act and
other applicable securities laws, or an exemption from such registration is
available.
