EXHIBIT 99.7
AGREEMENT FOR TRANSFER OF
OWL CREEK AND ESCROW INSTRUCTIONS
This Agreement for Transfer of Owl Creek and Escrow Instructions (this
"Agreement") is made as of the 26th day of February, 1999, by and between Scotia
Pacific Company LLC, a Delaware limited liability company ("Scotia"), and the
State of California acting by and through the California Wildlife Conservation
Board ("State").
RECITALS
A. Pursuant to Section 5(a) of Assembly Xxxx 1986 set forth in Chapter 615
of the Statutes of 1998 of the State of California ("AB 1986"), up to
$80,000,000.00 was appropriated for the purchase of certain real property in
Humboldt County, California commonly known as "Owl Creek". Owl Creek is depicted
on Exhibit A hereto and is identified as "Owl Creek" (MMCA) in the draft Habitat
Conservation Plan submitted by Pacific Lumber Company, dated July, 1998, and is
referred to herein as the "Property". The State desires to acquire the Property
as authorized in AB 1986, as provided for herein.
B. Title to the Property is held as of the date hereof by Scotia. Scotia
may convey Owl Creek to an affiliated company or companies prior to its transfer
to State on the condition that such transferee assume in writing the obligations
under this Agreement. Scotia and any affiliated company or companies to whom Owl
Creek may be conveyed are hereinafter individually and collectively referred to
as the "Transferor." Scotia is willing to cause the conveyance of the Property
to State on the terms set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1: CONVEYANCE OF PROPERTY
Scotia agrees to convey or obtain the agreement of the Transferor to convey
the Property to the State, and the State agrees to acquire the Property, on the
terms and conditions set forth in this Agreement, subject, however, to the
termination rights of Scotia set forth in Article 3 below.
ARTICLE 2: CONSIDERATION
2.1 Consideration Amount. As used herein, the term "Consideration Amount"
shall mean an amount equal to the lesser of $79,650,000 or the fair market value
of the Property (defined as "FMV" in Section 2.3 below), as
determined pursuant to Section 2.3. As consideration for conveyance of the
Property to the State, the State agrees to pay the Consideration Amount in cash
(except as hereinafter provided) at the "Closing" (as defined below) to an
entity designated by Scotia at the Closing. Notwithstanding anything in this
Agreement to the contrary, the Consideration Amount, together with any costs to
be borne by State under this Agreement, shall not in the aggregate exceed the
total amount of funds allocated to the acquisition of the Property and the costs
of the transaction herein under AB 1986. Notwithstanding anything herein to the
contrary, the State, at its option and election in the event it obtains
legislative authorization to do so (the "Legislation"), may, after notice to
Transferor at least 30 days prior to the Closing Date, pay the Purchase Price to
Scotia in four equal annual consecutive installments with the first installment
being paid on the Closing Date. The Closing Date shall occur no later than the
later of the State fiscal year immediately following the fiscal year in which
close of escrow occurs pursuant to that certain Agreement for Transfer of
Grizzly Creek and Escrow Instructions and Option Agreement dated of even date
herewith, by and between the Pacific Lumber Company and the State or June 30,
2001. The first such installment shall be paid at the Closing. The balance of
the Consideration Amount shall be evidenced by a Promissory Note in negotiable
form reasonably acceptable to the parties (the "Note"), and at the discretion of
Scotia, be secured by a Deed of Trust in form reasonably acceptable to the
parties (the "Deed of Trust"), encumbering the Property and recorded at the
Closing (collectively, the "Debt Instruments"). Transferor shall not object or
speak in opposition to the Legislation and shall use its best efforts regarding
supporting the Legislation.
2.2 Legal Description. Scotia shall promptly prepare a legal description of
the Property and provide it to State. Such description shall be delivered to
State no later than 60 days after the date of this Agreement.
2.3 Determination of the Fair Market Value ("FMV"). The fair market value
("FMV") of the Property shall be determined by licensed and qualified real
estate appraisers in accordance with the requirements of AB 1986. The appraisal
and its review and approval by the State Department of General Services (DGS),
as provided in Section 7.4 below shall be completed within one year from the
date hereof ("Approved Appraisal") and a copy shall be promptly provided to
Scotia. Scotia shall have the right within 15 days after receipt of the Approved
Appraisal to terminate this Agreement upon notice to the State if it determines,
in its reasonable discretion, that the methodology of such Approved Appraisal
was improperly chosen or applied inappropriately. In such event (a) this
Agreement and the Escrow shall automatically terminate, (b) all funds and
documents delivered by either
party to the Escrow shall be returned to the party having delivered the same,
(c) all escrow cancellation charges shall be paid 50% by State and 50% by
Scotia, and (d) neither party shall have any further liability hereunder.
ARTICLE 3: PROCEDURE AFTER OBTAINING APPROVED APPRAISAL
3.1 FMV Less Than $79,650,000. If the FMV set forth in the Approved
Appraisal is less than $79,650,000, then Scotia shall have the right to
terminate this Agreement by giving written notice to State within 30 days after
Scotia's receipt of the Approved Appraisal (the "Termination Period"); provided,
however, that Scotia's failure to timely give said notice shall be deemed an
election to proceed. Upon State's receipt of Scotia's notice of termination,
this Agreement shall automatically terminate, and neither party shall have any
further liability hereunder. However, if the Termination Period passes and
Scotia has not given notice of termination as described above, then (a) the
Consideration Amount shall equal the FMV as provided in Section 2.1 above, (b)
promptly after expiration of the Termination Period the parties shall deliver a
fully executed original of this Agreement to the "Title Company" (as defined
below), together with a copy of the Approved Appraisal, and (c) the parties
shall proceed to close the transaction herein as soon as possible but in no
event later than the "Outside Date" (as defined below).
3.2 FMV Greater Than or Equal to $79,650,000. If the FMV set forth in the
Approved Appraisal is more than or equal to $79,650,000, then (a) the
Consideration Amount shall equal $79,650,000 as provided in Section 2.1 above,
(b) the parties shall promptly deliver a fully executed original of this
Agreement to the Title Company, and (c) the parties shall proceed to close the
transaction herein as soon as possible but in no event later than the Outside
Date.
ARTICLE 4: OPENING ESCROW
4.1 Opening Escrow. Within 30 days after completion of the Approved
Appraisal, an escrow shall be opened at a title company selected by the State.
Title Company shall be the party responsible for filing the required Form 1099B
(or other required form) with the U.S. Internal Revenue Service.
4.2 Escrow Instructions. This Agreement constitutes escrow instructions to
Title Company. State and Scotia shall promptly execute such supplemental escrow
instructions as Title Company shall reasonably request; provided, however, that
if there is any inconsistency between the terms of this Agreement and such
supplemental escrow instructions, the
terms of this Agreement shall control.
4.3 Schedule for Closing. The closing of the transaction contemplated
herein (the "Closing") shall occur at the time that all the conditions precedent
set forth in Article 7 hereof have been satisfied or waived, all of the
fully-executed documents and funds described in Article 6 hereof have been
delivered to Title Company, and on the day the "Grant Deed" (as defined below)
is recorded with the Humboldt County Recorder (the "Closing Date"). The Closing
shall occur no later than the "Outside Date," as defined in Section 4.4 hereof.
4.4 Outside Date. The deadline for closing the Escrow (the "Outside Date")
shall be June 30, 2001; however, the Outside Date shall be moved to an earlier
date in the event any statute enacted hereafter attempts to repeal that date.
Such earlier date shall be 10 days before the effective date of the statute
seeking to repeal such date.
ARTICLE 5: REVIEW OF TITLE
5.1 Title Report. Promptly after execution of this Agreement, State and/or
Transferor shall order from Title Company a preliminary report on the Property
(the "Preliminary Report") and copies of all documents relating to title
exceptions referred to in the Preliminary Report. After receiving the
Preliminary Report and documents, State shall have 30 days within which to
notify Scotia in writing of any reasonable objection State may have to any of
the "Non-Monetary Exceptions" (as defined below) reported in the Preliminary
Report, together with an explanation for its objection to any Non-Monetary
Exception. State's failure to object, with an explanation, where required, to
any exception within said 30 days shall be deemed State's approval thereof.
5.2 Monetary Exceptions. State's title to the Designated Lands shall be
delivered free of monetary exceptions, except the lien of the Deed of Trust, if
applicable. Scotia shall be required to remove all other monetary exceptions
prior to the Outside Date or, at Scotia's election, they may be paid at the
Closing out of Scotia's proceeds.
5.3 Non-Monetary Exceptions. If, before the deadline established pursuant
to Section 5.1 above, State reasonably objects, with an explanation, to any
exceptions that are not monetary exceptions ("Non-Monetary Exceptions"), then
Scotia shall have until 10 days prior to the Outside Date (the "Elimination
Deadline") within which to attempt to eliminate such disapproved Non-Monetary
Exceptions. At any time on or prior to the Elimination Deadline, Scotia may
notify State that Scotia is unable or unwilling to remove any disapproved
Non-Monetary Exception, and
unless State delivers notice to Scotia waiving its disapproval within 5 days
following Scotia's notice, then (a) this Agreement and the Escrow shall
automatically terminate, (b) all funds and documents delivered by either party
to the Escrow shall be returned to the party having delivered the same, (c) all
escrow cancellation charges shall be paid 50% by State and 50% by Scotia, and
(d) neither party shall have any further liability hereunder.
5.4 Permitted Exceptions. Any exceptions not timely and properly objected
to by State pursuant to this Article 5, and any exceptions as to which State has
waived its objection pursuant to Section 5.3 above, shall be referred to herein
as "Permitted Exceptions". It is agreed that those title items which are
substantially the same as the United States has accepted title to with regard to
its acquisition of the Headwaters Forest shall be deemed Permitted Exceptions.
ARTICLE 6: DELIVERIES INTO ESCROW
6.1 Documents to be Delivered by Scotia. No later than one (1) business day
before the Outside Date, Scotia shall deliver or cause to be delivered to Title
Company:
(a) A recordable grant deed (the "Grant Deed"), duly executed and
acknowledged by Transferor, conveying the Property any designee of the State
capable of holding title to the Property (the "Designee").
(b) An Affidavit executed by each Transferor entity stating that such
entity is not a "foreign person" under Section 1445(b) of the Internal Revenue
Code; and a FTB Form 590 executed by each such entity (collectively, the
"Affidavits").
(c) Natural Hazard Disclosure Statements executed by each Transferor,
in the form of Exhibit B hereto (collectively, the "Disclosures").
(d) A recordable right of entry or easement agreement among State,
Scotia and such affiliates of Scotia as Scotia may designate prior to the
Closing, providing roadway access to Scotia and such affiliates across the
Property, in form reasonably acceptable to the parties hereto (the "Palco Right
of Entry"), executed and acknowledged by Scotia and each such affiliate and a
recordable right of entry or easement agreement among State, Scotia, such
affiliates of Scotia or unaffiliated third parties as Scotia may designate prior
to the Closing providing roadway access to the Designated Lands in favor of the
State or the Designee, in form reasonably acceptable to the parties hereto (the
"State Right of Entry"). In the case
of the Scotia Right of Entry, it shall be over portions of the Property
reasonably acceptable to the parties, or, in the case of the State Right of
Entry, it shall be over portions of other real property owned by Scotia or its
affiliates, or unaffiliated third parties reasonably acceptable to Scotia. Such
respective rights of entry or easements shall be reasonably sufficient to
provide access to (i) the Property, in the case of the State Right of Entry, or
(ii) other real property owned by Scotia or its affiliates, in the case of the
Scotia Right of Entry.
6.2 Funds and Documents to be Delivered by State. Not later than one (1)
business day before the Outside Date, State shall deliver or cause to be
delivered to Title Company:
(a) Immediately available funds, in an amount (i) equal to the
Consideration Amount, (ii) or equal to one quarter of the total Consideration
Amount, in which event the State shall also deliver the Debt Instruments. All
funds received in the Escrow may be deposited with other escrow funds in a
general escrow account of Title Company and may be transferred to any other
general escrow account or accounts.
(b) A certificate of acceptance of the Grant Deed, executed by State
(the "Acceptance").
(c) A copy of each Disclosure, originally executed by State as the
"Transferee" thereunder.
(d) The Scotia Right of Entry and State Right of Entry, each duly
executed and acknowledged by State.
ARTICLE 7: CONDITIONS PRECEDENT TO CLOSING
Each party's obligation to perform under this Agreement and the Closing
shall be conditioned upon satisfaction of each of the conditions precedent which
are listed below for the benefit of such party. No waiver of a condition
precedent by any party shall be effective or enforceable unless in writing
signed by the party(ies) for whose benefit such condition is included herein.
The following are the conditions:
7.1 Delivery of Documents and Funds. For the benefit of State on the one
hand and Scotia on the other hand, the timely delivery to Title Company of all
documents and funds which this Agreement requires the other party to deliver or
cause to be delivered to Title Company.
7.2 Title. For the benefit of State, Title Company shall be irrevocably
committed to issue, upon the Closing, a CLTA extended form of
title insurance policy in the amount determined by State as appropriate, but not
greater than the Consideration Amount, covering the Property and showing State
as the owner, subject only to the Permitted Exceptions (the "Title Policy") and
a mortgagee's title policy in the amount of the Note, as may be requested by
Scotia, in connection with recordation of the Deed of Trust if so elected by
Scotia.
7.3 WCB Approvals. For the benefit of State, notwithstanding the approval
of the State of California Wildlife Conservation Board ("WCB") authorizing
execution of this Agreement, the WCB shall have taken the following actions,
which actions the State hereby acknowledged were taken on February 25, 1999:
(a) On or before March 1, 1999, it shall have approved and authorized
the acquisition of the Property; and
(b) On or before March 1, 1999, it shall have allocated such funds as
are necessary to carry out said acquisition.
7.4 DGS Approval. For the benefit of State on the one hand and Scotia on
the other hand, the DGS Approval shall have been received, and all appraisal and
transaction documents shall have been approved by the DGS. State shall promptly
submit all appraisal and transaction documents to DGS for its review and
approval as they become available. The DGS shall not unreasonably withhold or
delay its approval of any documents submitted pursuant to this Section 7.4.
ARTICLE 8: CERTAIN COMMITMENTS BY SCOTIA
Scotia shall not take (and shall ensure that any other Transferor(s) shall
not take) any of the following actions prior to the Closing without the prior
written consent of State, which consent shall not be unreasonably withheld,
conditioned or delayed:
8.1 Agreements. Make or allow to be made, extend or allow to be extended
any leases, contracts, options or agreements whatsoever affecting the Property,
except those which can be terminated on 30 days' or less notice, and except
those not prohibited by AB 1986; and
8.2 Encumbrances. Cause or permit any lien, encumbrance, mortgage, deed of
trust, restriction, or easement to be placed upon the Property after the date of
this Agreement; provided, however, that any such action shall be permitted if
not prohibited by AB 1986 and if Scotia causes such lien or encumbrance to be
removed on or prior to the Closing.
ARTICLE 9: HAZARDOUS MATERIALS
9.1 Definitions. As used in this Article 9, the following terms shall have
the following meanings:
(a) "Hazardous Material" means any substance or waste containing
hazardous substances, pollutants or contaminants as those terms are defined,
designated, classified or listed in the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. as amended
("CERCLA") and the regulations promulgated thereunder, and any other substance
or waste similarly defined, designated, classified, listed or identified in any
other "Environmental Laws," as defined below. This definition specifically
includes asbestos-containing material, petroleum, and any fraction thereof,
petroleum-based products and polychlorinated biphenyls ("PCBs").
(b) "Environmental Laws" means all applicable federal, state, and
local laws, regulations and ordinances or binding determinations of any
governmental authority governing the manufacture, import, use, handling,
storage, transport, processing, release or disposal of substances or wastes
deemed hazardous, toxic, dangerous or injurious to public health or to the
environment or relative to air quality, water quality, solid waste management,
hazardous waste management, hazardous or toxic substances or protection of human
health or the environment, including, but not limited to, CERCLA, the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.) ("RCRA"),
the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), and the Federal Insecticide, Fungicide,
Rodenticide Act (7 U.S.C. Section 136 et seq.), as each of these laws have been
amended through the date of this Agreement, and any analogous state or local
statutes and regulations promulgated pursuant thereto, as the same have been
amended through the date of this Agreement.
9.2 Representation and Warranty. Scotia represents and warrants to State as
of the date of this Agreement and as of the Closing Date, there are no facts
indicating the presence of any Hazardous Materials on, in or under the Property.
Scotia hereby agrees to indemnify and hold the State harmless with regard to the
breach of this Section 9.2 except with respect to Hazardous Materials deposited
by or through the State. This Section 9.2 shall survive the Closing.
ARTICLE 10: CLOSING THE ESCROW
10.1 The Closing. When all of the conditions precedent to the Closing set
forth in Article 7 hereof have been satisfied, then Title Company shall date all
undated documents as of the Closing Date, attach the Acceptance to the Grant
Deed, to the extent counterparts of documents have been provided, detach and
re-attach signature pages so that there are fully executed sets of the
documents, prorate items (if any) set forth in Article 11, pay all fees and
expenses incident to the Escrow as set forth in Article 12 and, in the following
order:
(a) Record the Grant Deed and the Acceptance in the Official
Records of Humboldt County.
(b) Record the Deed of Trust (if applicable) in the Official Records
of Humboldt County.
(c) Record the Scotia Right of Entry and the State Right of Entry in
the Official Records of Humboldt County.
(d) Deliver to Scotia the Note (if applicable), and one fully executed
set of Disclosures.
(e) Deliver to State the Affidavits and one fully executed set of
Disclosures.
(f) Deliver to Scotia (or as otherwise directed by Scotia) by wire
transfer in accordance with wiring instructions to be provided by Scotia or such
other recipient, an amount equal to the Consideration Amount, or one quarter the
Consideration Amount, as applicable, adjusted by deducting Scotia's share of
closing costs, if any, and deducting any net debit or crediting any net credit
to Scotia's account by reason of prorations.
(g) Deliver to State the Title Company's check for any excess funds
deposited into the Escrow after payment of all closing costs.
(h) Deliver to State the Title Policy in triplicate as soon as
possible after the Closing.
(i) Deliver to Scotia its mortgagee's title policy, if applicable, in
triplicate as soon as possible after the Closing.
(j) Deliver conformed copies of all the recorded documents to State
and Scotia at the addresses set forth in Section 13.6 hereof.
10.2 Escrow Termination. If for any reason the Escrow has not closed
by 11:59 p.m. on the Outside Date, then (a) the Escrow shall be deemed
terminated automatically without further action by either party, (b) any
documents and/or funds deposited with Title Company shall be returned to the
party depositing the same (less escrow cancellation charges chargeable to such
party from any such funds), without any further consent from any other party to
the Escrow, and (c) all escrow cancellation charges shall be paid 50% by State
and 50% by Scotia. The termination of the Escrow as provided herein shall be
without prejudice to the legal and equitable rights a party has against the
other party under this Agreement for breach.
ARTICLE 11: PRORATIONS
11.1 Real Property Taxes Affecting the Property. Scotia shall cause all
property taxes, assessments, penalties and interest, if any, for all periods
prior to the Closing to be paid prior to the Closing. Scotia shall be solely
responsible for obtaining any refund from the County of Humboldt of real
property taxes caused to be paid by Scotia or a Transferor and affecting the
Property for the period after the Closing. The State shall, upon demand,
promptly execute and deliver any documents or instruments reasonably requested
by Scotia in order to facilitate obtaining such refund.
11.2 Timber Yield Taxes. Scotia or the Transferor(s) shall be responsible
for paying any timber yield taxes with respect to the Property attributable to
the period prior to the Closing relating to the Property.
11.3 Proration Date. All prorations shall be as of the Closing, it being
specifically understood that State will not be responsible for payment of any
taxes.
ARTICLE 12: CLOSING COSTS
12.1 State's Responsibility. State shall be responsible for payment of any
costs of recording any conveyancing documents, any documentary transfer taxes,
the title insurance premiums for the Title Policy and all endorsements thereto,
and Title Company's escrow fees.
12.2 Legal Fees. Each party shall bear its respective legal fees and
expenses incurred in negotiating, documenting and closing this transaction.
ARTICLE 13: MISCELLANEOUS PROVISIONS
13.1 Waiver; Remedies; Modification. No delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder, nor shall any single or partial
exercise of any right, power or privilege hereunder, preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder. A modification of any provision herein contained, or any other
amendment to this Agreement, shall be effective only if the modification is in
writing and signed by all the parties hereto.
13.2 Applicable Law. This Agreement shall in all respects be governed by
the laws of State of California applicable to agreements executed and to be
wholly performed within this State without regard to principles of conflict of
law.
13.3 Attorneys' Fees. Should any party hereto commence any action or
proceeding to enforce any provision of this Agreement or for damages by reason
of an alleged breach of any provision of this Agreement or for declaratory
relief, the prevailing party shall be entitled to recover from the losing party
or parties such amount as the court may adjudge to be reasonable attorneys' fees
for services rendered to the prevailing party in such action or proceeding.
13.4 Separate Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall, together, constitute and be one and the same
instrument.
13.5 Notices. Any notice or demand required herein shall be given
personally, by certified or registered mail, postage prepaid, return receipt
requested, by confirmed fax, or by reliable overnight courier to the address of
the respective parties set forth below. Any notice served personally shall be
deemed delivered upon receipt, served by facsimile transmission shall be deemed
delivered on the date of receipt as shown on the received facsimile, and served
by certified or registered mail or by reliable overnight courier shall be deemed
delivered on the date of receipt as shown on the addressee's registry or
certification of receipt or on the date receipt is refused as shown on the
records or manifest of the U.S. Postal Service of such courier. Each party
hereto, may from time to time designate any other address for this purpose by
written notice to the other parties. Notices shall be given as follows:
If to Scotia or any other Transferor, to:
Scotia Pacific Company LLC
000 Xxxx Xxxxxx, Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn.: President
Facsimile No.: (000) 000-0000
with a copy to:
Scotia Pacific Company LLC
Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn.: Managing Counsel/Real Estate
Facsimile No.: (000) 000-0000
and with a copy to:
Nossaman, Guthner, Xxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to State, to:
The Resources Agency
Department of Fish & Game
Wildlife Conservation Board
000 X Xxxxxx, Xxxxx 000
Xxxx.: W. Xxxx Xxxxxxx, Executive Director
Facsimile No.: (000) 000-0000
13.6 Captions, Number and Gender, Exhibits. The captions appearing at the
commencement of the paragraphs sections and subsections hereof are descriptive
only and for convenience in reference. Any reference to a section herein
includes all subsections thereof. Should there be any conflict between any such
caption and the article, paragraph or subparagraphs at the head of which it
appears, the article, paragraph or subparagraph and not the caption shall
control and govern the construction of this Agreement. In this Agreement, the
masculine, feminine or neuter gender and the singular or plural number shall
each be deemed to include the others whenever the context so requires. All
exhibits attached hereto and referenced in the body of this Agreement are
incorporated herein by such reference.
13.7 Survival. All representations, covenants and agreements made and all
obligations to be performed under the provisions hereof to the extent not
performed at or before the Closing shall survive for a period of one year from
the Closing and shall not be deemed to merge with the grant deed
or upon delivery or acceptance thereof.
13.8 Further Action. Each party hereto shall, on or before the Closing,
duly execute and deliver such papers, documents and instruments and perform all
acts reasonably necessary or proper to carry out and effectuate the terms of
this Agreement.
13.9 Performance. Time is of the essence of this Agreement and of each
provision hereof.
13.10 No Presumption Regarding Drafter. The parties hereto acknowledge and
agree that the terms and provisions of this Agreement have been negotiated and
discussed among the parties, and that this Agreement reflects their mutual
agreement regarding the subject matter of this Agreement. Because of the nature
of such negotiations and discussions, no party shall be deemed to be the drafter
of this Agreement, and therefore no presumption for or against the drafter shall
be applicable in interpreting or enforcing this Agreement.
13.11 Days and Months. Unless otherwise stated, all references to days or
months herein shall be references to calendar days or calendar months.
13.12 Severability. If any provision of this Agreement is found invalid or
unenforceable, such provision shall be enforced to the maximum extent possible
and the other provisions shall remain in full force and effect to the extent
they can be reasonably applied in the absence of such invalid or unenforceable
provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SCOTIA PACIFIC COMPANY, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
President and CEO
STATE OF CALIFORNIA ACTING BY AND
THROUGH THE WILDLIFE CONSERVATION BOARD
By: /s/ W. Xxxx Xxxxxxx
W. Xxxx Xxxxxxx
Executive Director
APPROVED:
DEPARTMENT OF GENERAL
SERVICES OF THE STATE
OF CALIFORNIA
By: [signature illegible]
Director
EXHIBIT B
NATURAL HAZARD DISCLOSURE STATEMENT
The Transferor, The Pacific Lumber Company, discloses the following information
with the knowledge that even though this is not a warranty, prospective buyers
may rely on this information in deciding whether and on what terms to purchase
the subject property.
THE FOLLOWING ARE REPRESENTATIONS MADE BY THE TRANSFEROR AND HIS OR HER AGENT(S)
BASED ON THEIR KNOWLEDGE AND MAPS DRAWN BY THE STATE. THIS INFORMATION IS A
DISCLOSURE AND IS NOT INTENDED TO BE PART OF ANY CONTRACT BETWEEN THE TRANSFEREE
AND THE TRANSFEROR.
THIS REAL PROPERTY LIES WITHIN THE FOLLOWING HAZARDOUS AREA(S):
A SPECIAL FLOOD HAZARD AREA (Zone "A") designated by the Federal Emergency
Management Agency.
Yes _______ No _______ Do not know/information not available from
local jurisdiction _____X______
AN AREA OF POTENTIAL FLOODING shown on an inundation map pursuant to Section
8589.5 of the Government Code.
Yes _______ No _______ Do not know/information not available from
local jurisdiction _____X______
A VERY HIGH FIRE HAZARD SEVERITY ZONE pursuant to Section 51179 of the
Government Code. The owner of this property is subject to the maintenance
requirements of Section 51182 of the Government Code.
Yes _______ No _______
A WILDLAND AREA THAT MAY CONTAIN SUBSTANTIAL FOREST FIRE RISKS AND HAZARDS
pursuant to Section 4125 of the Public Resources Code. The owner of this
property is subject to the maintenance requirements of Section 4291 of the
Public Resources Code. Additionally, it is not the state's responsibility to
provide fire protection services to any building or structure located within the
wildlands unless the Department of Forestry and Fire Protection has entered into
a cooperative agreement with a local agency for those purposes pursuant to
Section 4142 of the Public Resources Code.
Yes _______ No _______
AN EARTHQUAKE FAULT ZONE pursuant to Section 2622 of the Public Resources Code.
Yes _______ No _______
A SEISMIC HAZARD ZONE pursuant to Section 2696 of the Public Resources Code.
Yes _______ No _______
THESE HAZARDS MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL PROPERTY, TO OBTAIN
INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER.
Transferor, The Pacific Lumber Company, certifies that the information herein is
true and correct to the best of the Transferor's knowledge as of the date signed
by the Transferor.
The Pacific Lumber Company
By:__________________________ Date_______________________________
Name:________________________
Title:_______________________
Transferee, the United States of America, certifies that he or she has read and
understands this document.
The United States of America
By:__________________________ Date_______________________________
Name:________________________
Title:_______________________
