91-0306_KINOSHITA PROPERTIES_Right of First RefusalRECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
PAUL, HASTINGS, JANOFSKY & WALKER
695 Town Center Drive, 17th Floor
Costa Mesa, California 92626
Attn: Gerald E. Wilson, Esq.
. -a /SG
91=100336
Recorded at the request of
FIRST AMER. TITLE INS. CO.
8:00 MAR 61991
j_SP000 A.M. Official Records
C r Orange County, California
Recorder
(space Above for Recorder's Use
RIGHT OF FIRST REFUSAL
THIS RIGHT OF FIRST REFUSAL ("Agreement") is granted
this 6th day of March, 1991, by the SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and
politic created and existing under the laws of the State of
California ("Grantor"), to KINOSHITA PROPERTIES, a California
limited partnership ("Grantee"), upon the following terms and
conditions:
R E C I T A L S:
A. Concurrent herewith, Grantor is purchasing from
Grantee that certain real property located in the City of
San Juan Capistrano, County of Orange, State of California
described on Exhibit "A" attached hereto and by this reference
made a part hereof, together with the improvements thereon and
all easements, rights-of-way, water rights, if any, and other
rights appurtenant thereto (collectively the "Property").
Grantor is purchasing the Property by delivering to Grantee the
San Juan Capistrano Community Redevelopment Agency
Non -Negotiable Note for Nine Million Five Hundred Thousand
Dollars ($9,500,000.00) dated March 6, 1991 (the "Note"), which
may be exchanged by Grantee for replacement notes ("Notes")
which will be payable to persons designated by Grantee ("Note
Holders"). The Property is being purchased by Grantor pursuant
to that certain Purchase and Sale Agreement/Joint Escrow
Instructions dated March 5, 1991 between Grantor, as Buyer, and
Grantee, as Seller (the "Purchase Agreement").
B. It is understood by Grantor and Grantee that the
purchase price for the Property (as set forth in the Purchase
Agreement) was established, in part, based upon the Agency's
intent to retain the Property for park uses, open space uses,
agricultural uses, and other public and quasi -public uses.
Accordingly, and as a material consideration inducing Grantee
to sell the Property to Grantor, Grantor has agreed to grant to
Grantee a right of first refusal (the "Right of First Refusal")
to acquire the Property as set forth herein.
KI T N E S S E T H:
NOW, THEREFORE, in consideration of the foregoing and
other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Grantor hereby grants to Grantee
the Right of First Refusal with respect to the Property as
follows:
Section 1. Grant of Right to Grantee.
(a) This Agreement shall be applicable to any
transfer of the Property, or any portion thereof, for private
development uses, private commercial uses, or for-profit uses
(collectively "Prohibited Uses"); provided that leases of all
or any portion of the Property for five (5) years or less, and
transfers in connection with uses that are consistent with the
zoning at the date hereof for that portion of the Property so
transferred, shall be permitted (collectively "Permitted
Uses"). In the event Grantor elects to transfer the Property
or any portion thereof for a Prohibited Use (other than a
Permitted Use), and the transferee (the "Transferee") is not
related or affiliated in any way with Grantor or the City of
San Juan Capistrano, Grantor shall first give to Grantee
written notice of such election together with a full copy of
any written offer received by Grantor from the Transferee and a
statement that the Transferee has made a bona fide offer and is
an unrelated and unaffiliated third person. Grantee shall have
ten (10) business days from the effective date of the notice to
elect to purchase the portion of the Property proposed to be
transferred, or the interest proposed to be transferred, on the
terms and conditions set forth in such notice and offer;
provided, that Grantee or its successors or assigns shall be
permitted to use part or all of the Note or the Notes as
payment for the exercise of Grantee's right to purchase the
Property, using the principal balance of the Note or the Notes,
and any accrued but unpaid interest thereon, as the equivalent
of cash for that purpose. Should Grantee so elect, it shall
give Grantor written notice thereof within said 10 days and
shall complete the purchase of the portion of the Property, or
the interest proposed to be transferred, pursuant to the terms
of the notice and offer (with the same right to substitute part
or all of the Note or the Notes as provided in the preceding
sentence); provided, that the purchase by Grantee or its
successors or assigns shall be completed within 30 business
days after Grantor receives notice of Grantee's election.
Should Grantee make such election and thereafter default in
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performing its obligations to purchase the portion of the
Property, or the interest proposed to be transferred, or should
Grantee fail to timely exercise the Right of First Refusal
granted hereby, it shall be conclusively presumed that Grantee
has elected not to exercise the Right of First Refusal
hereunder and Grantor shall be entitled to transfer the portion
of the Property, or the interest proposed to be transferred, to
the Transferee pursuant to the terms of the notice and offer;
provided, however, that the time for the closing of such
transfer may be changed by agreement of Grantor and the
Transferee subsequent to the giving of notice to Grantee;
provided, that Grantor shall not be permitted to transfer any
portion of the Property, or any interest therein, on terms or
conditions that are materially more favorable than those
previously disclosed to Grantee at the time Grantor provided
its original notice regarding the proposed transfer of any
portion of the Property, or any interest therein. Should
Grantor fail to complete said transfer to the Transferee, then
the Right of First Refusal shall reapply to any other proposed
transfer.
(b) In the event that Grantee exchanges the Note for
replacement Notes payable to more than one (1) person pursuant
to the Purchase Agreement or the Note, this Agreement will run
in favor of all of the Note Holders; provided, however, that
Shigeru Kinoshita and/or Yasuo Kinoshita (the "General
Partners") shall act on behalf of all of the Note Holders in
exercising the Right of First Refusal. The General Partners
shall hold the Right of First Refusal collectively and shall be
solely responsible, as between Grantor and the General
Partners, for properly exercising the Right of First Refusal
and completing the purchase pursuant to such right. The
General Partners shall have the right to have the purchase of
any portion of the Property, or any interest therein, be made
by one or more nominees of the General Partners and in such
proportions or percentages as the General Partners in their
sole discretion shall determine. In the event that, as
provided in this Section 1(b), the General Partners will be
acting on behalf of Kiyoko Kinoshita or the Tadaichi Kinoshita
Children's Trust (collectively, "Mrs. Kinoshita"), Grantor
agrees to notify Mrs. Kinoshita as if she were one of the
General Partners. Notices shall be sent to Mrs. Kinoshita at
26612 Calle Lago, Capistrano Beach, California 92624, or at
such other address as determined using the procedures for
notices set forth in Section 2(a) hereof.
(c) If the transfer is to be made in exchange for
property of the Transferee, the dollar value for which Grantee
may purchase the Property shall be the fair market value of
such exchange property as established by an appraisal conducted
by an appraiser appointed by Grantee and reasonably acceptable
to Grantor, who shall be a member of the American Institute of
Real Estate Appraisers. The ten (10) day period provided in
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Section 1(a) above for Grantee to deliver notice of exercise of
the Right of First Refusal shall be extended for so long as it
takes to complete such appraisal.
(d) The Right of First Refusal shall terminate as to
the Property and each portion thereof upon the earlier to occur
of (i) transfer of the Property, or each portion thereof,
respectively, in conformance with this Agreement or (ii) upon
payment in full of the Note or all of the Notes; provided, that
the Right of First Refusal shall continue following any
transfer for Permitted Uses or as to any transfer to a person
or entity that is related or affiliated with Grantor or the
City of San Juan Capistrano (pursuant to a permitted assignment
of this Agreement), and in either of such cases this Agreement
and the Right of First Refusal shall continue with respect to
the successor transferee of the Property. Upon termination of
this Agreement, Grantee and all Partners shall execute,
acknowledge and deliver such documents as may be required by
Grantor or any title company to remove the cloud of this
Agreement from the title to the Property, including without
limitation, any necessary quit claim deeds.
Section 2. Miscellaneous.
(a) Notices. Any notice to be given or
document to be delivered by any party to the other
may be delivered in person or may be deposited in
States mail, duly certified or registered, postage
return receipt requested, as follows:
To Grantor at:
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: Stephen B. Julian,
Executive Director
With a copy to:
Thomas P. Clark, Esq.
Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
To Grantee at:
Kinoshita Properties
P. O. Box 201
San Juan Capistrano, CA 92693
Attention: Shigeru Kinoshita
Yasuo Kinoshita
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9388r/2299/37 -4-
other
hereunder,
the United
prepaid and
With a copy to:
Gerald E. Wilson, Esq.
Paul, Hastings, Janofsky & Walker
695 Town Center Drive, 17th Floor
Costa Mesa, CA 92626
Any party may from time to time, by written notice to the
other, designate a different address which shall be substituted
for the one above specified. If any notice is personally
delivered, it shall be deemed delivered on the day of delivery
if delivered before 5:30 p.m.; otherwise it shall be deemed
delivered on the day following personal delivery. If any
notice or other document is sent by mail as aforesaid, the same
shall be deemed served or delivered forty-eight (48) hours
after the mailing thereof as above provided.
(b) Time of Essence. Time is of the essence of this
Agreement and each and every term and provision hereof.
(c) Interpretation; Governing Law. This Agreement
shall be construed, interpreted and governed by the laws of the
State of California.
(d) Severability. If any term, provision, condition
or covenant contained herein, or the application thereof to any
party or circumstance, shall, to any extent, be held invalid or
unenforceable, the remainder hereof and the application of such
term, provision, condition or covenant to persons or
circumstances other than those as to whom to which it is held
invalid or unenforceable, shall not be affected thereby, and
each term, provision, covenant and condition hereof shall
otherwise be valid and enforceable to the fullest extent
permitted by law. I
(e) Headings. The headings and captions used in this
Agreement are for convenience and ease of reference only and
shall not be used to construe, interpret, expand or limit the
terms of this Agreement.
(f) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and
the same instrument.
(g) Effect of Waiver. The waiver by Grantee of any
breach or breaches by Grantor contained herein shall not be
deemed, nor shall the same constitute, a waiver of any
subsequent breach or breaches.
(h) Successors and Assigns. This Agreement is made
for the sole benefit and protection of Grantee, and Grantee's
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successors and assigns, and no other person shall have any
right of action or right to rely thereon. This Agreement shall
bind subsequent transferees of all or any portion of the
Property except to the extent otherwise provided herein. This
Agreement may not be assigned by Grantor without the prior
written consent of Grantee, which Grantee in its sole
discretion may deny or approve.
(i) Number; Gender. Wherever the context of this
Agreement requires, the singular shall include the plural and
masculine gender shall include the feminine and/or neuter.
(j) Attorneys' Fees. In the event that any legal
proceedings shall be instituted in connection herewith or
arising out of the construction hereof, the losing party shall
pay to the prevailing party all sums paid and/or incurred by it
as costs and expenses in such proceedings, together with
reasonable attorneys' fees.
(k) Profit Sharing. The parties hereto acknowledge
that Section 14 of the Purchase Agreement, which provides in
certain circumstances for a division of "net profit" derived
from the transfer of the Property, shall continue to apply to
any transferee of any portion of the Property, or any interest
therein, to which this Agreement provides that the Right of
First Refusal continues.
IN WITNESS WHEREOF, the undersigned have executed this
instrument as of the year and date first above written.
Grantor: SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPM AGENCY
By: _ By:
Executive D'rector airman, Boa d f Directors
ATTEST:
O,A t9 /
Ci - y Cf-e-rYJ 61
/ g y ecretary
(signatures continued)
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Grantee: KINOSHITA PROPERTIES, a California
limited partnership
r
i
Shigep6 Kinos ita,
Gene al Partner
asuo Kinoshita,
General Partner
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9388r/2299/37 -7-
STATE OF CALIFORNIA )
ss.
COUNTY OF
On this `_. )� 11 day of n)1 ,,. (, `_) ,
in the year ,i' before me, the undersigned, a Notary Public
in and for said State, personally appeared " ; j� 11 (� . i �1,( t_,'� n
,�_�1'. 'i t 11 �-�1•�l', 1�� ,
personally known to me (or
proved to me on the basis of satisfactory evidence) to be the
person who executed this instrument as the % \r: ,1 f ; , -' (�; : r r-/ rn,
r' I' � i 1 1 , 1, % ) 1" ' .lam 1 .' i . +
of the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY and
acknowledged to me that the SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY executed it.
RCOMMOFFICIAL SEAL
MYIM
ICTORIA G. MITCHELL
OTANY PUSLIC.CALIFOAM
ORANGE COUNTY
j.EXP. JAN. 1 9
STATE OF CALIFORNIA
�T.
COUNTY OF I\ A S!'
•.)
Signature of Notary Public
Name typed or printed `
ss.
On 0 t;'I i:- i ; 1' I I before me, the
undersigned, a Notary Public in and for said State, personally
appeared SHIGERU KINOSHITA and YASUO KINOSHITA, personally
known to me or proved to me on the basis of satisfactory
evidence to be the persons who executed the within instrument
as both of the partners of the partnership that executed the
within instrument, and acknowledged to me that such partnership
executed the same.
WITNESS my hand and official seal.
SEALOFFICIAL SEAL
(SEAL)RIICTORIA G. MITCHELL
NOTARY PUBLICiCALIFORMIoRAa4 COUNTY. EXP, JAN. 1
02/28/91
9388r/2299/37
EXHIBIT "A"
DESCRIPTION OF PROPERTY
The East 60 acres of all that portion of the
hereinafter described land lying Easterly of the
center line of McKinley Avenue, as described in the
Deed recorded February 17th, 1897 in Book 29, Page 389
of Deeds.
Beginning at a stake at the Southeast corner of the
Northeast quarter of Section 11, Township 8 South,
Range 8 West, San Bernardino Base and Meridian; thence
North 69 1/2 deg. West 37.52 chains to a fence corner;
thence South 20 1/2 deg. West 35.26 chains; thence
East 38.97 chains to a pipe; thence South 9 links to a
pipe in the center of the West end of a lane; thence
East 1/2 deg. South 28.53 chains to a stake in the
center of said lane; thence North 20.82 chains; thence
West 20 chains to the point of beginning.
Excepting therefrom that portion included within the
land described in the Deed to the City of San Juan
Capistrano recorded February 17, 1976 in Book 11648,
Page 1825 of Official Records.
And excepting therefrom any crops growing on the land
at the date of recordation of the Deed of the San Juan
Capistrano Community Redevelopment Agency.
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