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Resolution No. 2015-057 (3)RESOLUTION NO. 2015-57 REGARDING ASSIGNMENT & ASSUMPTION OF PURCHASE & SALE AGREEMENT - FRUITLAND OWNER, LLC - 3200 FRUITLAND AVENUE CONFIDENTIALITY AND NON- DISCLOSURE OF PROPRIETARY INFORMATION September 6, 2015 Re; Confidentiality and Non -Disclosure of Proprietary Information This letter agreement (this "Agreement") effective September 6, 2015 ('Effective Date") will confirm the understanding between Fruitland Owner, LLC a Delaware limited liability company ("COX") and the City of Vernon, a California charter City and California Municipal Corporation (the "City'), with respect to the confidentiality and non - appropriation of certain confidential proprietary information of COX (the "Confidential Information"). The City and COX may each be referred to herein as a "party" or collectively, as "parties". 1. The City acknowledges and agrees that it will utilize Confidential Information provided by COX for the sole purpose of evaluating the business arrangement between the parties, and shall make no other use of such Confidential Information without the prior written consent of the Disclosing Party. For purposes of this Agreement, the "Receiving Party" shall mean the City, and the "Disclosing Party' shall mean COX. Confidential Information for the purposes of this Agreement shall include without limitation, that certain lease dated August 24, 2015 between Fruitland Owner LLC, a Delaware limited liability company and rPlanet Earth Los Angeles LLC, a Delaware limited liability company (the "Lease"). Confidential Information for purposes of this Agreement not include any information which (i) was in the public domain prior to disclosure, or thereafter comes into the public domain without breach of any confidentiality obligation; " (ii) was known by the Receiving Party prior to disclosure, provided that such information is not ]mown by the Receiving Party to be subject to another confidentiality agreement or other obligation of secrecy to the Disclosing Party or another party; (iii) was disclosed to the Receiving Party by a third party not in violation of any confidentiality obligation owed to the Disclosing Party; or (iv) was disclosed or contained within a public record, the disclosure of which is required pursuant to the California Public Records Act (Cal. Gov't Code §6250 etseq.). Notwithstanding anything to the contrary in this Agreement, the foregoing sentence shall not be deemed to apply to Confidential Information submitted to the City by COX arising from or related to the Lease, the Conditional Use Permit Application or any other regulatory approvals sought or granted. 2. For purposes of this Agreement, Confidential Information shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged. 3. The City acknowledges and agrees: (i) that it will maintain and preserve the confidentiality of any Confidential Information of the Disclosing Party, including, without limitation, taldng such steps to preserve the confidentiality of the Confidential hiformation as it takes to preserve the confidentiality of its own confidential information; (ii) that it will disclose such Confidential Information to its own employees on a "need -to - know" basis only, and only to such employees who are bound by the same duties of protection, confidence and non -disclosure with respect to the Confidential Information as the Receiving Party is pursuant to the terms of this Agreement; (iii) that it will disclose such Confidential Information to third party subcontractors and consultants on a "need -to - know" basis only, and only to such third parties who are bound by the same duties of protection, confidence and non -disclosure with respect to the Confidential Information as the Receiving Party is pursuant to the terms of this Agreement; and (iv) that it will use such Confidential Information solely in its consideration of the business arrangement with the Disclosing Party, and that it will not otherwise use for its benefit or the benefit of any third party any such Confidential Information. The City acknowledges and agrees that it will be responsible and liable for any and all breaches of this Agreement by its respective employees or agents whatever the reason or circumstances. 4. If the Receiving Party or any of its employees or agents becomes legally compelled to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice of such requirement to the extent it is legally permitted so that the Disclosing Party may seek a protective order or other appropriate remedy. In the event such order or other remedy is not obtained, the Receiving Party agrees to disclose only that portion of the Confidential Information which, in the opinion of its counsel, it is legally required to disclose pursuant to such requirement. 5. The City acknowledges and agrees that the Confidential Information is and shall remain the property of the Disclosing Party and that upon the request of the Disclosing Party, the Receiving Party shall promptly delete or destroy all tangible expressions of the Confidential Information and will not retain any copies, extracts or other reproductions in whole or in part of such Confidential Information. 6. The City acknowledges and agrees that nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, to any Confidential Information except as expressly set forth herein. 7. The substantive laws of the State of California will govern this Agreement without regard to its principles of conflict of laws. Except for that certain Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated August 4, 2015 which shall govern the business arrangement between the parties hereto, this Agreement sets forth the entire agreement of the parties concerning the subject matter hereof and supersedes all prior agreements, understandings and negotiations between the parties concerning the confidentiality of the Lease. All amendments or exceptions to this Agreement must be in writing signed by both parties. This Agreement may be executed in counterparts. The obligations of each party under this Agreement shall survive termination of the parties' discussions and extend for the term of this Agreement, which shall be defined as a period of five (5) years following the Effective Date ("'Perm"). Within ten (10) days after the expiration or termination of this Agreement, the Receiving Party is to return all copies of the Disclosing Party's Confidential Information to the Disclosing Party or to certify to the Disclosing Party that all Confidential Information has been destroyed. Any failure on the part of a party to insist upon the performance of this Agreement or any part thereof shall not constitute a waiver of any rights hereunder. If in any judicial proceeding a court shall refuse to enforce any of the separate covenants included in this Agreement, then such unenforceable covenant shall be deemed modified so Page 2 of 4 as to be enforceable (or if not subject to modification, then eliminated therefrom) for purposes of such proceeding. Nothing contained in this Agreement shall be deemed to constitute either party a partner', joint venture, employee, or other such arrangement of the other party for any purpose; rather, the Parties hereto expressly agree that this Agreement is for the purpose of protecting Confidential Information only. 8. Each party agrees and acknowledges that the restrictions contained in this Agreement are reasonable in scope and duration, and are necessary to protect the Disclosing Party. Each party acknowledges and agrees that money damages would be inadequate compensation for breach of this Agreement and will cause irreparable injury to the non -breaching party hereto. Accordingly, each party hereby consents in advance to the entry by a court of competent jurisdiction of equitable relief (including an injunction that enjoins the breaching party from disclosing or using Confidential Information) to enforce the terms hereof. Upon any breach or threatened breach of any provision of this Agreement, the non -breaching party shall be entitled to injunctive relief, specific performance or other equitable relief, provided, however, that this shall in no way limit any other remedies which the non -breaching party may have as a result of such breach, including the right to seek monetary damages. 9. In any action between the parties to interpret, enforce, award, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addiction to damages, injunctive relief, or any other relief to which it might be entitled, to reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. 10. The signatories to this Agreement represent and warrant that they have the authority to execute this Agreement on behalf of the principles they purport to represent. [Signatures Begin on Next Page]. Page 3 of 4 IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative. FRUITLAND OWNER LLC, a Delaware limited liability company By: Fruitland JV LLC, a Delaware limited liability company, its Sole Member By: Fruitland COX Venture LLC, a Delaware limited liability company, its Sole Member By CAM Fruitland Capital LLC, a Delaware limited liability company its Sole Member By: Cohen Holdings 2015 LLC, a Delaware limited liability company its Sole member Name: Bradley S. Cohen Its: President & CEO City of Vernon By: Printed Name: Marls Whitworth Title: City Administrator Date: j�' 'iZ� TEST: Maria E. Ayala, City0erk FlPPROV;D AS TO FORM: s }lema Patel, City Att )iey Page 4 of 4 IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative, FRUITLAND OWNER LLC, a Delaware limited liability company By: Fruitland JV LLC, a Delaware limited liability company, its Sole Member By: Fruitland COX Venture LLC, a Delaware limited liability Company, its Sole Member By: CAM Fruitland Capital LLC, a Delaware limited liability company its Sole Member By: Cohen Holdings 2015 LLC, a Delaware limited liability company its Solelnerib - Name: Bradley S. Cohen Its: President & CEO City of Vernon Printed ame: Mark hitworth Title: .itv Administrator Date: TEST: Maria E. Ayala, City erk ~ APPROV D AS TO PORM: _ A^^h o" Hema Patel, CityAttr ey Page 4 of 4 PRE -NEGOTIATION LETTER AGREEMENT - 3200 FRUITLAND, VERNON,CA i 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 VIA EMAIL June 30, 2015 To: Randy Kendrick, 3200 Fruitland GAP, LLC ("3200"), Xebec ("Xebec"), and rPtanctEarth ("rPE") Re: Pre -Negotiation Letter Agreement: 3200 Fruitland, Vernon, California (the "Property") Dear Randy: As you are aware, the City of Vernon ("City") and Pechiney Cast Plate Inc. ("Seller") are parties to that certain Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 20, 2006 (as amended from time to time, the "PSA") pursuant to which City intends to purchase the Property. Without solicitation by City, you and other representatives from Xebec, 3200 and rPE have contacted the City expressing an interest in Purchasing the Property from City or purchasing City's contractual rights under the PSA to acquire the Property (the "Sale Transaction"). In connection therewith, you presented certain business proposals involving the potential occupancy of the Property by rPE (the "Lease Transaction", together with the Sale Transaction, the "Propose(i Transaction"). City is amendable to discussing with you and other representatives of Xebec, 3200 and WE the Proposed Transaction, subject to and provided in all events that the following agreements and understandings govern all discussions and related matters regarding the Proposed Transaction and the Property. Your execution hereof indicates your agreement to these terms and conditions. We will not commence or continue any further discussions with you, Xebec, 3200 or rPE until You, Xebec, 3200 and WE have countersigned this letter indicating your agreement hereto and delivered the same to City. For so long as our discussions regarding the Proposed Transaction continue, the terms and conditions herein shall apply, until such time as City expressly agrees in writing otherwise. Accordingly, for valuable consideration and intending to be legally bound, each of you, Xebec, 3200 and rPE (each a "Prospective Party") agree as follows: E;Cclusivefy Industrial Negotiations. Any discussions, negotiations, correspondence and other communications relating to the Property or the Proposed Transaction that Prospective Party may have previously had, or in the future may have, with representatives of City (airy and all such previous and future discussions, negotiations, correspondence and other communications being hereinafter referred to as "Communications") are not binding upon City. City is not under any obligation to discuss, continue discussing, pursue or agree to any terms or conditions with Prospective Party. City reserves the right, without further obligation to Prospective Party, to discontinue Communications with Prospective Party at any time for any or no reason, with or without notice. City is under no obligation to negotiate or continue negotiations or other Communications, in good faith or otherwise, with any Prospective Party. 2. Not Admissible. Communications shall not be admissible in any judicial, administrative or other proceeding. 3. No Conflict of ltitcrest No Waivers of Regulatory Authority. In any such Communications, City and its representatives may act in various capacities, including as a potential seller of the Property, as a regulatory and permitting authority, as a provider of essential services to the Property, or in other capacities as a public entity within the State of California. The same representatives of the City who are discussing with the Prospective Party proposed terms of the Proposed Transaction may be involved in various other roles that could affect the Proposed Transaction and/or Property, including in the issuance of (or refusal to issue) permits for, and/or supervision of, proposed or actual undertakings at the Property which are subject to regulatory requirements. Actions of the City in its municipal capacity may be contrary to, and/or in conflict with, Communications regarding the Proposed Transaction. Prospective Party agrees that the same shall not constitute any conflict of interest or basis for any claim against the City. The Communications shall in no way constitute a waiver of any legal requirement under the municipal code, or of any authority of the City in its capacity as regulatory and permitting authority or public entity. City's participation in the Communications shall not prevent City from asserting and/or exercising any legal authority afforded it under applicable law. 4. Adjacent Property. It is the City's understanding that one or more of the Prospective Party's has recently acquired other property ("Other Property") in the vicinity of the Property. ColmmUnlcations with respect to the Property and/or Proposed'rransaction shall have no effect on, or bind or limit in any way the City's authority with respect to, the Other Property. Similarly, the City's actions, discussions, negotiations, correspondence and other communications regarding the Other Property shall have no effect on, or bind or limit in any way the City's authority with respect to the Property or the Proposed Transaction. City's actions or inactions with respect to the Other Property shall in no way constitute a waiver of any authority, or agreement to act or refrain from acting in the same manner, with respect to the Property, and rice versa. 5, No Agreement. No officer, employee, consultant, attorney, or other representative of City is authorized to commit City to any agreement unless the same has been properly approved and authorized by City in accordance with applicable law, as determined by Exclusively Industrial City in its sole and absolute discretion. Prospective Party may not rely on any Communication that may be construed to the contrary. While the City and one or more of the Prospective Parties may reach preliminary, conceptual agreement on one or more preliminary issues that the parties are trying to resolve, the Prospective Parties agree that City shall not be bound by any agreement on individual issues unless and until (a) agreement is reached on all issues; and (b) the parties' agreement on all issues has been reduced to a written agreement, (c) such written agreement has been signed by authorized representatives of both of the parties and delivered to the other party, and (d) such agreement and all related undertakings (including any waiver or modification of local zoning, land use, or other legal requirements) have been approved by the City Council of the City of Vernon (and/or other applicable department or division) as and to the extent the City's legal officers determine in its sole and absolute discretion to be necessary. By executing this letter agreement, the Prospective Parties are precluded from claiming that any agreement, consent, or authorization, implied or otherwise, has been effected with or by City until such time as the foregoing requirements have been satisfied. Prospective Parties acknowledge and agree that this letter agreement, as executed by each Prospective Party, constitutes a binding agreement on such Prospective Party as to the terms and conditions herein. 6. No Reliance. At this time and until an agreement has been effected in accordance with the foregoing requirements as to the Proposed Transaction, the Prospective Parties acknowledge and agree that it would be imprudent and unreasonable to rely upon the expectation of entering into a definitive agreement with City and/or to anticipate or expect City Council's approval of the same. The performance by a Prospective Party prior to the execution of an agreement by City, and City Council's approval of the same (and all related matters), shall not be considered as evidence of intent by either party to be bound in any way to the other party. Neither efforts by a Prospective Party to complete due diligence, negotiate or obtain financing or other capital sources, obtain issuance of requisite regulatory and/or permitting approvals as to any aspect of the Proposed Transaction or with respect to the Property or Other Property, or to prepare a purchase agreement or any other agreement, nor City's participation in, or facilitation of the same, shall be considered or deemed as evidence of intent by either party to be bound in any way to the other. Each Prospective Party agrees that any such undertakings by them are undertaken at their sole risk, cost and expense and potential detriment, without any right to recoup or seek redress with respect to the same. 7. Not Exclusive. City is under no exclusive arrangement with any Prospective Party. Each Prospective Party acknowledges and agrees that City is currently in discussions with numerous parties with respect to the Property. City may continue and/or undertake discussions and/or negotiations, and may in fact enter into an agreement with, any such parties and/or other persons with respect to the Property and/or any transaction relating thereto. City may elect to continue Communications with one or more of the Prospective Parties without the involvement of other Prospective Parties, without liability or obligation to such other Prospective Party who is not involved in such Communications, City may enter into an agreement with one or more Prospective Parties to the detriment of the other Prospective Parties. City may utilize information gathered by it in its communications with one Prospective Party in its Communications with other Exclusive( y industrial Prospective Parties and/or with other persons with whom it is currently engaged or with whom it may in the future engage in discussions, negotiations or other undertakings in relation to the Property or otherwise. 8. Waiver and Release. Each Prospective Party hereby completely, irrevocably and unconditionally releases and forever discharges City and its representatives, from any and all liabilities, claims, causes of action and demands whatsoever, in law or equity, whether such releasing party now has or may hereafter have against City and/or its representatives caused by or arising out of or relating to all or any Communications and/or the Proposed Transaction. Each Prospective Party hereby completely, irrevocably and unconditionally agrees that it shall be estopped from asserting any claim, and it hereby waives any such claim, which is contrary to the terms and conditions of the Prospective Party's agreement herein. City may exercise any and all remedies available at law or equity if a Prospective Party asserts any such claim in violation hereof, including rights to enjoin any such action, and/or to recover damages from the Prospective Party. If a Prospective Party asserts any such claim, and City incurs costs or expenses in relation thereto (including without limitation attorney fees and expenses), Prospective Party shall compensate and reimburse City for the same upon demand. In rurtherance of the intentions set forth herein, each of the Prospective Parties acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." With respect to the matters released hereby, each of the Prospective Parties waives and relinquishes any right or benefit which it has or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or nonstatutory law of any other jurisdiction to the full extent that it may lawfully waive all such rights and benefits. In connection with such waiver and relinquishment, each of the Prospective Parties acknowledges that it is aware that it or its attorneys or accountants may hereafter discover claims or facts in addition to or different from those which it now knows or believes to exist with respect to the matters released hereby, but that it is its intention hereby fully, finally and forever to settle and release the released matters. In furtherance of this intention, the waivers and releases herein given shall be and remain in effect notwithstanding the discovery or existence of any such additional or different claim or fact. 9. Enforceable: Advice from Independent Counsel. Each Prospective Party understands that this is a legally binding agreement by such Prospective Party that affects such Prospective Party's rights. Each Prospective Party signing below represents that such Prospective Party has the legal authority to enter into and bind the Prospective Party, and that this letter agreement is fully enforceable in accordance with its terms. Each Prospective Party has consulted with its own legal counsel with respect to the meaning of this letter agreement, and that it is familiar with and understands the terms and provisions of this letter agreement. E�7,cfusively Industrial 10. Miscellaneous. This letter agreement constitutes the entire agreement between the undersigned Prospective Parties concerning its subject matter and supersedes all prior or contemporaneous representations or agreements not expressed herein. This letter agreement may only be amended by a writing which specifically states that it amends this agreement and is entered into in accordance with the requirements set forth in Section 5. above, Memoranda of meetings, summaries of proposed terms and notes of preliminary understandings shall have no effect whatsoever and shall not be binding on City. If any provision of this agreement is found to be invalid, all other provisions shall remain fully valid and enforceable. Should any provision of this agreement require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same. In executing this agreement, each undersigned party represents that it has the full authority and legal power to do so. If any provision of this agreement is found to be invalid, all other provisions shall remain fully valid and enforceable. This letter agreement may be executed in one or more counterparts or counterpart signature pages attached to one copy of this letter agreement, each of which shall constitute an original and all of which taken together shall constitute one agreement A copy of an executed counterpart of this agreement that is transmitted by facsimile or email in PDF or TIF (or other similar) format shall constitute an original for all purposes. 11. Governing Law, Etc. This agreement and all issues arising hereunder shall be governed by California law, without giving effect to principles of conflict of laws. Each Prospective Party irrevocably waives the right to a jury trial and consents to the jurisdiction and venue of the state and federal courts sitting in the City of Los Angeles, California, and agrees not to object to such jurisdiction or to the laying of venue in such Courts. If you agree to the foregoing, please execute the counterpart signature pages attached hereto and return the same to me. Thank you. City of Vernon Zark. Whitworth City Administrator [Intentional Page Break— Signatures Follow] E)ccfusivefy Industtild Each of the undersigned has executed this letter agreement intending to be hound hereby as of July 1, 2015. Wee Re.aky, Partnum (on bdudf of itself, its direct and indirect partners, shareholders, members and d her beaclimalAntereA holders, and each of their respective affiliates): BY Nallle: Titic 3200 Mtbud GAP, MC (on behalf of itself, its direct and indirect partners, shareholders, members and other beneficial interest holders, and each of their respective affiliates) ------- By: Name: Title, a° Planet Earth (on behalf of itself, its direct and indirect partners, shareholders, niembers and other beneficial interest holders, and each of their respective affiliates) BY:-71Names a`t'r> Title AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT EXECUTION COPY 09.04.15 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 August 4, 2015 (the "Effective Date"), by and between City of Vernon ("City") and Fruitland Owner LLC, a Delaware limited liability company ("COX"). 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 (`Original Agreement"), 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"), as further amended by that certain Second Amendment dated as of April 7, 2015 (the "Second Amendment"), as further amended by that certain Third Amendment dated as of June 11, 2015 (the "Third Amendment"), The Original Agreement as amended by the Addendum, the First Amendment, the Second Amendment and the Third Amendment shall hereinafter be referred to as 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 (together with the Buyer UP Land, (as referenced in Section 4.1 of the Second Amendment) the "Property"), C. Pursuant to the terms and conditions ofthe 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 wider the Purchase Agreement to COX, except as provided in Sections 7 and 8 below. 1;. 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, COX and City hereby agree as follows: I, Assignment. City agrees to assign and transfer to COX all of City's rights, obligations and interest as "Buyer" in, to, under and pursuant to the Purchase Agreement (collectively, the "Contract Rights"), except as provided in Sections 7 and 8 below. 2. Assumption of Obligations. COX 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. S-1 W ES7A2592264 U.1 EXECUTION COPY 08.04.15 3. Purchase Price and Deposit. 3.1 Price. The total purchase price to be paid by COX to City for the assignment of the Contract Rights shall be $22,556,769, paid in immediately available cash pursuant hereto. 3.2 Deposit. Within three (3) days following the Effective Date (i.e., August 7, 2015), COX shall deposit $250,000 (the "Deposit"), and COX 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 COX 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 excluding the Extension Deposit and the DDP Extension Fee). 3.4 Balance of Purchase Price. COX 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 COX 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 COX. 3.6 Extension Deposit. It is acknowledged that because of the duration of the Due Diligence Period and the days that follow before the Closing, the Closing will not occur prior to August 12, 2015, which is the next scheduled closing date under the Purchase Agreement. In addition, if COX exercises its rights to extend the Due Diligence Period in accordance herewith, then the Closing will not occur prior to the ensuing closing date under the Purchase Agreement in the month following any such extension. City will incur an additional $25,000 extension fee per month under the Purchase Agreement, which City shall continue to pay to Seller either as cash or a release of funds from the Remaining Deposit to the extent City receives the extension payments from COX described herein. As compensation therefor, COX agrees to deliver to Escrow Agent, concurrently with its delivery or the Deposit, an additional $75,000 (the "Extension Deposit"). If COX fails to deliver such amount to City on or before said date, then the same shall constitute a material default by COX hereunder. 'Pile Escrow Agent shall disburse $25,000 of the Extension Deposit to City on each of August t I, 2015, September 11, 2015 and October 9, 2015, unless prior to any such date, the Closing has occurred. If S-2 WF.ST259226413_3 EXECUTION COPY 08.04.15 the Closing has occurred prior to any such date, then any remaining Extension Deposit shall be returned to COX. If COX terminates this Agreement prior to August 25, 2015, then $25,000 of the Extension Deposit shall he returned to COX and the remaining $25,000 shall be disbursed to City. If' COX terminates this Agreement after August 25, 2015, then the Extension Deposit shall be deemed fully earned, due and payable, and Escrow Agent shall disburse the same to City within one (1) business day after COX's termination. Disbursements to City in accordance herewith shall be made by Escrow Agent to an account designated by City based on a unilateral instruction by City to Escrow Agent and without the need for any approval of, or instruction from, COX. "['here shall be no offset or credit against the Purchase Price for any disbursement to City of any portion of the Extension Deposit, it being agreed that the same is separate and independent consideration for certain agreements of City herein. 'file provisions of this Section 3.6 shall survive any termination of this Agreement and shall not be subject to the limitations on remedies of City set forth in Section 13, 4. Due Diligence Period• Restrictions; Termination Right. 4.1 Due Diligence Period. COX shall have the period commencing on the Effective Date and ending at 5:00 p.m. Los Angeles time on the date that is twenty-one (21) days thereafter (August 25, 2015)(such period of time, as the same may be extended in accordance herewith, being hereinafter referred to as the "Due Diligence Period"), to review the Due Diligence Materials (as defined below) and any 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 COX. 4.2 Extension of Due Diligence Period. COX shall have the right, on two (2) occasions, to extend the Due Diligence Period, in each case for thirty (30) days each (the first extension period would end on September 24, 2015, and the second extension period would end on October 24, 2015). If COX desires to extend the Duc Diligence Period, COX shall send notice to City of such intent not later than 5 p.m. Los Angeles time on the date that is one (1) business day preceding the then -expiring Due Diligence Period (such notice being an "Extension Notice"). Prior to noon Los Angeles time on the last day of the then -expiring Due Diligence Period for which COX has delivered an Extension Notice, COX shall deliver to City, by wire transfer in immediately available funds, an extension fee in the amount of $250,000 (the "DDP Extension Tee"), which extension fee shall be deemed due and payable and fully earned by City upon the giving of the Extension Notice. If COX rails to deliver the DDP Extension Fee on or prior to noon Los Angeles time on the last day of the then -expiring Due Diligence Period, COX's Extension Notice shall be deemed ineffective. There shall be no offset or credit against the Purchase Price for any DDP Extension Fee, it being agreed that the same is separate and S-3 W 1.8 M59226413.3 EXECUTION COPY 08,04,1 S independent consideration for the right of COX to extend the Due Diligence Period. 43 Due Diligence Materials. For the purpose of COX's due diligence, City has provided to COX access to a website maintained by City's counsel wherein information regarding the Property (the "Due Diligence Materials") is maintained. City makes no representations or warranties about the truth, accuracy or completeness of any such or other materials provided to COX, except as expressly stated herein. 4.4 Right ko Terminate. COX shall have the right to terminate this Agreement, at any time prior to the end of the Due Diligence Period (as same may be extended herein), by notice given to City, if, during the Due Diligence Period, COX, in its sole and absolute discretion, is not satisfied with the Contract Rights for any or no reason whatsoever. If COX so terminates this Agreement, neither patty 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 (and remaining Extension Deposit(s), if any, subject to Section 3.6) shall be immediately returned to COX. If COX fails to give any such notice of termination prior to the expiration of the Due Diligence Period, COX will be deemed to have accepted the Contract Rights, 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. COX acknowledges that the "Contingency Period" under the Purchase 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 (but such fact shall not diminish COX's rights stated herein). As such, COX 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. City shall reasonably cooperate with COX, at no cost to City, to obtain certain endorsements or modifications in connection with the issuance of the title policy at Closing. Except as stated herein, COX is taking by assignment the Contract Rights, 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 COX's right to terminate the Agreement prior to the expiration of the Due Diligence Period in accordance herewith. 4.5 Entry onto the Property; Indemnity. City shall reasonably cooperate with COX's due diligence, including, without limitation, using diligent efforts to enable COX to have reasonable access to the Property (in accordance with Section 14 of the Original Agreement and all other terms and conditions of the Purchase Agreement) and the Due Diligence Materials. Notwithstanding the foregoing, in no event shall (a) COX's entry onto the S-4 WEST4.if»26,113,3 EXECUTION COPY 08,04.15 Property unreasonably disrupt or disturb the on -going operation or rights of Seller, or (b) violate the Purchase Agreement. COX shall deliver any request f'or entry on the Property to City in accordance with the Purchase Agreement. COX shall afford City an opportunity to have a representative of City present to accompany the party undertaking such on -site inspections, tests or investigations. After making any tests, inspections or investigations, COX 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 COX entering the Property to conduct any inspections, tests or investigations, COX 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 licensed in California, 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 patties, which insurance shall provide coverage against any claim for personal liability or property damage caused by COX or its agents, representatives or consultants in connection with such inspections, tests and investigations. COX shall promptly deliver to City copies of all non-proprietary reports, studies and results of tests, inspections and investigations obtained or conducted by COX with respect to the Property, other than reports that are subject to a confidentiality obligation or subject to attorney -client privilege (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), provided that COX makes no representation or warranty regarding the same. 4.6 Purchase Agreement. Notwithstanding anything to the contrary herein, COX 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. 4.7 Confidentiality. From the Effective Date until Closing, COX agrees (a) to keep all studies, reports, test results and other information concerning the Property furnished to or obtained by COX in connection with this Agreement confidential and not to disclose or reveal any such matters to any person other than COX's representatives and consultants 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 or investing, financing or developing same (or as otherwise required to be disclosed by law), and (b) not to use the information for any purpose other than in connection with COX's evaluation of the Property. The provisions of this Section 4,7 shall survive any termination of this S-5 W IISM50226113 _3 EXECUTION COPY 08.04.15 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. 4,8 Contacts with Third Parties. COX shall obtain City's prior reasonable approval of any contact made by COX, its employees, agents, representatives, contractors or consultants with a third party with a contractual relationship with City with respect to the Property of which COX has written notice (excluding Seller), as well as any governmental authority contacted or to be contacted with respect to the Property ("Third Parties"); provided, however, any notice under this Section 4.8 may be given via email to City to hpateI@ci.vernon.ca.us with a copy to michael.hamiltoncot dlapiper.com and City's failure to reasonably object within three (3) business days shall be deemed City's approval thereof. COX 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). COX shall copy City on all material correspondence with the Third Parties. COX 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, including, without limitation, plan and permit checks or (b)for background information necessary to obtain Phase 1 environmental reports. 4.9 Indemnity. COX shall keep the Property free from all liens created by or through COX, 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 COX and/or its agents, employees, representatives, contractors or consultants, or arising out of or resulting from COX'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 4.9 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. S-6 WES'1%259226,11.1 3 EXECUTION COPY 08,04.15 5.1 In order to induce COX to enter into this Agreement, City hereby represents and warrants to, and covenants with, COX as follows: 5.1.1 Attached hereto as Exhibit A is a true, correct and complete copy Of the Purchase Agreement. 'fhe Purchase Agreement has not been amended, assigned, or modified in any respect, and remains in full force and effect. There are no agreements or understandings between Seller and City, in City's capacity as buyer under the Purchase Agreement, regarding the Property which would be binding on COX after the Closing other than the Purchase Agreement and the agreements contemplated to be executed in connection therewith. 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 Subject to the dispute noted herein in Section 6, 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 COX with copies of all notices received by City from Seller under the Purchase Agreement. Since April 7, 2015, City has not delivered any notice of default to Seller under the Purchase Agreement, and to City's knowledge, since April 7, 2015, Seller has not defaulted in any material respect in the performance of its obligations under the Purchase Agreement. The representations in the preceding sentence are provided for informational purposes only, it being agreed that any default by Seller under the Purchase Agreement shall not give rise to any liability of City hereunder. 5.1.4 City has not previously assigned its Contract Rights to any other person or entity which assignment remains effective (including, without limitation, any assignment to PI Fruitland, LLC). 5.1.5 Subject to Section 10.1, City has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the hansuction contemplated hereby and the individuals executing this Agreement and the instruments referenced herein on behalf of City have the legal power, right and actual authority to bind City to the terms and conditions hereof and thereto. 5.1.6 Subject to Section 10, I, all requisite action (corporate, partnership or otherwise) has been taken by City in connection with the entering into of this Agreement, the execution and delivery of the S-7 WFS 'IA2SQ26413 3 EXECUTION COPY 08.04.15 instruments referenced herein, and the consummation of the transaction contemplated hereby. 5.2 In order to induce COX to enter into this Agreement, City hereby covenants to COX as follows: 5.2.1 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 waive any material rights under, the Purchase Agreement, or grant its consent or approval to any matter which is subject to its consent or approval under the Purchase Agreement, in all cases without COX's prior written approval (not to be unreasonably withheld, conditioned or delayed), Without limitation to the last sentence of Section 5.4, if COX fails to approve or disapprove any request for its consent nuclei- this Section S 2 1 within five (5) business days after request, COX shall be deemed to have approved the same. 5.2.2 City shall diligently perform all duties and obligations required of City as buyer under the Purchase Agreement so as to effect the Closing, to the extent the failure to do so would afford Seller the right to terminate the Purchase Agreement. 5,2.3 City shall reasonably cooperate with COX in obtaining any and all documentation contemplated by the Purchase Agreement (including, without limitation, escrow closing documents from Seller) in order to facilitate the Closing hereunder and under the Purchase Agreement; provided, however, that City is not required solely by this provision to give the Closing Notice to Seller. 5.3 In order to induce City to enter into this Agreement, COX hereby represents and warrants to City as follows 5.3.1 COX is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the State of California. COX 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 COX has full power and authority to bind COX; and when executed by COX, this Agreement shall be binding and enforceable against COX in accordance with its terms, and upon COX's execution of any other documents contemplated herein, they shall be binding and enforceable against COX in accordance with their terms. 5.3.2 COX is in compliance with the requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25, 2001) (the wcsnu9r_ea 1 t.3 S-8 EXECUTION COPY 08.04.15 "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"). COX is and has always been in compliance with the Uniting and Strengthening America by Providing Appropriate `(cols Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act"). COX: (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 COX understands that the consummation by COX of the transactions contemplated herein and/or under the Purchase Agreement are not contingent upon the receipt orally financing by or other extensions of credit to COX. 5A 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 COX. COX shall then respond at least one (1) business day prior to the deadline under the Purchase Agreement. If COX does not so respond, City reserves the right to decide how to respond to Seller in its sole discretion. COX will be bound by any such decision of City in such instance. 6. Prior Dispute. City has informed COX, and COX acknowledges that City and Seller were previously in it 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 Real Estate, a copy of which is included in Exhibit A attached hereto (the "Second Amendment"). COX has reviewed the Second Amendment and hereby approves or 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 COX. S-9 WES n25922e413.3 EXECUTION COPY 08.04,15 7. Reserved Rights. 7.1 COX acknowledges that the Second Amendment contemplates the (a) release of the Remaining Deposit by the Seller to the City (in the approximate amount of $600,000 minus any Extension Deposit(s) paid to the Seller) 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) (collectively, the "Seller Payments"). City reserves all rights with respect to the Seller Payments, and COX shall not be entitled to any portion of the Seller Payments. If and to the extent COX receives the same from Seller (or as a disbursement fi•om escrow under the Purchase Agreement), COX shall, at no cost to COX, hold the same in trust for the benefit of City and shall within one (I ) business day after receipt thereof cause the same to be delivered to City. Upon the Closing, COX agrees cooperate, at no cost to COX, in the execution of a written notice to Seller instructing Seller and the escrow agent under the Purchase Agreement to pay any such Seller Payments directly to City, and not to COX. 72 In consideration for City cooperating and ,joining in the execution of any documents required to effectuate the closing under the Purchase Agreement, if the Closing under this Agreement occurs prior to the closing Linder the Purchase Agreement, then concurrently with the delivery of the Purchase Price at the Closing hereunder, COX shall deliver to the Escrow Agent an amount equal to the difference between (a) the Seller Payments and (b) the total DDP Extension Fees and Extension Deposits paid to City by COX hereunder (said amount being the "Seller Payments Escrow"). If, within thirty (30) clays after the Closing hereunder, the closing Linder the Purchase Agreement occurs, then the Escrow Agent shall cause the Seller Payments Escrow to be released to COX, and thereafter the Seller Payments shall be made to City pursuant to Section 7.1 above. If the closing under the Purchase Agreement has not occurred within thirty (30) days after the Closing, then the Escrow Agent shall cause the Escrow Agent to disburse to City the Seller Payments Escrow. Upon the making of any such disbursement of the Seller Payments Escrow to City, City shall be deemed to have automatically assigned its rights to the Seller Payments to COX, and City shall reasonably cooperate with COX thereafter to ensure that such payments, irmade by Seller, are delivered to COX. 7.3 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. Concurrently with the delivery of the Purchase Price, COX shall deliver to Escrow Agent an amount equal to $1,250,000 (the "Financial Assurance"), "fhe Financial Assurance is provided by COX in accordance herewith pursuant to the expectation of the City that COX (and/or its tenant) will utilize at the Property till average minimum, for a S-10 W ES'1A259226413.3 EXECUTION COPY 08.04.15 trailing 12-month period, of (a) 3.3 mega watts or electrical power on or before January I, 2019, and (b) 4.8 mega watts of electrical power on or before January I, 2021, and (c) 8 mega watts of electrical power on or before January I, 2023 (each of (a) through (c) being a "Consumption Hurdle"). If COX 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 COX pursuant to a written instruction mutually executed by COX 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 ASSnrance) shall be deemed fully earned by, and due and payable to City, and disbursed by Escrow Agent to City. On or prior to the Closing, COX and City sliall execute and deliver to Escrow Agent a mutually acceptable escrow agreement in connection with the Financial Assurance. The parties shall split equally any costs charged by Escrow Agent in connection with such escrow for the Financial Assurance. This provision shall survive the Closing. 9. Closine. The closing of the assignment of the Purchase Agreement contemplated by this Agreement (the "Closing") shall be the date that is ten (10) days after the expiration of the Due Diligence Period as it, or the Closing, may be extended as provided herein (the "Closing Date"); provided that COX has not terminated this Agreement pursuant to its express right to do so herein. For circumstances other than a default by COX (which is governed by Section 132 below), if any condition precedent stated herein for the henefit of COX has not been satisfied or waived prior to the Closing Date, For any reason other than COX's default, COX 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 COX within one (1) business day of request therefor; provided, however, the foregoing shall not limit the provisions of Section 13.1 below. For circumstances other than a default by COX (which is governed by Section 13.2 below), if a City's Condition Precedent (as defined below) 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, immediately return the Deposit to COX. Closing shall take place at the offices of Escrow Agent; 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 COX by delivery of the Assignment (defined below) and COX 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 Contract Rights to COX 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, If the City Council has not approved this Agreement within ten (10) business days from the Effective Date, the Due Diligence Period (as the same may be extended in accordance herewith) shall be further extended on a day by clay basis until this Agreement is approved. If the City Council has not approved this Agreement by August 31, 2015, this Agreement shall terminate and the S-II W ES"IA259>_6J 13.3 EXECUTION COPY 08.04.15 Deposit, remaining Extension Deposit if any pursuant to Section 3 6 and any additional funds deposited by COX with Escrow Agent shall immediately be returned to COX. 10.2 As of the Closing Date, COX's representations and warranties contained herein shall be true and correct in all material respects and COX shall not be in default of any material obligation herein; 10.3 COX 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 and Sale Agreement in the form attached hereto as Exhibit B (the "Assignment"); 10.3.2 A power purchase agreement ("Power Purchase Agreement") in a form to be negotiated in good faith by the parties during the Due Diligence Period and failing which, either party shall have the right to terminate this Agreement, in which case the Deposit shall be immediately returned to COX. Upon agreement to the form, the parties shall acknowledge same in writing; and 10.3.3 All documents requited to be executed by the "Buyer" under the Purchase Agreement for purposes of effectuating the Closing thereunder (which City will request from Seller prior to the Closing), 10.4 COX 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 COX in accordance with this Agreement, including without limitation the Purchase Price and the Financial Assurance. 10.5 On or prior to COX's exercise of its first due diligence extension right (to the extent exercised by COX) or, if such extension is not exercised, the Closing hereunder, COX shall have delivered to City a copy of the agreed upon form of the executed lease between COX and rPlanet Earth, LLC, a Delaware limited liability company ("rPlanet Earth") which shall be binding on the parties thereto upon the Closing of this Agreement and pursuant to which rPlanet Earth leases the Property for a minimum often (10) years for purposes of operating a plastic recycling facility (the "Lease Agreement"), 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. COX shall use good faith efforts to cause the foregoing conditions to occur. 5-12 wes11e22(,ao3 EXECUTION COPY 08.04,15 11. COX's Conditions Precedent. The following shall be conditions precedent to COX's obligation herein to accept and assume the Purchase Agreement from City ("COX'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 Purchase Agreement shall be in full force and effect; 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 I I are solely for the benefit of COX and may be waived only by COX. COX shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. 12. Pre -Negotiation Letter: Non -Exclusive. 12.1 PNLA. City, COX, Randy Kendrick, Xebec Realty Partners and rPlanet Earth are parties to that certain letter agreement dated as of June 30, 2015 (the "PNLA"). The PNLA is incorporated herein by this reference. The obligations thereunder shall survive the Closing or the earlier termination of this Agreement. By its execution of this Agreement, COX ratifies and confirms its agreement to the terms of the PNLA; provided, however, nothing herein is intended to affect the representations and warranties under this Agreement given by City. 12.2 Non -Exclusive. Without limitation to any other provision herein, COX acknowledges and agrees that City is currently in discussions with multiple parties regarding potential transactions with such parties in relation to the Property (including potential assignments of the Contract Rights and/or sale of the Property to such other parties). City may continue such discussions and may enter into agreements with such other parties, provided the consummation of the transactions thereunder is contingent on the termination of this Agreement, COX waives any right to object to such dealings by City with such other parties. 13, Default. 13.1 COX'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 Contract Rights to COX 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 default within ten (10) business days following receipt of written notice thereof, except on account of a breach or default hereunder S-13 wus M59226,1113 EXECUTION COPY 08.04.15 by COX, COX may elect one of the following remedies (and COX hereby waives any and all other rights and remedies against City): (i) terminate COX's obligations under this Agreement by written notice to City (excluding obligations which are expressly stated to survive any such termination) and receive a full refund of the Deposit, or (d) 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 scheduled Closing Date. Except as provided for above, COX 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. COX'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 COX's waiver of any and all claims against City on account thereof. 13.2 City's Remedies For COX's Default. If, as of the Closing Date, (a) each of the COX's Conditions Precedent as set forth in this Agreement have been satisfied or waived, and (b) COX fails or refuses to timely consummate the Closing in accordance with the terms kind conditions of this Agreement, and COX has failed to cure same within ten (10) days following receipt of written notice thereof', 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 COX and keep the Deposit as liquidated damages. The foregoing provision shall not limit City's rights to Extension Deposits under Section 3_6 or DDP Extension Fee under Section 4 2, or City's remedies with respect to any obligations of COX which are expressly stated to survive the termination of this Agreement and/or which are expressly stated not to be sub?ject to this Section 13.2. The parties hereby agree that the amount of the Deposit shall be and constitutes liquidated damages. COX and City acknowledge and agree that it is diftictdt or impossible to determine the actual damages City would suffer from COX'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, AF`FER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF CITY'S DAMAGES AND AS CITY'S EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST COX IN THE EVENT THE CLOSING 1S NOT CONSUMMATED BY REASON OF A BREACH OR DEFAULT BY COX UNDER TEIIS AGREEMENT. City hereby waives its right to bring any action for datnages (including without limitation actual, consequential, special and punitive damages) arising out of or relating to this Agreement or COX's default hereunder, except an action to recover the Deposit following a COX'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, 5-14 W Ls11259226,113.3 EXECUTION COPY 08.041.15 Initials: cox city 13.3 Survival. The provisions of this Section 13 shall survive any termination of this Agreement. 14. Brokerage. City and COX 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. City and COX each agree to indemnify, defend and hold the other harmless from and against any claim or liability, as we contrary to the foregoing representations ll as court costs and legal fees, arising out of claims 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 COX set forth in Sections 13.1 and 13.2. 15. Miscellaneous. 15.1 Business Days. "Business Day" or "business day" shall have the meanings assigned to same in Section 25 of the Original Agreement. If the last day for performance orally obligation or exercise of any right falls on a clay 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 orally 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 provide(] herein. 15A 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 Contract Rights and the Purchase Agreement and 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. wss iM;r__ra i i. � 9» S-15 EXECUTION COPY 08.04.15 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 Pal -ties hereto and to their respective successors and assigns; provided, however, that none of the rights or obligations of COX hereunder shall be transferred or assigned by COX without the prior written consent of City, which consent may be granted or withheld in City's sole and absolute discretion; provided, however, that COX may, without the consent of City, assign its rights under this Agreement to any entity which is controlled by, controlling, or under common control with COX and which is owned at least 25% directly or indirectly, by (i) CAM Fruitland Capital LLC a Delaware limited liability company and affiliate of Cohen Asset Management, file., a California corporation, (ii) Fruitland XC, LIE, a Delaware limited liability company and affiliate of Xebec Development Company, a California corporation, and/or (iii) 3200 Fruitland GAP, LLC, a Delaware limited liability company and affiliate of Oaktree Capital Management, LP, a Delaware limited partnership. No permitted assignment or transfer by COX shall relieve COX from its obligations hereunder, it being understood that upon any assignment or transfer COX shall remain liable to City for the performance of the obligations of COX 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, COX 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, COX 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 COX, and if COX so consents and City so terminates the Purchase Agreement, this Agreement shall be of no further rorce or effect and the Deposit shall be returned to COX. If COX does not consent, City will not terminate the Purchase Agreement, and COX shall be bound to close the transaction contemplated hereby and under the Purchase Agreement in accordance herewith and therewith. The terms or Section 5.4 herein shall govern with respect to the giving or any such consent by COX 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 counterpart is signed by both City and COX. 5-16 WFS M592264 H,3 EXECUTION COPY 08.04,15 I5.10 Severability. In the event any provision of this Agreement shall be held to be invalid or unenforceable by any court of competentjurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 15.11 Recording. Neither this Agreement not, 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 Partv Beneficiaries. City and COX 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, investors, employees, agents (including without limitation Escrow Agent), and consultants (including without limitation attorneys, accountants, and brokers), lenders, partners and prospective lenders and partners 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, 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. S-17 WFS U5922ea133 EXECUTION COPY 08.04.15 15.16 Police Powers. COX 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. COX agrees that COX'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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. ,- - TE Tj 1 /its ------- , Mari E. Ayala City Clerk "CITY": COPY OF VERNON Namc: W. Michael McCormick Its: Approved as to form: DLA Piper LLP (US), Special Counsel to City [Signatures continue on next page] wism.i nz59226, S-18 "COY": FRUITLAND OWNER LLC, a Delaware limited liability company By: Fruitland JV LLC, a Delaware limited liability company, its Sole Member By: Fruitland COY Venture LLC, a Delaware limited liability company, its Sole Member By: CAM Fruitland Capital LLC, a Delaware limited liability company, its Sole Member By: Cohen Holdings 2015 LLC, a Delaware limited liability company, its Sole Member — — y Co Name: Bradley S. Cohen Title: President & CEO wIMnUs922A,1i 3.i S-2 EXmyrr A PURCHASE AGREEMENI [copies attached heretol Exhibit A -I WGS'112592264133 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 Fruitland Owner 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 (the "Original Agreement"), 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"), and as further amended by that certain Third Amendment to the same dated as of June 11, 2015 (the "Third Amendment"). The First Amendment, Second Amendment, and Third Amendment, together with the Original Agreement and Addendum are collectively referred to as 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 orAugust_, 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) Exhibit 13-1 W Fs M592264133 IN WITNESS WI IEREOF, the parties hereto have executed this Assignment on the date and year written below. Dated: August_, 2015 '`��_ TEST • ,� `� Maria E. Ayala,l City lerk WEiS'11255751754.3 ASSIGNOR: City of Vernon BY _ Na e: Title:,�avor Approved as to form: DLA piper LL I' (US), Special Counsel to Buyer ACCEPTED BY ASSIGNEE: FRUITLAND OWNER LLC, a Delaware limited liability company BY ___ BYL.Fruitland JV LLC Name: _a-Delaware_limitedliabdit coa Title: �m p my�'-- - 4ta Sele _Mefnber____ BY: Fruitland COX Venture LLC, a Delaware limited liability company, its Sole Member By: CAM Fruitland Capital LLC, a Delaware limited liability company, its Sole Member By: Cohen Holdings 2015 LLC, a Delaware limited I' bility-company, its S mbar y: Name: Bradley S. Cohen Title: President & CEO AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT Amendment to Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement THIS AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT AND ASSUNIPTION OF PURCHASE'AND SALTS AGREEMENT (this `.`Amendment") is made and entered into as of August 21, 2015 (the "Effective Date"), by and between the City of Vernon ("City"), and Fruitland Owner LLC, a Delaware limited liability company ("COX"). City and COX are each referred to herein as a "Party" ,mcl are collectively referred to as the "Parties", Rrw rl-AIS 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 ("Original Agreement"), with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of June I5, 2006 ("First Amendment"), as further amended by that certain Second Amendment dated as of April 7, 20 5 (the "Second Amendment"), as further amended by that certain Third Amendment dated as of,fune 11, 2015 (tbe "Third Amendment"). The Original Agreement as amended by the Addendum, the First Amendment, the Second Amendment and the Tbird Amendment shall hereinafter be referred to as the "Purchase Agreement". B. Seller owns fee simple title to certain real property located in Vernon, California and described more particularly in the Purchase Agreement (together with the Buyer UP Land, (as referenced in Section 4.1 of the Second Amendment) 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. D. Pursuant to the terms and conditions of that certain Agreement Regarding Assignment and Assumption of ,Purchase and Sale Agreement, dated as of August 4, 2015, executed by and between the City and COX (the "Assignment'), City agreed to assign and transfer its right, title and interest in, to, under and pursuant to the Purchase Agreement to COX. R The Parties desire to amend the Assignment as set forth herein. F. All capitalized terms not otherwise defined herein sliall have the meanings given to such terms in the Assignment. AGREEMENT For good and valuable consideration, the receipt of which is hereby acknowledged, COX. and City hereby agree as follows: 1. Escrow Agent. Section 3.2 of the Assignment is hereby amended by defining [lie "Escrow Agent" as follows: "First American Title hisar nee, Company, Attention: MauriceNeri." The 'Parties agree to exeento any document reasonably required to transfer ftnds currently being hold by Chicago 'Title Company in the Deposit Escrow to such newly defined Escrow Agent. WaS '25988709I.1 Miscellaneous. a, Except to the extent expressly modified by this Amendment, the Assignment is ratified and remains in full force and effect. To Cho extent: of any inconsistency between this Amendment and the Assignment, the terms and conditions of this Amendment shall control, b, This Amendment may be executed in multiple coimCerparts, all of which, taken together, shall constitute one document. This 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, [Signature Pages Follow] WESM59889091..1 TN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Amendment as of the Effective Date, C[l'V: City of Vernon _... Name: W,..__Michael Mcrorm k Title: Mayor Mar'E. Ayal City Clerk Approved as to form: DLA Piper LIP (US), Special Counsel to Buyer [,'ignatures continue on neat page.1 WES'1'\25988309I.I COX: FRUITLAND OWNER LLC, a Delaware limited liability company By: Fruitland JV LLC, a Delaware limited liability company, its Sole Member By: Fruitland COX Venture LLC, a Delaware limited liability company, its Sole Member By: CAM Fruitland Capital LLC, a Delaware limited liability company, its Sole Member By: Cohen Holdings 2015 LLC, a Delaware limited liability company, its Sole Member Name: Bradley S. Cohen Title: President & CEO [Signatures continue on next page] WFSI�2598830911 ESCROW AGENT: ESCROW .AGENT, by its execution below, hereby accepts (as of the date first above written) the foregoing Amendment and agrees to act as Escrow Agentunder the Assigrunent in strict accordance with its terms. FIRST AMERICAN TITLE INSURANCE COMPANY By: Name: Its: WUSIN259883091.t El Raines FeldmanLLP September 22, 2015 VIA E-MAIL, FAX & CERTIFIED MAIL RETURN RECEIPT REQUESTED City of Vernon 4305 Santa Fe Avenue Vernon, California 90058 Attention: Hema P. Patel, City Attorney Email: hi)atel@ci.vernon,ca.us Fax: 323.826.1438 Poverly Hills 9720 Wilshire Boulevard, 5°1 Floor Beverly Hills, California 90212 livine 18401 Von Korman Avenue, Suite 270 Irvine, California 92612 Main: 310.440.4100 www.raineslow.com Direct: 310.734,0401 Fax:310.765.7731 arainesCaraineslow.com DLA Piper LLC 550 South Hope Street, Suite 2300 Los Angeles, California 90071-2678 Attention: Michael D. Hamilton, Esq. Email: michael.hamilton(@dlaoiper.com Fax: 213,330.7536 Re: Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement dated August 4, 2015 ("Agreement'), between City of Vernon ("City"), and Fruitland Owner LLC, a Delaware limited liability company ( "COX"); Extension Notice. Dear Ms. Patel and Mr. Hamilton: As you know, this firm is counsel to COX in connection with the transaction contemplated by the Agreement. All capitalized terms used, but not defined herein, shall have the meanings assigned to such terms in the Agreement. Pursuant to Section 4.2 of the Agreement, COX hereby provides written notice of its exercise of the option to extend the Due Diligence Period for an additional thirty (30) days beyond the current expiration period. Thus, the Due Diligence Period, as extended, will expire on October 24, 2015. In addition, COX will deliver into escrow the DDP Extension Fee of $250,000 as contemplated by Section 4.2 of the Agreement. September 22, 2015 Page 2 Direct: 310.734.0401 Fax:310.765.7731 araines@raineslaw.com It should be noted that COX continues to have additional rights to further extend the term of the Due Diligence Period as more specifically set forth in the Agreement. Please contact me if you have any questions regarding this extension. Sincerely, /r Andrew Raines of RAINES FELDMAN LLP cc: Escrow Agent