Resolution No. 2015-057 (4) RESOLUTION NO . 2 015--5 7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF
PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY
OF VERNON AND FRUITLAND OWNER, LLC FOR PROPERTY
LOCATED AT 3200 FRUITLAND AVENUE
WHEREAS, on March 22, 2006, the City Council of the City of
Vernon ("the City") adopted Resolution No . 8995, as amended on
May 3, 2006, April 7 , 2015, and June 11, 2015, approving a Standard
Offer, Agreement and Escrow Instructions and Addendum (the "Agreement")
with Pechiney Cast Plate, Inc . ("Pechiney") for the purchase of
property Located at 3200 Fruitland Avenue (the "Property") ; and
WHEREAS, the City wishes to assigns its right, title and
interest in, to and under the Agreement to Fruitland Owner, LTC
("COX") ; and
WHEREAS, the City and COX desire to enter into an agreement
regarding assignment and assumption of purchase and sale agreement for
the Property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS :
SECTION 1 : The City Council of the City of Vernon hereby
finds and determines that the above recitals are true and correct .
SECTION 2 : The City Council of the City of Vernon finds
that this action is exempt under the California Environmental Quality
Act (CEQA) , in accordance with Section 15061 (b) (3) , the general rule
that CEQA only applies to projects that may have an effect on the
environment .
SECTION 3 : The City Council of the City of Vernon hereby
approves the Agreement regarding Assignment and Assumption of Purchase
and Sale Agreement with Fruitland Owner, LLC ( "the Agreement" ) , in
substantially the same form as the copy which is attached hereto as
Exhibit A.
SECTION 4 : The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for,
and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 5 : The City Council of the City of Vernon hereby
instructs the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein, approved or authorized, including but not limited
to, any non-substantive changes to the Agreement attached herein.
SECTION 6 : The City Council of the City of Vernon hereby
directs the City Clerk, or the Deputy City Clerk, to send a fully
executed Agreement to Fruitland Owner, LLC.
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SECTION 7 : The City Clerk, or Deputy City Clerk, of the
City of Vernon shall certify to the passage, approval and adoption of
this resolution, and the City Clerk, or Deputy City Clerk, of the City
of Vernon shall cause this resolution and the City Clerk' s, or Deputy
City Clerk' s, certification to be entered in the File of Resolutions
of the Council of this City.
APPROVED AND ADOPTED this 18th day of August, 2015 .
Al'-Nme—e-ImAA-111'1—
Name : W. Michael McCormick
Title : Mayor �.you��ro=Terms.
ATTEST:
City Ierk / :IIpy-C _
APPROVED AS TO FORM:
Hema Patel, Ci Attorney
- 3 -
STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
1, Maria E . Ayala , City Clerk / Depry--. t_y...�.Lr} 'of the City
of Vernon, do hereby certify that the foregoing Resolution, being
Resolution No . 2015-57, was duly passed, approved and adopted by the
City Council of the City of Vernon at a regular meeting of the City
Council duly held on Tuesday, August 18, 2015, and thereafter was duly
signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this day of August, 2015, at Vernon, California .
Maria Ayala
City Clerk
(SEAL)
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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, 2013 (the "Second Amendment"), as Further amended by that certain Third
Amendment dated as of June 1 1, 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. Seiler 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.
E. City wishes to assigns its right, title and interest in, to and under the Purchase
Agreement to COX, except as provided in Sections 7 and 8 below.
F. All capitalized terms not otherwise defined herein shall have the meanings given
to such terms in the Purchase Agreement.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby acknowledged, COX
and City hereby agree as foflows:
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 or City as "Buyer" under the Purchase
Agreement, except as provided in Sections 7 , and 8 below.
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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 DUI'
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 of 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. The Escrow Agent shall disburse $25,000 of the Extension
Deposit to City on each of August 11, 2015, September 1 I, 2015 and
October 9, 2015, unless prior to any such date, the Closing has occurred. If
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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 be retuned 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.
There 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. The 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.
I. 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 Due 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 Fee"), which extension fee
shall be deemed due and payable and fully earned by City upon the giving
of the Extension Notice. If COX fails 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
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independent consideration for the right of COX to extend the Due
Diligence period.
4.3 Due Diligrence 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 to 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 party shall have any further obligations
or liabilities to the other hereunder at law or in equity except for those
rights and obligations that expressly survive the expiration or termination
ofthis 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 obiigated 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 Enter 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
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Property unreasonably disrupt or disturb the on-going operation or rights
of Seller, or (b) violate the Purchase Agreement. COX shall deliver any
request for 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 palicics to name City and Setter as
additional insured parties, 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 taw), 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
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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 hpatel@�,ci.vernon.ca.us with a copy to
michael.hamilton ct diapiper.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 I
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
"Ifi ;Eemnified 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.
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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. The 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, €.LC).
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 transaction 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 10,1, 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
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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 under this Section 5.2.1 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 hind 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
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"Omer")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
"fools 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 of any 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 PLrrGhase 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 infotined COX, and COX acknowledges that City and
Seller were previously in a dispute regarding, among other things, Seller's performance under
the Purchase Agreement. In order to resolve such dispute, City and Seller entered into that
certain Second Amendment to Standard Offer, Agreement and Escrow Instructions for the
Purchase of 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 of and
consents to the same, and agrees to accept and assume the same and be bound thereby as of the
assignment of the Purchase Agreement by City to COX.
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7. Reserved Rights,
T I 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,M)
(collectively, the "Seller Payments"). City reserves all rights with respect
to the Seller Payments, and COX shall not be entitled to any portion ofthe
Seller Payments. If and to the extent COX receives the same from Seller
(or as a disbursement from 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 (1) 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.
7.2 In consideration for City cooperating and joining in the execution of any
documents required to effectuate the closing Linder the Purchase
Agreement, if the Closing under this Agreement occurs prior to the closing
under 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) days after the Closing hereunder, the closing under
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.l 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 autornatically assigned its rights to the Seller
Payments to COX, and City shall reasonably cooperate with COX
thereafter to ensure that such payments, if made by Seller, are delivered to
COX.
7.3 The provisions of this Section 7 shall su+•vive 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 (tile "Financial Assurance"). The
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 an average minimum, for a
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trailing 12-month period, of(a) 33 mega watts of electrical power on or before January 1, 2019,
and (b) 4.8 mega watts of electrical power on or before January 1, 2021, and (c) 8 mega watts of
electrical power on or before January 1, 2023 (each of(a) through (c) being a "Consumption
flurdle"), if COX and/or its tenant achieves the Consumption Hurdle by the specified date
applicable thereto, and City confirms the same in writing, then t/3rd of'tile 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 rasa portion of the interest accrued on the Financial Assurance) shall be
deemed fully earned by, and due and payable to City, and disbursed by Escrow Agent to City.
On or prior to the Closing, COX and City shall 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. Closing, 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 13.2
below), if any condition precedent stated herein For the benefit 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 13.11 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, ill
which case this Agreement shall be of no further force or effect and the Escrow Agent shall, and
is thereby 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 day basis until
this Agreement is approved. If' the City Council has not approved this
Agreement by August 31, 20[5, this Agreement shall terminate and the
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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 clay 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 required 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 or this Agreement and
pursuant to which rPlanet Earth leases the Property for a minimum of ten
(I0) 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 ofthis Agreement, have the right to
waive any of such conditions. COX shall use good faith efforts to cause the foregoing conditions
to occur.
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l I. 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;
1 l.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 1 1 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 rPlane€
Earth are parties to that certain letter agreement dated as of June 30, 2015
(the "MA"). 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 Stich 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
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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(ii) bring an action
for specific performance of this Agreement, which action shall be brought,
if at all, no later than ninety (90) days after the 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 [imitation 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 tails or refuses to timely
consummate the Closing in accordance with the terms and 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 DDI' 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 subject to this Suction 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 difficult 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, AFTER 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 IS NOT
CONSUMMATED BY REASON OF A BREACH OR DEFAULT BY
COX UNDER THIS AGREEMENT, City hereby waives its right to bring
any action for damages (including without limitation actual, consequential,
special and punitive damages) arising out of or relating to this Agreement
or COX's default hereunder, except an action to recover the Deposit
fol€owing 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.
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�--
Initials:
COX CLty
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 well as court costs and legal fees, arising out of claims
contrary to the foregoing representations and warranties by a party claiming to have dealt with
the indemnifying party. Notwithstanding anything to the contrary contained herein, the mutual
indernnitics contained in this Section 14 shall survive Closing or any termination of this
Agreement and shalt 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 of any obligation or exercise of any right Falls on a day
other than a business day, then the last day for such performance or
exercise of such right shall be extended to and expire on the next
succeeding business day.
15.2 Time. Time is of the essence in the performance of each parry's
obligations hereunder.
15.3 Attorneys' Fees. If any party shall bring an action or proceeding against
the other party by reason of the breach or alleged violation of any term or
obligation hereof, or for the enforcement or interpretation of any provision
of this Agreement, the prevailing party in such action or proceeding shalt
be entitled to its reasonable costs and expenses of suit, including, but not
limited to reasonable attorneys' fees, which shall be payable whether or
not such action is prosecuted to judgment, and without regard to any other
limitation on remedies provided herein.
f 5.4 No Waiver. Subject to the deemed approvals under this Agreement, no
waiver by any party of the performance or satisfaction of any covenant or
condition shall be valid unless in writing, nor shall it be considered to be a
waiver by such party of any other covenant or condition hereunder.
15.3 Entire Agreement. This Agreement contains the entire agreement between
the parties regarding the Contract 1kights 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.
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15.6 Further Assurances. Before and after Closing, each party shall execute
and deliver to the other party all such documents that such other party may
reasonably require to effect, confirm or otherwise perfect the transfer of
property and other covenants and agreements of the parties contemplated
by this Agreement.
15.7 Successors, This Agreement shall bind and inure to the benefit of the
parties hereto and to their respective successors and assigns; provided,
however, that none of the rights or obligations of 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, Inc., a California corporation, (ii) Fruitland XC, LLC, a
Delaware limited liability company and affiliate of Xebee 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 force 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 of 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, `['his Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the saine agreement, and this Agreement shall
only be effective if a counterpart is signed by both City and COX,
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EXECUTION COPY 08.04.15
15,10 Severability. In the event any provision of this Agreement shall be held to
be invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
hereof.
15.11 Recording. Neither this Agreement nor any memorandum hereof shall be
recorded or tiled in the Office of the County Recorder of the county in
which the Property is located, or in any other public records of any
jurisdiction, and any attempt to do so may be treated by the other party as
a material breach of this Agreement.
15.12 No Third Party Beneficiaries. City and 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 1:3, but shall expire and
be of no further force or effect upon a Closing.
15.14 Construction. The language in all pants 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 Haw. This Agreement shall be governed by and construed
under the laws of the State of California, without regard to conflicts of law
principles.
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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 or
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 or any fees or expenses or the like shall not
constitute a default ar breach by City hereunder,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first set forth above.
"CITY":
CITY OF VERNON
T
- By:
Mari E. Ayala Name: W. Michael McCurmicck
City Clerk
Its. Mayor
Approved as to Form:
DLA Piper LL.P (US), Special Counsel to City
(Signatures continue on next page]
S-18
WFSTU59226-1 I J3
46 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: Colien Holdings 2015 LLC,
a Delaware limited liability company,
its Sole Member �_-----_~ -
Name: Bradley S. Cohen
Title: President& CEO
wrS-n2;922r11.3 i S-2
EXHIBIT A
PURCHASE AGREEMENT
jcoPies attached heretol
Exhibit A-I
L'.X141BIT B
ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT
FOR VALUABLE CONSIDERATION, the receipt and suFiiciency of which are hereby
acknowledged, the undersigned, City of Vernon ("Assignor"), hereby assigns to Fruitland
Owner I_,LC, 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 oFJune 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
Grade in futtherance of the transaction contemplated by and between Assignor and Assignee as
described in that certain Agreement regarding Assignment and Assumption of Purchase and Sate
Agreement dated as of August^, 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 shalt be deemed an
original, but ail of which shalt constitute one and the same agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE1
Exhibit B-I
wrs�)2392z641_;.3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the date
and year written below,
Dated: August!,2015
ASSIGNOR:
City of Vernon
TEST 13Y
�d Na the: w. MichaP.l �o>^mi cam.—_
Marta E. Ayala, Title: rya o
City 101erk -_y r-
Approved as to form:
DLA Piper LLP (US), Special COlanSal to Buyer
ACCEPTED BY:
ASSIGNEE:
FRUITLAND OWNER LLC,
a Delaware limited liability company
By By: Fruitland JV LLC,
Name: a elawareJimit�4ty-cmpany,---
Title: _-ttS-Sel,,Mernber -- .
By; Fruitland COX Venture LLC,
a Delaware limited liability company,
its Sale Member
By: CAM Fruitland Capital LLC,
a Delaware limited liability company,
its Sole Member
By: Cohen Holdings 2015 LLC,
a Delaware limited l eempany,
Iyft So mbar
:
Name: Bradley S, Cohen
Title: President & CEO
W F.5"1125575175d.3