Resolution No. 2016-004*PLEASE REFER TO
RESOLUTION NO. 2016-04 FINAL
DOCUMENTS (PDFs Received) FOR
3200 FRUITLAND (PECHINEY)
- FINAL ASSIGNMENT AND ASSUMPTION
- FINAL EDI AGREEMENT
- FINAL ADDED FACILITIES AGREEMENT
- FINAL JOINT CLOSING INSTRUCTIONS
- FINAL ESCROW AGREEMENT
- FINAL BUYER'S SETTLEMENT STATEMENT
- FINAL CITY -OWNER SETTLEMENT
STATEMENT
RESOLUTION NO. 2016-04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
THIRD AMENDMENT TO 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 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 with Pechiney Cast Plate, Inc.
("Pechiney") for the purchase of property located at 3200 Fruitland
Avenue (the "Property"); and
WHEREAS, on August 18, 2015, the City Council of the City of
Vernon adopted Resolution No. 2015-57, as amended on August 21, 2015,
and November 17, 2015, approving an Agreement regarding Assignment and
Assumption of Purchase and Sale Agreement (the "Agreement") by and
between the City of Vernon ("City") and Fruitland Owner, LLC ("COX")
for property located at 3200 Fruitland Avenue to assign the City's
right, title and interest in, to and under the Agreement to COX; and
WHEREAS, the City and COX desire to enter into a Third
Amendment to the Agreement (the "Amendment") to amend certain
provisions of the Agreement relating to the closing date and
conditions of closing; and
WHEREAS, COX desires to assign their rights and obligations
of the Agreement to CPF/COX Vernon, LLC; and
WHEREAS, the City Council of the City of Vernon desires to
approve the Amendment and authorize the execution thereof.
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 and authorizes the execution of the Third Amendment to
Agreement regarding Assignment and Assumption of Purchase and Sale
Agreement with Fruitland Owner, LLC (the "Amendment"), 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 Amendment 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 Amendment to Fruitland Owner, LLC.
- 2 -
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 19th day of January, 2016.
ATTEST:
Ma is E. yala
City Clerk /
APPROVED PA TO FORM:
�V
JA-
Hema/Pht 1, City Attorney
Name: W. Michael McCormick
Title: Mayor / r ro- e
- 3 -
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I Maria E . Ayala City Clerk / -nAy-r; j�r l� of the City
of Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 2016-04, 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, January 19, 2016, and thereafter was duly
signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
t}-
Executed this 2 day of January, 2016, at Vernon, California.
(SEAL)
aria Ayala
City Clerk
- 4 -
EXHIBIT A
Third Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement
THIS THIRD AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT AND
ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Amendment") is made and
entered into as of January 2016 (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" and are collectively referred to as the "Parties".
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".
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, as amended by that certain Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of
August 21, 2015, as amended by that certain Second Amendment to Agreement Regarding
Assignment and Assumption on Purchase and Sale Agreement, dated as of October 27, 2015 (the
"Second Amendment to Assignment") (as amended, the "Assignment"), City has agreed to
assign its right, title and interest in, to and under the Purchase Agreement to COX.
E. The Parties desire to further amend the Assignment as set forth herein.
F. All capitalized terms not otherwise defined herein shall have the meanings given
to such terns in the Assignment.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby acknowledged, COX
and City hereby agree as follows:
WEST1266938325.5
1. Amendments.
a. Closin . The first sentence of Section 9 of the Assignment (as amended by
Section 1(b) of the Second Amendment to Assignment) is hereby amended in its
entirety as follows: "The closing of the assignment of the Purchase Agreement
contemplated by this Agreement ("Closing") shall occur on Thursday, February
18, 2016 (the "Closing Date"); provided that the parties may elect by mutual
written agreement to close prior to February 18, 2016." Section l (b) of the
Second Amendment to Assignment is of no further force or effect. Without
limitation thereto, neither party has a right to extend the Closing Date from and
after the date hereof.
b. City's Conditions Precedent. Section 10 of the Assignment is hereby amended to
add the following as Section 10.6 thereof: "10.6. On or prior to January 19, 2016,
the City Council of the City of Vernon shall have approved the Third Amendment
to this Agreement and such other matters as are related thereto as determined
necessary in the discretion of City staff, and COX shall have obtained all internal
approvals of the Third Amendment to this Agreement. City shall notify COX as to
whether such approval by City Council was obtained on or prior to 5 p.m. Los
Angeles time on January 19, 2016."
c. COX's Conditions Precedent. Section 11 of the Assignment is hereby amended
to add the following as Section 11.6 thereof "11.6. On or prior to January 19,
2016, the City Council of the City of Vernon shall have approved the Third
Amendment to this Agreement and such other matters as are related thereto as
determined necessary in the discretion of City staff, and COX shall have obtained
all internal approvals of the Third Amendment to this Agreement. COX shall
notify City as to whether such internal approvals were obtained on or prior to 5
p.m. Los Angeles time on January 19, 2016."
COX hereby acknowledges and agrees that all of COX's Conditions Precedent
have been satisfied as of the date hereof, except for the conditions set forth in
Section 11.1 (City's representations and warranties), Section 11.2 (Purchase
Agreement in effect as of Closing), and Section 11.6 (approval of Third
Amendment).
d. Failure of Condition Precedent under 10.6 or 11.6. If the City Council has not
approved the Third Amendment, or if COX has not obtained all internal approvals
of the Third Amendment, on or prior to January 19, 2016, then unless COX elects
to waive such condition and proceed to Closing (by written notice from COX to
City given no later than 5 p.m. Los Angeles time on January 21, 2016), the
Assignment shall automatically terminate, in which case neither party shall have
any further obligations thereunder or hereunder, except to the extent of any
obligations which are stated to survive. If COX elects to waive such condition
and proceed to Closing, then the Closing shall occur, consistent with the intent of
the parties in the Second Amendment to Assignment, on January 25, 2016, which
is the first business day following the 30' day after the condition in Section 11.5
2
W EST\266938325.5
of the Assignment (as added by the Second Amendment to Assignment) (i.e.,
approval of the Soil Management Plan by the California Department of Toxic
Substances Control) was satisfied.
e. Extension Fee. Pursuant to Section l(a)(iii) of the Second Amendment to
Assignment, COX shall continue to pay on the first calendar day of each month
until Closing (or the succeeding business day if the 1 st day of the calendar month
is not a business day) the amount of $25,000.00 per month to the City as
consideration for the Extension Fee payable by the City to Seller under the
Purchase Agreement. Pursuant to Section l(a)(iv) of the Second Amendment to
Assignment, such amounts shall not be credited against the Purchase Price at
Closing and are deemed fully earned and non-refundable upon payment to the
City as independent consideration for the City's agreements set forth in the
Second Amendment to Assignment and this Amendment.
f. Assignment. Pursuant to Section 15.7 of the Assignment, the City hereby
consents to an assignment of COX's rights and obligations under the Assignment
to CPF/COX Vernon, LLC, a Delaware limited liability company ("Assignee"),
provided, however, no such assignment by COX shall relieve COX from its
obligations under the Assignment, it being understood that upon any such
assignment COX shall remain liable to the City for the performance of the
obligations of COX under the Assignment. COX hereby represents and warrants
to City that Assignee shall be as of the date of Closing at least 10% beneficially
owned (whether directly or indirectly) by (i) CAM Fruitland Capital LLC, a
Delaware limited liability company and an affiliate of Cohen Asset Management,
Inc., a California corporation, (ii) Fruitland XC, LLC, a Delaware limited liability
company and an affiliate of Xebec, LLC a California limited liability company,
and/or (iii) 3200 Fruitland GAP, LLC, a Delaware limited liability company and
affiliate of Oaktree Capital Management, LP, a Delaware limited partnership.
g. Notice. The Assignment lacked a formal notice provision. It is agreed that from
and after the date hereof, and/or with respect to any prior notices given, any notice
or other communication required or desired to be given hereunder shall be in
writing and shall be deemed to have been sufficiently given for all purposes if (a)
delivered personally to the party to whom the same is directed, (b) sent by Federal
Express or other national overnight courier, charges prepaid, or (c) sent by
registered or certified mail, postage and charges prepaid, addressed to the party to
whom the same is directed at the address of such party as set forth below:
City: City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Hema Patel, City Attorney
E: hpatel@ci.vernon.ca.us
P: 323.826.1440
F: 323.826.1438
WESTV66938325,5
With a copy to: DLA Piper LLP US
550 South Hope Street, Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
E: michael.hamiltongdlWiper.com
P: 213.330.7736
F: 213.330.7536
Purchaser: CPF/COX Vernon, LLC
c/o Cohen Asset Management, Inc.
1900 Avenue of the Stars, Suite 500
Los Angeles, CA 90067
Attention: Mr. Bradley Cohen, President & CEO
E: Bradley@cohenasset.com
P: 310.860.5460
F: 310.860.0599
With a copy to: Raines Feldman LLP
9720 Wilshire Blvd., Fifth Floor
Beverly Hills, CA 90212
E: araines(i4aineslaw.com
P: 310.734.0401
F: 310.765.7731
Any notice which is served (i) personally shall be deemed to be given on the date
on which the same is actually served, (ii) by Federal Express or other national
overnight courier shall be deemed to be given on the date one (1) business day
after the same is delivered to Federal Express or other national overnight courier,
(iii) by mail shall be deemed to be given on the date two (2) business days after
the same is deposited in a regularly maintained receptacle for the deposit of
United States mail and (iv) by email on the date sent if prior to 5:00 p.m. pacific
time, and otherwise on the following business day, provided that the recipient
acknowledges receipt of the same. If no acknowledgement of email notice is
received by the sender within 12 hours of being sent, the sender may send, by
alternative means provided under (i) or (ii) above, the same notice on or before 24
hours after the original email notice was sent and the same shall be deemed
effective and timely for purposes herein as if given by such other means on the
date of the original email. Any party may change its address for purposes of this
Agreement by giving the other party notice thereof in the manner hereinabove
provided for the giving of notices. Notices delivered by any attorney for either
party are deemed effective. Notices previously given in accordance with the
foregoing are hereby deemed to have been effective and neither party is aware of
any notice having been given in a manner other than as provided.
2. Miscellaneous.
4
WESTQ66938325.5
a. COX hereby confirms, and shall be estopped fiom claiming to the contrary, that
to COX's knowledge, City is not in default under the Assignment and no facts or circumstances
exist which, upon the giving of notice, or passage of time, or both, would constitute a default by
City. City hereby confirms, and shall be estopped fiom claiming to the contrary, that to City's
knowledge, COX is not in default raider the Assignment and no facts or circumstances exist
which, upon the giving of notice, or passage of time, or both, would constitute a default by Cox.
b. Except to the extent expressly modified by this Amendment, the Assignment is
ratified and remains in full force and effect. To the extent of any inconsistency between this
Amendment and the Assignment, the terms and conditions of this Amendment shall control.
c. This Amendment may be executed in multiple counterparts, 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]
WEST\266938325.5
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives
to execute this Amendment as of the Effective Date.
CITY:
City of Vernon
By: _
Name:
Title:
Approved as to form:
DLA Piper LLP (US), Special Cormsel to Buyer
[Signatures continue on next page]
V1-M66938325.5
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: Bra . ey S. Cohen
Title: President & CEO
[Signatures continue on next page]
WEST\266938325.4
ESCROWAGENT:
ESCROW AGENT, by its execution below, hereby accepts (as of the date first
above written) the foregoing Ainendment and agrees to act as Escrow Agent under the
Assignment in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: _
Name:
Its:
wESM66938325.5
STAFF REPORT
E EIVED
JAN 13 2016
JAB 14 2016 Cf 1 Y /WiMNISTRATI
C�1Y CEERk�S OFFICE STAFF REPORT
INDUSTRIAL DEVELOPMENT DEPARTMENT
DATE: January 19, 2016
TO: Honorable Mayor and City Council
FROM: Alex Kung, Economic Development ManagerC
RE: Approval of Third Amendment to Agreement Regarding Assignment and
Assumption of Purchase and Sale Agreement with Fruitland Owner, LLC
(COX) for the property located at 3200 Fruitland Avenue
Recommendation
A. Find that approval of the Third Amendment to Agreement Regarding Assignment and
Assumption of Purchase and Sales Agreement proposed in this staff report is exempt from
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.
B. Adopt a resolution approving the Third Amendment to Agreement Regarding Assignment
and Assumption of Purchase and Sale Agreement with Fruitland Owner, LLC for the
property located at 3200 Fruitland Avenue, in substantially the same form as submitted
herewith.
Background
At the August 12, 2015 meeting the City Council adopted Resolution No. 2015-57 which
approved the assignment of approximately 14.53 acres of unimproved property located at 3200
Fruitland Avenue to COX for $22,556,769 for the purpose of redevelopment. Since the approval
the City granted COX an amendment to the agreement to correct the Escrow Agent. At the
November 17, 2015 meeting the City Council ratified the second amendment to extend the
closing date to December 30, 2015 with an extension up to sixty days. In late December 2015,
COX communicated to the city the desire to assign a percentage of their interest to another
investor. Below is a summary of the terms and agreements for the Third Amendment:
1) Assignment: COX's rights and obligation shall be assigned to CPF/COX Vernon, LLC.
The assignment does not relieve COX from its obligations to the city under the original
assignment.
2) Closing: The Closing date shall occur Thursday, February 18, 2016 unless both parties
agree to close prior to that date. If the City Council has not approved the Third
Amendment by January 19, 2016 COX may elect to waive any outstanding conditions
and close on January 25, 2016 OR the original Assignment and Agreement with COX
would terminate.
3) Extension Fee: COX shall pay an additional $25,000 extension fee for the month of
February. This fee will be passed on to Pechiney.
Fiscal Impact
The city will receive an additional $25,000 fee, however, this amount will be offset by the
$25,000 extension fee that Pechiney charges the city. Thus, the net impact to the city is zero.
Attachment(s)
None
FULLY EXECUTED AGREEMENT
Third Amendment to
Agreement Regarding Assignment and. Assumption of Purchase and Sale Agreement
THIS THIRD AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT AND
ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Amendment") is made and
entered into as of January A, 2016 (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" and are collectively referred to as the "Parties".
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".
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, as amended by that certain Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of
August 21, 2015, as amended by that certain Second Amendment to Agreement Regarding
Assignment and Assumption on Purchase and Sale Agreement, dated as of October 27, 2015 (the
"Second Amendment to Assignment") (as amended, the "Assignment"), City has agreed to
assign its right, title and interest in, to and under the Purchase Agreement to COX.
E. The Parties desire to further amend the Assignment as set forth herein.
F. All capitalized terms not otherwise defined herein shall 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;
WEST1266938325.5
Amendments.
a. Closin . The first sentence of Section 9 of the Assignment (as amended by
Section l(b) of the Second Amendment to Assignment) is hereby amended in its
entirety as follows: "The closing of the assignment of the Purchase Agreement
contemplated by this Agreement ("Closing") shall occur on Thursday, February
18, 2016 (the "Closing Date"); provided that the parties may elect by mutual
written agreement to close prior to February 18, 2016." Section l (b) of the
Second Amendment to Assignment is of no further force or effect. Without
limitation thereto, neither party has a right to extend the Closing Date from and
after the date hereof.
b. Cites Conditions Precedent. Section 10 of the Assignment is hereby amended to
add the following as Section 10.6 thereof: "10.6. On or prior to January 19, 2016,
the City Council of the City of Vernon shall have approved the Third Amendment
to this Agreement and such other matters as are related thereto as detennined
necessary in the discretion of City staff, and COX shall have obtained all internal
approvals of the Third Amendment to this Agreement. City shall notify COX as to
whether such approval by City Council was obtained on or prior to 5 p.m. Los
Angeles time on January 19, 2016."
c. COX's Conditions Precedent. Section 11 of the Assignment is hereby amended
to add the following as Section 11.6 thereof: "11.6. On or prior to January 19,
2016, the City Council of the City of Vernon shall have approved the Third
Amendment to this Agreement and such other matters as are related thereto as
determined necessary in the discretion of City staff, and COX shall have obtained
all internal approvals of the Third Amendment to this Agreement. COX shall
notify City as to whether such internal approvals were obtained on or prior to 5
p.m. Los Angeles time on January 19, 2016."
COX hereby acknowledges and agrees that all of COX's Conditions Precedent
have been satisfied as of the date hereof, except for the conditions set forth in
Section 11.1 (City's representations and warranties), Section 11.2 (Purchase
Agreement in effect as of Closing), and Section 11.6 (approval of Third
Amendment).
d. Failure of Condition Precedent under 10.6 or 11.6. If the City Council has not
approved the Third Amendment, or if COX has not obtained all internal approvals
of the Third Amendment, on or prior to January 19, 2016, then unless COX elects
to waive such condition and proceed to Closing (by written notice from COX to
City given no later than 5 p.m. Los Angeles time on January 21, 2016), the
Assignment shall automatically terminate, in which case neither party shall have
any further obligations thereunder or hereunder, except to the extent of any
obligations which are stated to survive. If COX elects to waive such condition
and proceed to Closing, then the Closing shall occur, consistent with the intent of
the parties in the Second Amendment to Assignment, on January 25, 2016, which
is the first business day following the 30' day after the condition in Section 11.5
2
WEST\266938325.5
of the Assignment (as added by the Second Amendment to Assignment) (i.e.,
approval of the Soil Management Plan by the California Department of Toxic
Substances Control) was satisfied.
e. Extension Fee. Pursuant to Section l (a)(iii) of the Second Amendment to
Assignment, COX shall continue to pay on the first calendar day of each month
until Closing (or the succeeding business day if the 1 st day of the calendar month
is not a business day) the amount of $25,000.00 per month to the City as
consideration for the Extension Fee payable by the City to Seller under the
Purchase Agreement. Pursuant to Section 1(a)(iv) of the Second Amendment to
Assignment, such amounts shall not be credited against the Purchase Price at
Closing and are deemed fully earned and non-refundable upon payment to the
City as independent consideration for the City's agreements set forth in the
Second Amendment to Assignment and this Amendment.
f. Assignment. Pursuant to Section 15.7 of the Assignment, the City hereby
consents to an assignment of COX's rights and obligations under the Assignment
to CPF/COX Vernon, LLC, a Delaware limited liability company ("Assignee"),
provided, however, no such assignment by COX shall relieve COX from its
obligations under the Assignment, it being understood that upon any such
assignment COX shall remain liable to the City for the performance of the
obligations of COX under the Assignment. COX hereby represents and warrants
to City that Assignee shall be as of the date of Closing at least 10% beneficially
owned (whether directly or indirectly) by (i) CAM Fruitland Capital LLC, a
Delaware limited liability company and an affiliate of Cohen Asset Management,
Inc., a California corporation, (ii) Fruitland XC, LLC, a Delaware limited liability
company and an affiliate of Xebec, LLC a California limited liability company,
and/or (iii) 3200 Fruitland GAP, LLC, a Delaware limited liability company and
affiliate of Oaktree Capital Management, LP, a Delaware limited partnership.
g. Notice. The Assignment lacked a formal notice provision. It is agreed that from
and after the date hereof, and/or with respect to any prior notices given, any notice
or other communication required or desired to be given hereunder shall be in
writing and shall be deemed to have been sufficiently given for all purposes if (a)
delivered personally to the party to whom the same is directed, (b) sent by Federal
Express or other national overnight courier, charges prepaid, or (c) sent by
registered or certified mail, postage and charges prepaid, addressed to the party to
whom the same is directed at the address of such party as set forth below:
City: City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Hema Patel, City Attorney
E: hpatel(c�,ci.vernon.ca.us
P: 323.826.1440
F: 323.826.1438
WEST1266938325.5
With a copy to: DLA Piper LLP US
550 South Hope Street, Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
E: michael.hamilton@dlapiper.com
P: 213.330.7736
F: 213.330.7536
Purchaser: CPF/COX Vernon, LLC
c/o Cohen Asset Management, Inc.
1900 Avenue of the Stars, Suite 500
Los Angeles, CA 90067
Attention: Mr. Bradley Cohen, President & CEO
E: BradleyAcohenasset.com
P: 310.860.5460
F: 310.860.0599
With a copy to: Raines Feldman LLP
9720 Wilshire Blvd., Fifth Floor
Beverly Hills, CA 90212
E: araines(@,raineslaw.com
P: 310.734,0401
F: 310.765.7731
Any notice which is served (i) personally shall be deemed to be given on the date
on which the same is actually served, (ii) by Federal Express or other national
overnight courier shall be deemed to be given on the date one (1) business day
after the same is delivered to Federal Express or other national overnight courier,
(iii) by mail shall be deemed to be given on the date two (2) business days after
the same is deposited in a regularly maintained receptacle for the deposit of
United States mail and (iv) by email on the date sent if prior to 5:00 p.m. pacific
time, and otherwise on the following business day, provided that the recipient
acknowledges receipt of the same. If no acknowledgement of email notice is
received by the sender within 12 hours of being sent, the sender may send, by
alternative means provided under (i) or (ii) above, the same notice on or before 24
hours after the original email notice was sent and the same shall be deemed
effective and timely for purposes herein as if given by such other means on the
date of the original email. Any party may change its address for purposes of this
Agreement by giving the other party notice thereof in the manner hereinabove
provided for the giving of notices. Notices delivered by any attorney for either
party are deemed effective. Notices previously given in accordance with the
foregoing are hereby deemed to have been effective and neither party is aware of
any notice having been given in a manner other than as provided.
2. Miscellaneous.
4
WESTN266938325.5
a. COX hereby confirms, and shall be estopped from claiming to the contrary, that
to COX's knowledge, City is not in default under the Assignment and no facts or circumstances
exist which, upon the giving of notice, or passage of time, or both, would constitute a default by
City. City hereby confirms, and shall be estopped from claiming to the contrary, that to City's
knowledge, COX is not in default under the Assignment and no facts or circumstances exist
which, upon the giving of notice, or passage of time, or both, would constitute a default by Cox.
b. Except to the extent expressly modified by this Amendment, the Assignment is
ratified and remains in full force and effect. To the extent of any inconsistency between this
Amendment and the Assignment, the terms and conditions of this Amendment shall control.
C. This Amendment may be executed in multiple counterparts, 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]
5
WESW66938325.5
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: Br . ey S. Cohen
Title; President & CEO
[Signatures continue on next page]
WEST\266938325.4
ESCROW AGENT:
ESCROW AGENT, by its execution below, hereby accepts (as of the date first
above written) the foregoing Ainendment and agrees to act as Escrow Agent under the
Assignment in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: _
Name:
Its:
WE5T\266938325.5
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives
to execute this Amendment as of the Effective Date.
CITY:
City of Vernon
B-
Name: W. Michael McCormick
Title: Mayor
Apprroyed as tq form:
I�
1
I& I mamma
Hema atel, City Attorney
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WESM66938325.5
TEST:
Maria E. Ayadk, City Clerk