EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (this “Agreement”) is made
and entered into as of this 11 day of August, 2011 (the “Effective Date”), by and between KIRKHILL-TA CO., a California corporation (“Seller”), and ABSOLUTE SCREENPRINT, INC., a California corporation (“Buyer”).
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1.
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Agreement of Purchase and Sale; Designation of Escrow Holder.
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1.1.
Purchase and Sale
. Subject to and on the terms and conditions herein set forth,
Seller hereby agrees to sell, assign and convey to Buyer, and Buyer hereby agrees to purchase and acquire from Seller that certain real property situated in the City of Brea, County of Orange, State of California, located at the address commonly
known as 333 Cliffwood Park Street, Brea, California 92821, and more particularly described on
Exhibit A
attached hereto, including all appurtenances thereto and improvements thereon (the “Property”).
1.2.
Escrow and Title
. The purchase and sale of the Property shall be accomplished through
an escrow (the “Escrow”) which Seller has established or will establish with Heritage Escrow Company, Attention: Ms. Janet Tilbury, 3200 El Camino Real, Suite 105, Irvine, CA 92602 (“Escrow Holder”). Fidelity National Title
Company, Attention: Mr. Rich Saul, 1300 Dove Street, Suite 310, Newport Beach, CA 92660 (“Title Company”) shall be title insurer for the transaction.
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2.
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Consideration; Method of Payment.
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The purchase price which Buyer shall pay to Seller for the Property shall be Six Million Seven Hundred Thousand and No/100 Dollars ($6,700,000.00) (the “Purchase Price”), which Buyer shall pay
to Seller through Escrow at Closing as follows:
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2.1.
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Earnest Money Deposit
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2.1.1. Within two (2) business days following full execution and delivery of this Agreement by the parties hereto, Buyer shall deposit with Escrow Holder by certified or cashier’s
check or by wire transfer the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) (the “Initial Deposit”).
2.1.2. Within two (2) business days following the fulfillment or waiver by Buyer of the conditions precedent set forth in
Sections 3.4.1 through 3.4.4
of this Agreement, Buyer
shall deposit with Escrow Holder by certified or cashier’s check or by wire transfer the additional amount of One Hundred Thousand and No/100 Dollars ($100,000.00) (the “Additional Deposit” and, together with the Initial Deposit, the
“Earnest Money Deposit”).
2.1.3. Escrow Holder shall forthwith deposit all portions of
the Earnest Money Deposit in a federally-insured financial institution in an account in the name of Buyer. All interest earned on the Earnest Money Deposit shall be and become a part of the Earnest Money Deposit and shall be handled in the same
manner as the Earnest Money Deposit as provided for herein.
2.2.
Balance of Purchase Price
. The balance
of the Purchase Price shall be deposited by Buyer in Escrow strictly as and when required under
Section 10
hereof.
2.3.
Failure to Deposit Earnest Money Deposit
. In the event Buyer fails to deposit any portion of the Earnest Money Deposit in Escrow strictly as and when contemplated under
Section 2.1
, Seller shall have the right at any time thereafter to terminate this Agreement and all further rights and obligations hereunder by giving written notice to Buyer.
2.4.
Failure to Deposit Balance of Purchase Price
. In the event that Buyer fails to
deposit the balance of the Purchase Price in Escrow strictly as and when contemplated under
Section 2.2
above, Seller shall be entitled to retain the Earnest Money Deposit as liquidated damages as more fully provided in
Section 16
hereof.
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3.
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Conditions Precedent to Buyer’s Obligation to Close.
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3.1.
General
. Set forth in
Section 3.4
are certain conditions precedent to the
obligation of Buyer to consummate the transaction herein contemplated in accordance with this Agreement. Each such condition must be satisfied or waived in writing by Buyer or deemed satisfied as provided in this
Section 3
before Buyer
shall be obligated to consummate this transaction.
3.2.
Approval by Buyer
.
Within the period specified hereinbelow for each condition precedent, Buyer shall give written notice to Seller and Escrow Holder stating, with respect to each such condition precedent, whether, in Buyer’s sole and absolute discretion, such
condition is approved or disapproved by Buyer or is waived by Buyer. With respect to any such condition which is not approved by Buyer and would be reasonably susceptible to cure by Seller, Buyer shall specify in such notice in reasonable detail the
reason therefor. In the event that Buyer fails timely to give such notice with respect to any such condition, such condition shall be deemed to be satisfied.
3.3.
Seller’s Right to Cure
. In the event that Buyer gives timely notice that any condition precedent under
Section 3.4.1, 3.4.3 or 3.4.4
is not approved by
Buyer as provided above, Seller shall have the right, but not the obligation, for a period often (10) days after receipt of such notice, to attempt to cure one (1) or more of Buyer’s objection(s) if such objection(s) are reasonably
susceptible to cure. If Seller elects to make such attempt, Seller shall notify Buyer and Escrow Holder in writing of which of Buyer’s objection(s) Seller shall attempt to cure within ten (10) days after receipt of said notice from Buyer.
Within five (5) days after the end of said ten (10)-day period for Seller’s attempt to cure those Buyer’s objection(s) which Seller specified in its notice, Buyer shall give notice to Seller and Escrow Holder stating whether, in
Buyer’s sole and absolute discretion, the condition precedent is approved by Buyer, is waived by Buyer, or remains unsatisfied (specifying, in the latter case, in reasonable detail the reason why such condition remains unsatisfied). In the
event that Buyer fails timely to give such notice, such condition shall be deemed satisfied. In the event that any condition remains unsatisfied as of the relevant time period specified above in this
Section 3.3
with respect to such
condition, either party may terminate this Agreement within five (5) days following the expiration of the relevant
time period by giving written notice to the other party and Escrow Holder specifying the unsatisfied condition or conditions. Notwithstanding anything to the contrary contained herein, Buyer may,
in its sole and absolute discretion, for any reason or no reason whatsoever, terminate this Agreement during the Study Period (as defined below) by providing written notice thereof to Seller. In the event of any such termination pursuant to this
Section 3.3
, Escrow Holder shall terminate the Escrow and return the Earnest Money Deposit to Buyer, and, except as otherwise expressly provided in this Agreement, neither party shall have any further rights or obligations under this
Agreement. Buyer and Seller shall each be responsible for payment to Escrow Holder of one-half (1/2) of the Escrow fees and charges related to termination, if any.
3.4.
Conditions Precedent
. The conditions precedent to Buyer’s obligation to
consummate this transaction are the following:
3.4.1. Buyer shall have thirty
(30) days from the date that Buyer receives a current Preliminary Report or Commitment for the Property (the “Title Report”) and copies of all documents constituting exceptions to title of record which are specified in Schedule B of
the Title Report (the “Title Review Period”) to approve or disapprove title to the Property as shown on the Title Report and all matters shown on a current ALTA land survey of the Property (the “Survey”) if Buyer elects, at
Buyer’s sole cost and expense, to obtain the Survey. If Buyer elects to obtain the Survey, Buyer shall, at its sole cost and expense, order the Survey within three (3) business days after the Effective Date. Buyer’s failure to timely
obtain the Survey shall not extend the Title Review Period set forth above.
3.4.2. Within
sixty (60) days after the Effective Date, Buyer shall have obtained from a lending institution of its choice (“Lender”) a written commitment for a loan secured by a first deed of trust or mortgage on the Property on terms satisfactory
to Buyer, in Buyer’s sole and absolute discretion.
3.4.3. Within the period ending
forty-five (45) days after the Effective Date (the “Study Period”), Buyer shall have conducted or obtained, at its sole cost and expense, all surveys, tests, audits and studies, including economic feasibility studies, and conducted
such physical inspections as Buyer deems necessary to enable Buyer to approve all aspects of the Property, including without limitation the economic advisability of acquiring fee title to the Property, the structural condition of the building and
the soils and ground water conditions in and about the Property. Buyer and its agents may enter onto the Property to make such inspections, audits, studies, tests and surveys thereof (collectively, the “Inspections”) as Buyer deems
necessary, in Buyer’s sole discretion, to bring about the satisfaction of this condition, and Seller shall reasonably cooperate with Buyer (at no cost to Seller) to complete any and all such Inspections; provided, however, that Buyer shall not
conduct any invasive Inspections without Seller’s prior written consent. Buyer shall keep in strict confidence the results of any such Inspections, and shall disclose the results thereof only (a) to its professional advisors and potential
lenders for purposes of evaluating and/or underwriting Buyer’s acquisition of the Property, or (b) if and as required by law or legal process, and then, if permissible under applicable law, only after delivering ten (10) days notice
of such requirement to Seller. Buyer shall keep the Property free and clear of any liens resulting from any such entry onto the Property; Buyer shall repair any damage to the Property resulting from such entry; and Buyer shall defend Seller with
counsel
reasonably satisfactory to Seller and protect, hold harmless and indemnify Seller from and against any and all claims, demands, damages, liabilities or costs of any kind whatsoever (including
attorneys’ fees) arising out of or connected with any such entry onto the Property or the disclosure of the results of any such Inspections, in contravention of Buyer’s confidentiality obligations contained in this
Section 3.4.3
. In the event Buyer terminates this Agreement for failure of any condition precedent as provided in this
Section 3
, Buyer shall immediately deliver to Seller all Property Records previously delivered to Buyer
and copies of the Inspections Results (as defined in
Section 5.4
) as required under
Section 5.4
. The foregoing covenants of Buyer shall survive and be enforceable following consummation or termination of this Agreement.
3.4.4. Within five (5) days after the Effective Date, Seller shall either (i) deliver
to Buyer copies of, or (ii) make available to Buyer and those professional advisors and potential lenders of Buyer whose names and contact information have been provided to Seller in writing prior to any review by such professional advisors and
potential lenders of Buyer, at the office of Seller at 300 East Cypress Street, Brea, CA 92821, and Buyer may review and make and retain copies of, the following materials, papers and things concerning the Property that are in Seller’s
possession; All files, reports, documents, correspondence, lease documents, service contracts, maintenance contracts, improvement contracts, license agreements, warranties, soils reports, environmental reports, correspondence related to hazardous
materials, income and expense statements, property tax bills for the most recent five (5) years, year end financial statements for the Property, if any; reports issued in connection with any insurance inspections, if any; engineer’s
reports and/or plans with respect to the mechanical, electrical and other physical characteristics of the Property, if any; copies of any and all reports or studies prepared by Seller or Seller’s representatives or by any third party in the
possession of Seller, all plans, specifications, drawings and similar documents, all guaranties and warranties related to the Property, if any; all certificates of compliance, governmental permits and approvals, if any, relating to the construction,
operation, use or occupancy of any part of the Property and any and all other papers contained in the files maintained by Seller in the ordinary course of business for the Property. All such materials are hereinafter sometimes collectively referred
to as the “Property Records,” Notwithstanding the foregoing, Seller’s only obligation hereunder shall be to use its reasonable best efforts to assemble all such Property Records and Buyer acknowledges that Seller makes no warranty as
to the completeness of such Property Records as presented to Buyer and shall not rely on the information contained in any report or analysis included in such Property Records. Buyer shall review and approve or disapprove all such Property Records on
or prior to the expiration of the Study Period.
3.4.5. As of Closing, Seller shall have given no
notice to Buyer stating that Seller has obtained knowledge or notice of any fact or facts which would make any representation or warranty of Seller set forth in
Section 4
hereof untrue, incomplete or misleading in any material respect.
Upon Seller’s determination or knowledge after the Effective Date that any representation or warranty set forth in
Section 4
has become untrue, incomplete or misleading in any material respect, Seller shall immediately give written
notice thereof to Buyer.
3.4.6. Prior to the expiration of the Study Period, Seller shall
complete the work and remediation of the Property described on
Exhibit B
(the “Seller Work”).
3.4.7. As of Closing, Seller shall have performed each and all
of the obligations to be performed by Seller under this Agreement prior to Closing.
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4.
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Representations and Warranties of Seller.
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4.1.
Representations and Warranties
. Seller makes the following representations and
warranties each of which (i) shall survive Closing for one (1) year (except for the representations and warranties set forth in
Sections 4.1.1 and 4.1.2
, which shall survive Closing) regardless of what investigations Buyer shall
have made with respect thereto prior to Closing, (ii) is true in all respects as of the Effective Date, and (iii) shall be true as of Closing except to the extent that Seller obtains knowledge or notice of any fact or facts which would
make any representation or warranty untrue or misleading in any material respect and discloses such fact or facts to Buyer in writing prior to Closing:
4.1.1. Seller is duly organized, validly existing and in good standing under the laws of the State of California.
4.1.2. This Agreement has been duly executed and delivered by Seller and is a valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
4.1.3. Other
than this Agreement, as shown in the Title Report or as disclosed in the Property Records, (i) Seller has not entered into any contract or agreement other than this Agreement which gives any person, firm or entity any right to acquire the
Property, any rights or estates in or to the Property or any portion thereof or otherwise affects or pertains to the Property and (ii) to the best of Seller’s knowledge, no person, firm or entity has any right to acquire the Property or
any rights or estates in and to the Property or any portion thereof.
4.1.4. To the best of
Seller’s knowledge, there is no condemnation or eminent domain proceeding pending or threatened against the Property.
4.1.5. To the best of Seller’s knowledge, there is no litigation pending or threatened which affects the Property or which would or might affect the transaction contemplated hereby
or the ability of Seller to satisfy all of its obligations hereunder.
4.1.6. Seller has not
received any written notification from any insurance company, Board of Insurance Underwriters or any governmental authority specifying any non-compliance of the Property or any portion thereof with applicable codes, statutes, ordinances or
regulations which remains uncured.
4.1.7. To the best of Seller’s knowledge, there is
no lien or special assessment, other than ad valorem taxes, pending or threatened against the Property by any governmental authority.
4.1.8. Seller is not a foreign person as defined in Internal Revenue Code Section 1445(f)(3).
4.2.
Seller’s Knowledge
. Buyer and
Seller each specifically acknowledge and agree that all references contained in this Agreement, in any of the exhibits attached hereto and in any document, certificate or statement to be delivered by Seller to Buyer hereunder to “Seller’s
knowledge” (whether used in the phrase “to the best knowledge of Seller,” “to the best of Seller’s knowledge”, “Seller’s knowledge”, “actually known to Seller”, “known to Seller”, or
in similar or other contexts) (i) shall refer to the actual personal knowledge of Lawrence Pierce and Thomas Kilsby (singularly and collectively, “Pierce/Kilsby”); (ii) shall in no case refer to the actual or constructive
knowledge of any other employee, agent, officer, director or other representative of Seller or any investment advisor, attorney or other contractor or representative of Seller (together with Pierce/Kilsby, the “Seller Representatives”);
and (iii) shall in no case impose upon Seller or any Seller Representative any duty or obligation to verify any representation, warranty or statement contained in this Agreement, in any exhibit attached hereto or in any document, certificate or
statement to be delivered by Seller to Buyer hereunder, or to otherwise investigate the facts or circumstances relating or otherwise pertinent thereto.
4.3.
Seller’s Possession
. Buyer and Seller each further specifically acknowledge and agree that all references contained in this Agreement, in any of the exhibits
attached hereto and in any document, certificate or statement to be delivered by Seller to Buyer hereunder “in possession of Seller” or “in Seller’s possession” or using comparable or equivalent phrases (i) shall refer
solely to documents, materials and other property in the actual physical possession of Pierce/Kilsby, or actually known by Pierce/Kilsby to be in the actual physical possession of a Seller Representative, and (ii) shall in no case impose upon
Seller or any Seller Representative any form of duty or obligation to verify which documents, materials or other property are in the actual or constructive possession of Seller, any Seller Representative or any other person, or to make any form of
investigation whatsoever.
4.4.
Seller Representative
. Seller hereby represents
and warrants that Pierce/Kilsby are the agents or representatives of Seller most knowledgeable about (i) the present operation and condition of the Property and (ii) the matters set forth and covered by the representations and warranties
set forth in this
Section 4
.
4.5.
Buyer Remedies
.
4.5.1. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller
representations and warranties prior to or at the Closing, Buyer’s sole right and remedy with respect to such breach shall be to terminate this Agreement within five (5) days after Buyer is so notified or otherwise first becomes aware of
such breach. In the event of such termination, the Escrow Holder shall terminate the Escrow and return the Earnest Money Deposit to Buyer and, except as otherwise expressly provided in this Agreement, neither party shall thereafter have any further
rights or obligations under this Agreement; Seller shall be responsible for payment to the Escrow Holder of the Escrow fees and charges related to termination, if any. Buyer shall have no right to seek damages for any breach of any Seller
representations and warranties of which Buyer is notified or otherwise first becomes aware prior to or at the Closing.
4.5.2. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties during the relevant period of time after the
Closing as specified in
Section 4.1
, Buyer’s sole rights and remedies with respect to such breach
shall be to compel Seller to take such action at Seller’s expense as may be necessary to cure the breach, which right of Buyer (and the concomitant obligations of Seller discussed below)
following any such breach of representation or warranty shall survive the consummation of this Agreement and to seek actual damages caused by Seller’s breach of representation or warranty under this
Section 4.5.2
; in no event will
Buyer have any right to rescind the transaction contemplated herein on or after the Closing or to seek consequential damages. To the extent that Seller is required to take any action to cure a breach of any Seller representations and warranties
pursuant to this
Section 4.5.2
, Seller shall commence such curative action within fifteen (15) days following receipt by Seller of notice from Buyer of the relevant breach and shall diligently pursue such curative action to
completion.
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5.
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Seller’s Disclaimer With Respect to Physical Condition of Property and Applicable Laws and Regulations; Buyer to Take Property “As
Is”; Buyer’s Release and Indemnity Re: Environmental Hazard Risks; Delivery of Inspection Reports.
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5.1.
As Is Purchase
. Seller makes no representation or warranty whatsoever with respect to the physical condition of the Property. Buyer acknowledges that:
5.1.1. Buyer has entered into this Agreement and if Buyer purchases the Property hereunder, Buyer will do so
on the basis of its own investigation of the physical condition of the Property, including the building and other improvements and the soils and ground water conditions of the Property and its immediate environs; and
5.1.2. Buyer will acquire the Property in an “AS IS” condition and shall assume the risks that
adverse physical conditions may not have been revealed by its investigation.
5.2.
Limited Representations and Warranties
. Seller makes no representation or warranty whatsoever as to existing or proposed governmental laws or regulations applicable to the Property, including without limitation laws or regulations concerning
the Americans with Disabilities Act (“ADA”), zoning or land use or Hazardous Materials (as defined in
Section 5.3)
. Buyer acknowledges that it has entered into this Agreement and if Buyer purchases the Property hereunder, Buyer
will do so on the basis of its own review and investigation of the applicability and effect of such laws and regulations, and Buyer assumes the risks that adverse matters may not have been revealed by its investigation.
5.3.
Buyer Waiver and Release
.
5.3.1. Effective as of Close of Escrow (as defined in
Section 8
), Buyer hereby waives, releases,
acquits and forever discharges Seller and its officers, directors, partners, employees, members, agents, and any other person acting on behalf of Seller, from and against any and all claims, actions, causes of action, demands, rights, damages,
costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseeable or unforeseeable, which Buyer now has or which may arise in the future on account of or in any way growing out of or connected with the ADA, zoning or land
use regulations or laws and with the presence in or on the Property, or any building or other improvement thereon, or under the surface of the Property, of underground storage tanks, asbestos-containing materials, transformers or other equipment
containing polychlorinated biphenyls, or any hazardous or toxic waste, substance or
material as defined in any Federal, State or Local law, rule, ordinance or regulation which may now or hereafter be applicable (collectively, the “Hazardous Materials”) (the
“Released Claims”). The foregoing covenants of Buyer shall survive and be enforceable in accordance with their terms following the consummation of this transaction and shall not be merged with or into the Deed delivered by Seller to Buyer
through Escrow at Close of Escrow.
5.3.2. To the extent of Buyer’s waiver and release as set
forth in this
Section 5.3
, Buyer hereby specifically waives the provisions of Section 1542 of the California Civil Code (“Section 1542”) and any similar law of any other state, territory or jurisdiction. Section 1542
provides:
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A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with the debtor.
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Buyer hereby specifically acknowledges that Buyer has carefully reviewed this section and discussed its
import with legal counsel and that the provisions of this section are a material part of this Agreement.
5.4.
Delivery of Inspection Reports
. Buyer shall deliver
to Seller copies of the results of all Inspections described in
Section 3.4.3
(the “Inspections Results”) as follows:
5.4.1. If Buyer elects to terminate this Agreement pursuant to the terms and conditions of this Agreement, Buyer shall immediately deliver to Seller copies of the Inspections Results at no cost
or expense to Seller;
5.4.2. If the sale of the Property is not consummated because of
the default of Buyer, Buyer shall immediately deliver to Seller copies of the Inspections Results at no cost or expense to Seller; and
5.4.3. Following the Closing, if Seller desires copies of any Inspections Results, Buyer shall deliver to Seller copies of the Inspections Results requested by Seller in writing immediately following
receipt of Seller’s written request therefor and payment by Seller of fifty percent (50%) of the out of pocket costs paid by Buyer to obtain the Inspections Results for which Seller has requested copies, up to a maximum aggregate payment
by Seller to Buyer under this
Section 5.4.3
equal to Ten Thousand and No/100 Dollars ($10,000.00).
Buyer’s obligations under
this
Section 5.4
shall survive the Closing or the termination of this Agreement.
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6.
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Representations and Warranties of Buyer.
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Buyer hereby makes the following representations and warranties, each of which (i) shall survive Closing, regardless
of what investigations Seller shall have made with respect thereto prior to Closing, (ii) is true in all respects as of the Effective Date, and (iii) shall be true as of Closing except to the extent that Buyer obtains knowledge or notice
of any fact or facts which would make any representation and warranty untrue or misleading in any material respect and discloses such fact or facts to Seller in writing prior to Closing:
6.1.
Organization
. Buyer is duly organized, validly existing and in good standing under
the laws of the State of California.
6.2.
Authorization
. The persons executing
this Agreement on behalf of Buyer are authorized to do so and, upon execution by such parties, this Agreement shall be a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms.
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7.
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Buyer’s Title Insurance Policy.
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Buyer’s title to the Property at Close of Escrow shall be evidenced by the issuance of a standard owner’s
policy of title insurance (the “Buyer’s Title Insurance Policy”) at Closing in favor of Buyer or its nominee insuring that fee simple title to the Property is vested in Buyer or its nominee, subject only to (i) the lien to secure
payment of real estate taxes and assessments not delinquent; (ii) exceptions to title approved by Buyer pursuant to
Section 3
of this Agreement; (iii) if Buyer does not elect to obtain the Survey pursuant to
Section 3.4.1
sufficient to remove the following exception, all matters that would be disclosed by a physical inspection or survey of the Property; (iv) all matters that are actually known to Buyer; (v) any additional
exceptions or matters created by Buyer, its agents, employees or authorized representatives; (vi) the printed conditions, restrictions, exceptions, stipulations and other provisions contained in Buyer’s Title Insurance Policy; and
(vii) such other exceptions as Buyer, in its sole discretion, may approve in writing (collectively, the “Permitted Exceptions”). If elected by Buyer at Buyer’s sole cost and expense, the Buyer’s Title Insurance Policy shall
include extended coverage. All matters concerning title to the Property shall merge in the Deed to be delivered by Seller to Buyer at Closing. Seller’s obligation with respect to the condition of title to the Property at Closing shall be
completely satisfied and fulfilled upon the issuance by Escrow Holder of Buyer’s Title Insurance Policy. Absent fraud on the part of Seller, or the breach of any representation, warranty or covenant of Seller set forth in this Agreement of
which Buyer is not aware and that is not cured on or prior to the Closing, in the event of any defect in or other matter adversely affecting title to the Property which appears following Closing, Buyer shall look solely to Buyer’s Title
Insurance Policy to obtain any redress or relief for any damages incurred by Buyer as a result of said defect or matter and Buyer hereby releases Seller from any and all cost, damage, claim or liability arising out of any such defect or matter.
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8.
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Closing Date; Close of Escrow.
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8.1.
Closing
. Unless this Agreement has been terminated pursuant to
Section 3
or
Section 14
hereof, or unless deferred as provided below or in
Section 14
hereof, the consummation of the purchase and sale of the Property in accordance with this Agreement (the
“Closing”) shall take place as soon as possible on that date that is ten (10) days after the last of the conditions precedent set forth in
Sections 3.4.1 through 3.4.4
hereof has been satisfied, waived or deemed waived by Buyer, provided that in any event the Closing shall take place on or prior to October 19, 2011 (the “Closing Date”) at or through the office of Escrow Holder. If the Closing Date
is a Saturday, Sunday or business holiday, the Closing shall take place on the next regularly scheduled business day. “Close of Escrow” shall mean the delivery to Buyer of (i) the Deed vesting title to the Property in Buyer by
recordation thereof in the Official Records in the county where the Property is located, and (ii) the disbursement to Seller in accordance with its instructions of the proceeds in Escrow in Seller’s account at Closing.
8.2.
Disbursement of Purchase Price
. At Closing Escrow Holder shall disburse to Seller, in
such manner and to such account as Seller shall specify in a separate written instruction to Escrow Holder, immediately available funds in the amount of the Purchase Price paid by Buyer for the Property as specified in
Section 2
hereof
(increased or decreased, as the case may be, by the net amount of the credits and debits to Seller’s account at Closing made by Escrow Holder in accordance with
Sections 11 and 12
of this Agreement).
8.3.
Possession
. Possession of the Property shall be delivered to Buyer at Closing subject
to the Permitted Exceptions. Notwithstanding anything to the contrary set forth in this Agreement, and in addition to the Seller Work, Seller shall remove all of its equipment and trade fixtures from the Property, and shall, at its sole cost and
expense, fully repair any damage caused to the improvements on the Property resulting from such removal. At Closing, Seller shall deliver (i) the interior of the building comprising a portion of the Property to Buyer in broom-clean condition
and (ii) the exterior areas of the Property generally clean and free of debris.
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9.
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Seller’s Closing Obligations.
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9.1.
Deposit of Documents
. Not later than Escrow Holder’s close of business on the
last regular business day before the Closing Date or earlier if requested by Escrow Holder (but in no event more than three (3) regular business days prior to the Closing Date), Seller shall deposit in Escrow: (i) a duly executed and
acknowledged Grant Deed for the conveyance of the Property to Buyer in accordance with this Agreement (the “Deed”); (ii) any other documents, instruments or things required by this Agreement to be delivered by Seller to Buyer or
deposited by Seller into Escrow at Closing; and (iii) any supplemental instructions which Escrow Holder may require for the consummation of the transaction in accordance with this Agreement.
9.2.
Deposit of Funds
. Prior to 2:00 p.m. (in the time zone of Escrow Holder) on the last
regular business day before the Closing Date (or on the Closing Date if permitted by Escrow Holder), Seller shall deposit cash or immediately available funds in Escrow in such amount as (or make other arrangements satisfactory to Escrow Holder) to
cover any net obligations of Seller arising out of the prorations and apportionment of Closing costs as specified in
Sections 11 and 12
of this Agreement as may be reasonably estimated by Escrow Holder.
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10.
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Buyer’s Closing Obligations.
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10.1.
Deposit of Documents
. Not later than Escrow Holder’s close of business on the last regular business day before the Closing Date or earlier if reasonably requested by Escrow
Holder (but in no event more than three (3) regular business days prior to the Closing Date), Buyer shall deposit in Escrow: (i) any instruments, documents or things required by this Agreement to be delivered by Buyer to Seller or
deposited into Escrow at Closing; and (ii) any supplemental instructions which Escrow Holder may require for consummation of the transaction in accordance with this Agreement.
10.2.
Deposit of Purchase Price
. On the Closing Date at such time as will allow Escrow Holder to
disburse funds by wire transfer and consummate the transactions herein, Buyer shall deposit immediately available funds (e.g., by cashier’s check or wire transfer) into such account of Escrow Holder as shall be specified by Escrow Holder in the
sum of the following amounts:
10.2.1. The balance of the Purchase Price as specified in
Section 2.2
hereof; and
10.2.2. Such amount as may be reasonably estimated by Escrow Holder to
cover any net obligations of Buyer arising out of the prorations and apportionment of closing costs pursuant to
Sections 11 and 12
of this Agreement.
The following matters shall be prorated as of the Closing Date: current real property taxes and assessments and utilities.
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12.
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Apportionment of Closing Costs.
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Seller shall pay the following Closing costs: one-half of the Escrow Holder’s fees and expenses; any and all transfer and other transaction taxes; any search or other costs for the title report and
the premium for Buyer’s Title Insurance Policy (standard coverage only); the costs of any title policy endorsements offered by Seller to cure any title objection raised by Buyer; and the recording costs of any instrument recorded to correct any
defect in title. Buyer shall pay the following Closing costs: one-half of the Escrow Holder’s fees and expenses; the recording fee for the Deed and any instruments evidencing or securing Buyer’s financing; the increase in premium for
Buyer’s Title Insurance Policy if Buyer elects to obtain extended coverage and the costs of any endorsements obtained by Buyer. All other Closing costs shall be apportioned to and paid by the parties, respectively, in accordance with the
prevailing local custom as determined by Escrow Holder. In the absence of any such custom, all such costs shall be apportioned to and paid by the parties equally.
13.1.
Brokerage Fees
. Seller shall pay through Escrow at the Close of Escrow and conditional on the Close of Escrow a commission to CB Richard Ellis (Sean Ward) (“Seller’s
Broker”) equal to five percent (5%) of the “gross sales price”, as such term is used in the separate agreement by and between Seller and Seller’s Broker and executed by Seller February 3, 2011;
such commission shall be paid at Close of Escrow as a split between Seller’s Broker (two and a half percent (2.5%) of the gross sales price as defined above) and Voit Commercial
Brokerage (Joe Miller) (“Buyer’s Broker”) (two and a half percent (2.5%) of the gross sale price as defined above).
13.2.
Indemnification
. Buyer and Seller hereby acknowledge that no broker’s commission or finder’s fee is payable other than that referred to in
Section 13.1
with
regard to the transaction contemplated by this Agreement; and Buyer and Seller (each being hereinafter referred to in this
Section 13
as the “Indemnitor”) each agrees to defend with counsel reasonably satisfactory to the other
party and indemnify the other party from and against all liability, claims, actions, causes of action, suits, demands, damages, or costs of any kind arising from or connected with any broker’s or finder’s fee or commission or charge
claimed to be due any person arising from the Indemnitor’s conduct with respect to said transaction, other than the commission provided for in
Section 13.1
. This obligation shall survive and be enforceable following Closing or
termination of this Agreement.
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14.
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Damage or Destruction; Condemnation.
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14.1.
Notice of Damage or Destruction or Condemnation/Eminent Domain
. Seller shall notify Buyer
promptly of (i) the occurrence of any damage to or destruction with respect to all of the Property or any material portion thereof, or (ii) the institution or maintenance, or threat thereof, of any condemnation or similar proceedings with
respect to all of the Property or any material portion thereof.
14.2.
Damage or
Destruction
. In the event of a Material Casualty (as defined below), Buyer, at its option shall either (i) terminate this Agreement by delivering written notice of termination to Seller within ten (10) days after Buyer receives notice
from Seller of such insured casualty, or (ii) proceed to acquire the Property pursuant to the terms of this Agreement. If Buyer does not exercise its right to terminate this Agreement pursuant to the immediately preceding sentence or in the
event of any insured damage to or destruction of the Improvements is not a Material Casualty, the Purchase Price due to Seller from Buyer at Closing shall be reduced by the amount of any casualty insurance proceeds actually received by Seller prior
to Closing (except to the extent such proceeds have been used by Seller for repair or replacement of the damage caused by the casualty) and, to the extent any such casualty insurance proceeds have not actually been received by Seller prior to
Closing, Seller shall assign to Buyer any rights to collect such proceeds and shall reasonably cooperate with Buyer, at no cost to Seller, to collect such proceeds. As used herein, “Material Casualty” shall mean: (a) any insured
damage to or destruction of any of the buildings or other improvements located on the Property (the “Improvements”) for which the cost of repair or replacement equals or exceeds One Hundred Thousand and No/100 Dollars ($100,000.00); or
(b) any damage to or destruction of any of the Improvements that results in Lender terminating its commitment or otherwise refusing to finance Buyer’s acquisition of the Property.
14.3.
Condemnation
. In the event any Material Condemnation, Buyer at its option shall either
(i) terminate this Agreement by delivering written notice of termination to Seller within ten (10) days after Buyer receives notice from Seller of such condemnation, or (ii) proceed to acquire the Property pursuant to the terms of
this Agreement. If Buyer does not exercise its right to
terminate this Agreement pursuant to the immediately preceding sentence or in the event the proceeds from such condemnation or other proceedings are estimated to be less than One Hundred Thousand
and No/100 Dollars ($100,000.00), the Purchase Price due to Seller from Buyer at Closing shall be reduced by the amount of any condemnation proceeds arising out of such condemnation proceedings with respect to the Property which have actually been
received by Seller prior to Closing (except to the extent such proceeds have been used by Seller for rebuilding in connection with the condemnation or similar proceedings) and, to the extent any such condemnation proceeds have not actually been
received by Seller prior to Closing, Seller shall assign to Buyer any rights to collect such proceeds and shall reasonably cooperate with Buyer, at no cost to Seller, to collect such proceeds. As used herein, “Material Condemnation” shall
mean any condemnation or other proceedings are instituted or maintained with respect to the Property (a) for which the proceeds are estimated to equal or exceed One Hundred Thousand and No/100 Dollars ($100,000.00), or (b) that results in
Lender terminating its commitment or otherwise refusing to finance Buyer’s acquisition of the Property.
14.4.
Termination.
If this Agreement is terminated pursuant to this
Section 14
, Escrow
Holder shall forthwith terminate the Escrow. Seller and Buyer shall each be responsible for payment to Escrow Holder of one-half (1/2) of the Escrow fees and charges related to termination, if any. Without limiting Buyer’s obligation to
deliver a copy to Seller of any and all Inspections Results as required under
Section 5.4
, upon termination of this Agreement as provided in this
Section 14
, Escrow Holder shall forthwith disburse Buyer’s Earnest Money
Deposit (and any interest earned thereon) to Buyer (less Buyer’s share, if then unpaid, of the Escrow fees and charges related to termination, if any). Except with respect to any of the parties’ obligations set forth in this Agreement
which by their terms survive the termination of this Agreement, neither party shall have any further rights or obligations under this Agreement or with regard to the purchase and sale of the Property.
15.1.
Notice Addresses
. Any notice, demand, approval, consent, or other communication required or desired to be given under this Agreement shall be in writing and shall be directed to
the party involved at the address indicated below:
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To Seller:
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Kirkhill-TA Co.
Attn: Scott Crawford
330 East Cypress Street
Brea, CA 92821
Telephone: 714-529-4901 x5271
Fax: 714-529-6716
Email: scott.crawford@esterline.com
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With a copy to:
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Perkins Coie LLP
Attn: Kirsten J. Day
1020 NW Couch Street, Tenth Floor
Portland, OR 97209-4128
Telephone: 503-727-2262
Fax: 503-727-2222
Email: kday@perkinscoie.com
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To Buyer:
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Absolute Screenprint, Inc.
450 Delta Avenue
Brea, California 92821
Attn: Ms. Andrea Joseph Restivo
Telephone: 714-529-2120
Fax: 714-529-2123
Email: andrea@absolutescreenprint.com
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With a copy to
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Sherry Meyerhoff Hanson & Crance LLP
610 Newport Center Drive, Suite 1200
Newport Beach, CA 92660
Attn: Frank M. Crance
Telephone: 949-719-2120
Fax: 949-719-1212
Email: fcrance@calawyers.com
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15.2.
Delivery of Notice
. Notices shall be sent by any of the
following means: (i) by delivery in person; (ii) by certified U.S. mail, return receipt requested, postage prepaid; or (iii) by Federal Express or other reputable “overnight” delivery service, provided that next-business-day
delivery is requested by the sender. Notices delivered in person shall be deemed effective immediately upon receipt (or refusal of delivery or receipt). Notices sent by certified mail shall be deemed given three (3) days after the date on which
the notice was deposited with the U.S. Postal Service. Notices sent by Federal Express or other reputable “overnight” delivery service shall be deemed given on the date deposited with the delivery service. Either party may, from time to
time, by written notice to the other, designate a different address which shall be substituted for the one above specified.
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16.
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Default; Liquidated Damages.
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16.1.
Default by Seller
. In the event the sale of the Property is not consummated because of the default of Seller, Buyer may, as its sole and exclusive remedy for such default, either
(i) terminate this Agreement by written notice to Seller and Escrow Holder, in which event the Earnest Money Deposit shall be immediately returned to Buyer and Seller shall reimburse Buyer for the reasonable out-of-pocket expenses incurred by
Buyer solely in connection with this Agreement from the Effective Date until notice of Seller’s default (the “Reimbursable Costs”), not to exceed Fifteen Thousand and No/100 Dollars ($15,000,00) (which reimbursement shall be subject
to Buyer providing evidence to Seller in reasonable detail of Buyer’s Reimbursable Costs, not to exceed Fifteen Thousand and No/100 Dollars ($15,000.00)), or (ii) seek to enforce specific
performance of this Agreement, In the event Seller interferes with the release of the Earnest Money Deposit to Buyer, then Seller shall be liable for all reasonable attorneys’ fees and other
costs and expenses which Buyer may incur in connection with Buyer’s enforcement of this
Section 16.1
. Except for the return of the Earnest Money Deposit and Buyer’s Reimbursable Costs as provided above, Seller shall in no event
be liable to Buyer for any actual, punitive, speculative, consequential or other damages. Notwithstanding the foregoing, nothing contained herein shall limit the remedies Buyer shall have to enforce any rights it has against Seller under the
indemnity provisions of
Sections 13 and 34
.
16.2.
ACKNOWLEDGEMENT
. SELLER AND BUYER
ACKNOWLEDGE THAT SELLER IS VERY DESIROUS OF CLOSING THE TRANSACTION CONTEMPLATED HEREBY WITHIN THE TIME FRAME ESTABLISHED BY THIS AGREEMENT, AND THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE PURCHASE AND SALE OF THE
PROPERTY PROVIDED FOR IN THIS AGREEMENT DOES NOT CLOSE WITHIN SUCH TIME FRAME DUE TO BUYER’S DEFAULT UNDER THIS AGREEMENT. SELLER AND BUYER FURTHER ACKNOWLEDGE THAT SELLER WILL BE ENTITLED TO COMPENSATION IF THE PURCHASE AND SALE OF THE
PROPERTY DOES NOT CLOSE DUE TO BUYER’S DEFAULT. WITH THE FLUCTUATION IN LAND VALUES, THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER
FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY
THE EXTENT OF DAMAGES TO SELLER IN THE EVENT OF BUYER’S DEFAULT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE IN THE EVENT THAT THE PURCHASE AND SALE OF THE PROPERTY PROVIDED IN THIS AGREEMENT DOES NOT CLOSE DUE TO BUYER’S DEFAULT.
ACCORDINGLY, THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES OR SUCH COMPENSATION, AS THE CASE MAY BE, IS THE AMOUNT OF THE EARNEST MONEY DEPOSIT AND ANY INTEREST EARNED THEREON.
16.3.
LIQUIDATED DAMAGES
. THE PARTIES HEREBY AGREE THAT IF BUYER DEFAULTS UNDER THIS AGREEMENT, THEN
SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER THE AMOUNT OF THE EARNEST MONEY DEPOSIT WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES OR COMPENSATION, AS THE CASE MAY BE, UNDER THIS AGREEMENT AND SUCH RECOVERY OF THE EARNEST MONEY DEPOSIT
WITH ALL INTEREST EARNED THEREON SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF OR COMPENSATION TO SELLER, AS THE CASE MAY BE, AS A RESULT OF BUYER’S DEFAULT UNDER THIS AGREEMENT, EXCEPT AS SET FORTH IN THE LAST SENTENCE OF THIS
SECTION 16
.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL LIMIT THE REMEDIES SELLER SHALL HAVE TO ENFORCE ANY RIGHTS IT HAS AGAINST BUYER UNDER THE INDEMNITY PROVISIONS OF
SECTIONS 3.4, 13 OR 34
. EXCEPT IN THE CASE OF A BUYER BREACH OR
DEFAULT
UNDER THIS AGREEMENT (IN WHICH CASE THE EARNEST MONEY SHALL BE PAID TO SELLER) OR IN THE EVENT THE CLOSING OCCURS (IN WHICH CASE THE EARNEST MONEY DEPOSIT SHALL BE APPLIED AGAINST THE PURCHASE
PRICE), THE EARNEST MONEY DEPOSIT SHALL IN ALL OTHER INSTANCES BE RETURNED TO BUYER IN THE EVENT THAT THIS AGREEMENT IS TERMINATED OR THE TRANSACTIONS CONTEMPLATED HEREIN FAIL TO CLOSE.
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/s/ ASY
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Buyer’s initials
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Seller’s initials
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17.
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Integrated Agreement; Modifications; Waivers.
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This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes any and all prior representations, understandings and agreements, whether written or oral. No supplement, modification or waiver of any provision of this Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
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18.
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Time of Essence and Holidays.
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Time is of the essence of each and every provision hereof. If the final date of any period of time set forth herein occurs on a Saturday, Sunday or legal holiday, then in such event, the expiration of
such period of time shall be postponed to the next day which is not a Saturday, Sunday or legal holiday.
In the event that any party shall bring an action to enforce its rights under this Agreement, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’,
witness and expert fees and costs of the proceeding, including any appeal thereof. The provisions of this
Section 19
are separate and severable and shall survive a judgment on this Agreement.
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20.
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Assignment; Inurement.
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Except as provided in this
Section 20
or in
Section 34
, neither party hereto may assign its respective rights and obligations hereunder, in whole or in part, without the prior
written consent of the other party hereto (except that Seller shall have the right without the consent of Buyer to convey the Property to any partner or affiliate of Seller provided such party assumes each and all of the obligations thereafter to be
performed by Seller under this Agreement and except that Buyer shall have the right without the consent of Seller to (i) assign this Agreement to an affiliate of Buyer that is wholly owned by either Buyer or the shareholders of Buyer or
(ii) designate a nominee to take title to all or any portion of the Property at Closing that is wholly owned by either Buyer or the shareholders of Buyer). To the extent consent is required hereunder to effect an assignment of this Agreement,
any assignment without such prior written consent shall be
deemed null and void. No assignment shall limit or relieve any assignor’s obligations under the terms and conditions of this Agreement. Subject to and without limiting the preceding two
sentences, this Agreement and every provision hereof shall bind and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
This Agreement (including, without limitation, title matters and the effectiveness of any conveyance to be made pursuant hereto) shall be construed and interpreted and the rights of the parties determined
in accordance with the laws of the State of California.
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22.
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Covenants of Cooperation.
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Seller and Buyer each agree to cooperate with each other and to execute such additional documents and instruments as are reasonably acceptable to such party, including supplemental escrow instructions, as
may be reasonably required to consummate the transaction contemplated hereby.
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23.
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Headings and Captions.
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The headings and captions of the sections of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
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24.
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Condition to Effectiveness of Agreement.
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This Agreement shall not be binding or effective until properly executed and delivered by both Seller and Buyer.
As used in this Agreement, the neuter shall include the feminine and masculine, the singular shall include the plural, and the plural shall include the singular, except where expressly provided to the
contrary.
In the event that any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public
policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby.
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27.
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Counterparts; Electronic Mail and/or Facsimile Transmission.
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This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by electronic mail and/or facsimile transmission with an executed hard copy to follow via overnight courier.
All Exhibits attached to, and referenced in this Agreement are hereby incorporated into, and shall be deemed a part of this Agreement. The following Exhibits are attached hereto and incorporated herein by
this reference:
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Exhibit A
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Legal Description of the Property
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Exhibit B
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Description of Seller Work
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29.
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Joint and Several Obligations.
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If more than one (1) person or entity is included within the party designated hereinabove as Buyer, each and all of the obligations imposed upon such party under this Agreement shall be the joint and
several obligations of each of such persons or entities.
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30.
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Evidence of Due Authorization.
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Each party hereby agrees, within ten (10) days after receipt of a written request from the other party, to furnish to the other party such evidence as shall reasonably establish that the execution of
this Agreement by the party furnishing such evidence and the performance by such party of its obligations hereunder have been duly authorized and that the person or persons executing this Agreement and any document or instrument pursuant to this
Agreement has been duly authorized and empowered to do so.
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31.
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Construction and Interpretation.
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All provisions of this Agreement have been negotiated by Seller and Buyer at arm’s length and neither party shall be deemed the scrivener of this Agreement. This Agreement shall not be construed for
or against either party by reason of the authorship or alleged authorship of any provision hereof or by reason of the status of the respective parties as Seller or Buyer.
Buyer and Seller (each as the “Representing Party”) represents and warrants to the other party that the Representing Party is not and shall not become a person or entity with whom the other
party is restricted from doing business under any current or future regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including, but not limited to, those named on OFAC’s Specially
Designated and Blocked Persons list) or under any current or future statute, executive order (including, but not limited to, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism), or other governmental action and is not and shall not engage in any dealings or transaction or be otherwise associated with such persons or entities.
All persons dealing with Seller must look solely to the property and assets of Seller for the payment of any claim against Seller or for the performance of any obligation of Seller as neither the joint
venturers, general partners, limited partners, members, employees, nor agents (as
the case may be) of Seller assume any personal liability for obligations entered into on behalf of Seller (or its predecessors in interest) and their respective properties shall not be subject to
the claims of any person in respect of any such liability or obligation. As used herein, the words “property and assets of Seller” exclude any rights of Seller for the payment of capital contributions or other obligations to it by any
joint venturer, general partner, limited partner or member (as the case may be) in such capacity.
34.1.
Exchange
. Seller and Buyer (the “Cooperator”) shall each cooperate in a simultaneous or deferred exchange by permitting the other party (the “Exchanger”) to
assign its interest in this Agreement to a third party (the “Exchange Facilitator”) pursuant to an Assignment and Assumption of Real Property Purchase and Sale Agreement and Supplemental Escrow Instructions in form and content reasonably
acceptable to the parties. The assignment of such interest may take effect only simultaneously with Closing under this Agreement, and in no event shall the Exchanger be relieved of any liability under this Agreement by reason of such assignment. The
Cooperator shall not be required to bear any escrow, title or other expense in excess of those the Cooperator would bear if there were no exchange. The Cooperator shall not be required to execute any document creating personal liability or to assume
or be exposed to any liability in connection with the exchange, nor shall the Closing Date be delayed to consummate any such exchange without the written consent of both parties. In no event shall the Cooperator be required to take title to any
property and in no event shall the Cooperator be responsible for any tax consequences to Exchanger or any other party in connection with any such exchange.
34.2.
Indemnification
. Exchanger agrees and covenants to defend, indemnify, protect and hold harmless Cooperator from any liability, damage, loss, cost and expense (including reasonable
attorneys’ fees) of whatever kind and nature arising out of any such assignment or exchange, including, without limitation, any claims by or on behalf of the Exchange Facilitator. Cooperator shall have the right to approve in its reasonable
judgment any documentation Cooperator will be requested to execute in connection with the exchange transaction.
[signatures on
following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
Effective Date.
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SELLER:
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BUYER:
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KIRKHILL-TA CO.,
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ABSOLUTE SCREENPRINT, INC.,
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a California corporation
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a California corporation
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By:
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/s/ Albert S. Yost
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By:
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF BREA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 8 OF TRACT NO. 8374, IN THE CITY OF BREA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN
BOOK 340, PAGES 25
THROUGH 28
, INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT 50 PERCENT OF
ALL OIL, GAS, HYDROCARBONS AND ALL MINERALS, IN, ON OR UNDER SAID PARCELS OF LAND BUT WITH NO RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, AS RESERVED IN THE DEED FROM EVERETT N. REESE AND ELSIE B. REESE, HUSBAND AND WIFE, RECORDED
APRIL 13,
1956 IN BOOK 3472, PAGE 550
OF OFFICIAL RECORDS.
APN: 319-182-01,02
EXHIBIT B
DESCRIPTION OF SELLER WORK
1. Repair all damage caused by the removal from the Property of the rack system, silo and other machinery owned by Seller.
2. Repair of the penetrations located in certain portions of the roof and walls of the building comprising a
portion of the Property and more particularly shown in the photos attached hereto and incorporated herein (eight (8) photos in total), as follows:
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One (1) large roof penetration – If required by Buyer (which requirement shall be confirmed by Buyer in writing to Seller at least twenty (20) days prior
to the expiration of the Study Period), Seller shall engage a roofing contractor to cover this penetration using whatever materials are recommended by the roofing contractor. Buyer has indicated their intent to install a vent over this penetration
which would eliminate the need for covering this penetration.
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One (1) small roof penetration – Seller shall engage a roofing contractor to cover this penetration using whatever materials are recommended by the
roofing contractor.
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Three (3) large wall penetrations – Seller shall close these penetrations using wood, drywall and stucco.
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Nine (9) small wail penetrations (estimated 1 – 5 inches in diameter each) – Seller shall close these penetrations using newspaper, spackle and
stucco.
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EXHIBIT 10.2
FIRST AMENDMENT TO OFFICE AGREEMENT LEASE
This
First Amendment to Office Lease Agreement (this
“First Amendment”)
is made and entered into as of April 14, 2011, by and between CITY CENTER BELLEVUE PROPERTY LLC, a Delaware limited partnership
(“Landlord”),
and ESTERLINE TECHNOLOGIES CORPORATION, a Delaware corporation
(“Tenant”).
R
E
C
I
T
A
L
S
:
A. Landlord (as
successor-in-interest to WA-City Center Bellevue, L.L.C.) and Tenant are parties to that certain Office Lease Agreement, dated July 1, 2003 (the “
Lease
”), pursuant to which Landlord leases to Tenant and Tenant leases from
Landlord 17,833 rentable square feet of space (the
“Existing Premises”)
on the fifteenth
(15
th
) floor of the building located at 500
108
th
Avenue NE, Bellevue, Washington (the
“Building”).
B. The parties desire to amend the Lease on the terms
and conditions set forth in this First Amendment.
A
G
R
E
E
M
E
N
T
:
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows.
1.
Terms
. All undefined terms when used herein shall have the same
respective meanings as are given such terms in the Lease, unless expressly provided otherwise in this First Amendment.
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2.
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Premises and Building
.
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2.1
Existing Premises and Building
.
Tenant hereby acknowledges and agrees that Tenant currently occupies the Existing Premises and that Tenant shall continue to
accept the Existing Premises in its currently existing, “as is” condition, and, except as set forth in the Tenant Work Letter attached hereto as
Exhibit B
(the
“Tenant Work Letter”)
,
Landlord shall not
be obligated to provide or pay for any improvement work or services related to the improvement of the Existing Premises. Tenant also acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty regarding the
condition of the Existing Premises or Building or with respect to the suitability of the Existing Premises or Building for the conduct of Tenant’s business. Effective as of the “Existing Premises Extended Term Commencement Date,” as
that term is defined in
Section 3.2
, below, with respect to the Existing Premises, and effective as of the date hereof with respect to the “Expansion Premises,” as that term is defined in
Section 2.2
, below, the
Rentable Square Footage of the Building shall be deemed to equal 486,213.
2.2
Lease of Expansion Premises
.
Effective as of the “Expansion Premises Commencement Date,” as that term is defined in
Section 3.1
, below, the “Premises,” as that term is defined in the Lease, shall contain
approximately 23,351 rentable square feet of space in the
-1-
Building and shall consist of (a) the Existing Premises, and (b) 5,518 rentable square feet of space located on the fourteenth
(14
th
) floor of the Building and known as Suite 1450, as
set forth on
Exhibit A
,
attached hereby (the
“Expansion Premises”).
Subject to the terms of
Section 4.2
, below, the rentable and usable square footages of the Premises (including the Existing Premises and
the Expansion Premises) shall be as set forth herein and shall not be subject to remeasurement or modification. Tenant shall accept the Expansion Premises in their existing, “as is” condition and, except as specifically set forth in the
Tenant Work Letter, Landlord shall not be obligated to provide or pay for any improvement work or services related to the improvement of the Expansion Premises. Tenant also acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty regarding the condition of the Expansion Premises or with respect to the suitability of the Expansion Premises for the conduct of Tenant’s business.
2.3
Right of First Offer
.
Subject to the terms of this
Section 2.3
, Landlord hereby grants to the Tenant named in this First Amendment (the
“Original Tenant”)
or any assignee permitted pursuant to the terms of
Section XII.E
of the Office Lease (a,
“Permitted
Assignee”)
a continuing right of first offer with respect to all of the rentable square footage located on the fourteenth (14
th
) floor of the Building other than the Expansion Premises (the
“First Offer Space”
). The First
Offer Space is more particularly set forth on
Exhibit A-l
,
attached hereto. Notwithstanding the foregoing, such first offer right of Tenant shall commence only following the expiration or earlier termination of the existing
leases of the First Offer Space (including renewals of any such leases, so long as any such renewal is expressly set forth in such lease, but regardless of (i) whether any such rights are executed strictly in accordance with their terms, and
(ii) whether such renewal is consummated pursuant to a lease amendment or a new lease), and with respect to any First Offer Space which is unleased as of the date of this First Amendment, Tenant’s first offer right shall commence only
following the expiration or earlier termination of the next lease entered into by Landlord after the date hereof for such space (including any renewal of any such lease, so long as any such renewal is initially set forth in such lease, but
regardless of (a) whether any such rights are executed strictly in accordance with their terms, and (b) whether such renewal is consummated pursuant to a lease amendment or a new lease). In addition, such right of first offer shall be
subordinate to all existing rights of other tenants which rights relate to the First Offer Space and are currently set forth in leases existing as of the date hereof, including any expansion, first offer, first negotiation and other rights,
regardless of whether such rights are executed strictly in accordance with their respective terms or pursuant to a lease amendment or a new lease. All such existing tenants of the First Offer Space, all tenants that lease unleased First Offer Space
in accordance with the terms hereof, all tenants under “Intervening Leases,” as that term is defined in
Section 1.2.7
, below, and all tenants with an existing right to lease the First Offer Space are collectively referred to as
the
“Superior Right Holders”.
Tenant’s right of first offer shall be on the terms and conditions set forth in this
Section 2.3
.
2.3.1
Procedure for Offer
.
Landlord shall notify Tenant (the
“First Offer Notice”)
from time to time when the First Offer Space or any portion thereof becomes
available for lease to third parties, provided that no Superior Right Holder wishes to lease such space. Pursuant to such First Offer Notice, Landlord shall offer to lease to Tenant the then available First Offer Space. The First Offer Notice shall
describe the space so offered to Tenant and shall set forth the “First Offer Rent,” as that term is defined in
Section 2.3.3
, below, at which
-2-
Landlord is willing to lease such space to Tenant. In no event shall Landlord have the obligation to deliver a First Offer Notice (and Tenant have no right to exercise its right under this
Section
2.3
) to the extent that the “First Offer Commencement Date,” as that term is defined in
Section 2.3.5
, below, is anticipated by Landlord to occur during the last two (2) years of
the then term of the Lease, as amended.
2.3.2
Procedure for Acceptance
.
If Tenant
wishes to exercise Tenant’s right of first offer with respect to the space described in the First Offer Notice, then within ten (10) business days of delivery of the First Offer Notice to Tenant, Tenant shall deliver notice to Landlord
(the
“First Offer Exercise Notice”)
of Tenant’s election to exercise its right of first offer with respect to the entire space described in the First Offer Notice on the terms contained in such notice and this
Section 2.3
, and upon, and concurrent with, such exercise, Tenant may, at its option, object to the First Offer Rent contained in the First Offer Notice, in which case the parties shall follow the procedure, and the Option Rent shall be
determined, as set forth in
Section 2.3.8
, below. If Tenant does not timely deliver the First Offer Exercise Notice, then Landlord shall be free to lease the space described in the First Offer Notice to anyone to whom Landlord desires on
any terms Landlord desires. Notwithstanding anything to the contrary contained herein, Tenant must elect to exercise its right of first offer, if at all, with respect to all of the space offered by Landlord to Tenant at any particular time, and
Tenant may not elect to lease only a portion thereof.
2.3.3
First Offer Rent
.
The
rent payable by Tenant for the First Offer Space (the
“First Offer Rent”)
shall be equal to rent, including all escalations, at which tenants, as of the First Offer Commencement Date are leasing non-sublease, non-encumbered,
non-equity space comparable in size, location and quality to the First Offer Space for a similar lease term, which comparable space is located in the Building and in “Comparable Buildings,” as that term is defined, below
(“Comparable First Offer Transactions”),
in either event taking into consideration only the following concessions (the
“First Offer Concessions”)
:
(a) rental abatement concessions, if any, being granted
such tenants in connection with such comparable space, (b) tenant improvements or allowances provided or to be provided for such comparable space, taking into account, and deducting the value of, the existing improvements in the First Offer
Space, such value to be based upon the age, quality and layout of the improvements and the extent to which the same could be utilized by a typical general office user, and (c) any period of rental abatement, if any, granted to tenants in
comparable transactions in connection with the design, permitting and construction of tenant improvements in such comparable spaces. The First Offer Concessions shall be reduced on a proportionate basis to the extent the length of the term of
Tenant’s lease of the subject First Offer Space shall be shorter than the length of the term of the Comparable First Offer Transactions. If First Offer Concessions are granted to Tenant, Landlord may, at Landlord’s sole option, elect
either (A) to grant some or all of the First Offer Concessions to Tenant in the form as described above (i.e., as free rent or as an improvement allowance), or (B) to adjust the rental rate component of the First Offer Rent to be an
effective rental rate which takes into consideration the total dollar value of the applicable First Offer Concessions (in which case the subject First Offer Concessions evidenced in the effective rental rate shall not be granted to Tenant). Tenant
shall pay Tenant’s Pro Rata Share of Expenses and Taxes in connection with any First Offer Space leased by Tenant in accordance with the terms of the Lease, as amended hereby (i.e., on a “triple net” basis), provided that
Tenant’s Pro Rata Share with respect to the First Offer Space shall be calculated by dividing the rentable square footage
-3-
of the First Offer Space by the Rentable Square Footage of the Building. Comparable First Offer Transactions which are not “triple net” in nature shall be equitably modified (based upon
reasonable estimates of operating and taxes expenses for the subject project) in order to adjust the same to reflect a “triple net” transaction. The First Offer Rent shall additionally include a determination as to whether, and if so to
what extent, Tenant must provide Landlord with financial security, such as a letter of credit or guaranty, for Tenant’s Rent obligations with respect to the First Offer Space. Such determination shall be made by reviewing the extent of
financial security then generally being imposed in Comparable First Offer Transactions from tenants of comparable financial condition and credit history to the then existing financial condition and credit history of Tenant (with appropriate
adjustments to account for differences in the then- existing financial condition of Tenant and such other tenants). For purposes of this Fourth Amendment, the term
“Comparable Buildings”
shall mean first-class office buildings
located in the center business district of downtown Bellevue, Washington, that contain no less than 250,000 rentable square feet.
2.3.4
Construction In First Offer Space
.
Tenant shall take the First Offer Space in its “as is” condition (provided that the foregoing shall not alter or modify
Landlord’s obligation to deliver the First Offer Space in the condition set forth in the First Offer Notice, including any work required to be performed by Landlord as and to the extent provided for in Landlord’s First Offer Notice), and
the construction of improvements in the First Offer Space shall comply with the terms of
Section IX.C
of the Lease. Any tenant improvement allowance to which Tenant may be entitled for First Offer Space leased by Tenant shall be as determined
as part of the First Offer Rent.
2.3.5
Amendment to Lease
.
If Tenant timely
exercises Tenant’s right to lease the First Offer Space as set forth herein, Landlord and Tenant shall within thirty (30) days thereafter execute an amendment to the Lease for such First Offer Space upon the terms and conditions as set
forth in the First Offer Notice and this
Section 2.3
. Except as otherwise specifically provided for in this
Section 2.3
, Tenant shall lease the First Offer Space upon the terms and conditions set forth in the Lease, as
amended hereby. The rentable square footage of any First Offer Space leased by Tenant shall be calculated by Landlord pursuant to the then current Standard Method for Measuring Floor Area in Office Buildings, as promulgated by the Building Owners
and Managers Association, and any accompanying guidelines. Tenant shall commence payment of Rent for the First Offer Space, and the term of the First Offer Space shall commence upon the date of delivery of the First Offer Space to Tenant (the
“First Offer Commencement Date”)
and shall terminate concurrently with the remainder of Tenant’s Premises.
2.3.6
First Offer Spaces
.
Tenant shall have the right, but not the obligation, to rent up to two and one-half (2.5) unreserved parking spaces for every 1,000 rentable square
feet of First Offer Space leased by Tenant (the
“First Offer
Spaces
”) upon and subject to the terms of the Lease, as amended hereby, provided that, notwithstanding anything in
Section 6
of this First Amendment to
the contrary, Tenant shall pay to Landlord for such First Offer Spaces the prevailing market rate charged by landlords of Comparable Buildings for comparable parking, plus any applicable taxes. Subject to the foregoing, the First Offer Spaces shall
be “Spaces” for purposes of the Lease, as amended hereby.
-4-
2.3.7
Termination of Right of First Offer
.
The
rights contained in this
Section 2.3
shall be personal to the Original Tenant or a Permitted Assignee, as the case may be and may only be exercised by the Original Tenant or a Permitted Assignee, as the case may be, (and not any other
assignee, or any sublessee or other transferee of the Original Tenant’s interest in the Lease, as amended hereby) if the Original Tenant or a Permitted Assignee, as the case may be, occupies the entire Premises. The right of first offer granted
herein shall not terminate as to particular First Offer Space upon the failure by Tenant to exercise its right of first offer with respect to such First Offer Space as offered by Landlord and Landlord shall re-offer such space to Tenant upon the
expiration or earlier termination of the next lease entered into by Landlord following Tenant’s failure to exercise its right to lease the applicable First Offer Space (an
“Intervening Lease”),
including any renewal of such
lease, so long as any such renewal is initially set forth in such lease, but regardless of (i) whether any such renewal is exercised strictly in accordance with its terms, or (ii) whether such renewal is consummated pursuant to a lease
amendment or a new lease. Tenant shall not have the right to lease First Offer Space, as provided in this
Section 2.3
, if, as of the date of the attempted exercise of any right of first offer by Tenant, or, at Landlord’s option, as
of the scheduled date of delivery of such First Offer Space to Tenant, Tenant is in default under the Lease, as amended hereby, after the expiration of any applicable notice and cure period.
2.3.8
Determination of First Offer Rent
.
In the event Tenant timely and appropriately objects
to the First Offer Rent, Landlord and Tenant shall attempt to agree upon the First Offer Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within fifteen (15) business days following Tenant’s
objection to the First Offer Rent (the
“Outside Agreement Date”),
then each party shall make a separate determination of the First Offer Rent, as the case may be, within fifteen (15) business days, and such determinations shall
be submitted to arbitration in accordance with
Sections 2.3.8.1
through
2.3.8.7
, below.
2.3.8.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate
broker or lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial high-rise properties in downtown Bellevue, Washington. The determination of the arbitrators shall be
limited solely to the issue area of whether Landlord’s or Tenant’s submitted First Offer Rent, is the closest to the actual First Offer Rent as determined by the arbitrators, taking into account the requirements of
Section 2.3.3
of this First Amendment. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date.
2.3.8.2 The two arbitrators so appointed shall within ten (10) days of the date of the
appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two arbitrators.
2.3.8.3 The three arbitrators shall within thirty (30) days of the appointment of the third
arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted First Offer Rent, and shall notify Landlord and Tenant thereof.
2.3.8.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and
Tenant.
-5-
2.3.8.5 If either Landlord or Tenant fails to
appoint an arbitrator within fifteen (15) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding
upon Landlord and Tenant.
2.3.8.6 If the two arbitrators fail to agree upon and
appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the
provisions of the American Arbitration Association, but subject to the instruction set forth in this
Section 2.3.8
.
2.3.8.7 The cost of arbitration shall be paid by Landlord and Tenant equally.
3.1
Expansion Premises
.
The term of Tenant’s lease of the Expansion Premises shall commence upon the date (the
“Expansion Premises Commencement
Date”
) that is the earlier to occur of (i) the date Tenant commences the conduct of business in any portion of the Expansion Premises (exclusive of any early occupancy in connection with cabling or other work in order to prepare the
space for Tenant’s occupancy), and (ii) the date of the Expansion Premises are “Ready for Occupancy,” as that term is defined in
Section 5
of the Tenant Work Letter (which is anticipated to occur as of
September 1, 2011 (the
“Anticipated Expansion Premises Commencement Date”
)) and shall continue through and include September 30, 2023 (the
“New Expiration Date”
), unless the Lease, as amended by this First
Amendment, is sooner terminated or extended as provided in the Lease, as amended hereby. The term of Tenant’s lease of the Expansion Premises commencing as of the Expansion Premises Commencement Date and continuing through and including the New
Expiration Date is referred to herein as the
“Expansion Term.”
3.2
Existing Premises
.
Landlord and Tenant hereby acknowledge and agree that Tenant’s lease of the Existing Premises is schedule to expire as of September 30, 2013 (the
“Scheduled Expiration
Date”
).
Notwithstanding the foregoing, Landlord and Tenant further acknowledge and agree that the term of Tenant’s lease of the Existing Premises is hereby extended to, and shall expire concurrently with, Tenant’s lease of
the Expansion Premises on, the New Expiration Date. The term of Tenant’s lease of the Existing Premises, commencing as of October 1, 2013 (the
“Existing Premises Extended Term Commencement Date”)
and continuing through and
including the New Expiration Date is referred to herein as the
“Existing Premises Extended Term”
.
3.3
Renewal Options
.
Landlord and Tenant hereby acknowledge and agree that Tenant shall continue to have the rights to extend the term following the Extended
Expiration Date, subject to and in accordance with the terms of
Sections III
and
IV
of
Exhibit E
to the Lease. In connection with the foregoing, references in
Section III
of
Exhibit E
to the
Lease to the “Termination Date” shall be deemed to be references to the New Expiration Date. Landlord and Tenant hereby acknowledge and agree that Tenant’s renewal rights under
Sections III
and
IV
of
Exhibit
E
to the Lease shall be applicable to all (and not less than all) of the then Premises leased by Tenant.
-6-
4.1
Existing Premises Prior to Existing Premises Extended Term
.
Tenant shall continue to pay Base Rent for the Existing Premises for the period through and including
the Scheduled Expiration Date in accordance with the terms of the Lease. Notwithstanding the foregoing, provided that Tenant’s in not in default of the Lease, as amended hereby, Tenant shall not be obligated to pay the monthly Base Rent due for
the Existing Premises for each of the first six (6) full calendar months immediately following the date of the full execution and unconditional delivery of this First Amendment (the
“Existing Premises Rent Abatement
Period”
).
4.2
Existing Premises During Existing Premises
Extended Term
.
During the Existing Premises Extended Term, Tenant shall pay monthly Base Rent for the Existing Premises in the amount set forth below, which amounts shall be paid in accordance with the terms of the Lease. Notwithstanding
anything contained in the Lease, as amended hereby, to the contrary, effective as of the Existing Premises Extended Term Commencement Date, the Existing Premises shall be deemed to contain 18,561 rentable square feet of space. Accordingly, as of the
Existing Premises Extended Term Commencement Date, the Premises (comprised of the Existing Premises and the Expansion Premises) shall consist of 24,079 rentable square feet of space (which shall not be subject to re-measurement or modification).
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|
|
|
|
|
|
|
|
Period of Existing
Premises Extended Term
|
|
Monthly Installment
of Base Rent
|
|
Annual Base
Rent
per Rentable Square Foot
|
|
October 1, 2013 –
September 30, 2014
|
|
$39,442.13
|
|
$25.50
|
|
October 1, 2014 –
September 30, 2015
|
|
$40,988.88
|
|
$26.50
|
|
October 1, 2015 –
September 30, 2016
|
|
$42,535.63
|
|
$27.50
|
|
October 1, 2016 –
September 30, 2017
|
|
$44,082.38
|
|
$28.50
|
|
October 1, 2017 –
September 30, 2018
|
|
$45,629.13
|
|
$29.50
|
|
October 1, 2018 –
September 30, 2019
|
|
$47,175.88
|
|
$30.50
|
|
October 1, 2019 –
September 30, 2020
|
|
$48,722.63
|
|
$31.50
|
-7-
|
|
|
|
|
|
|
October 1, 2020 –
September 30, 2021
|
|
$50,269.38
|
|
$32.50
|
|
October 1, 2021 –
September 30, 2022
|
|
$51,816.13
|
|
$33.50
|
|
October 1, 2022 –
September 30, 2023
|
|
$53,362.88
|
|
$34.50
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4.3
Expansion Premises
.
During the Expansion Term,
Tenant shall pay monthly Base Rent for the Expansion Premises in the amount set forth below, which amounts shall be paid in accordance with the terms of the Lease.
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|
|
|
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|
|
|
Period of Expansion
Term
|
|
Monthly Installment
of Base Rent
|
|
Annual Base Rent
per Rentable Square Foot
|
|
Expansion Premises
Commencement Date –
9/30/12
|
|
$10,806.08
|
|
$23.50
|
|
10/1/12 – 9/30/13
|
|
$11,265.92
|
|
$24.50
|
|
10/1/13 – 9/30/14
|
|
$11,725.75
|
|
$25.50
|
|
10/1/14 – 9/30/15
|
|
$12,185.58
|
|
$26.50
|
|
10/1/15 – 9/30/16
|
|
$12,645.42
|
|
$27.50
|
|
10/1/16 – 9/30/17
|
|
$13,105.25
|
|
$28.50
|
|
10/1/17 – 9/30/18
|
|
$13,565.08
|
|
$29.50
|
|
10/1/18 – 9/30/19
|
|
$14,024.92
|
|
$30.50
|
|
10/1/19 – 9/30/20
|
|
$14,484.75
|
|
$31.50
|
|
10/1/20 – 9/30/21
|
|
$14,944.58
|
|
$32.50
|
|
10/1/21 – 9/30/22
|
|
$15,404.42
|
|
$33.50
|
|
10/1/22 – 9/30/23
|
|
$15,864.25
|
|
$34.50
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Notwithstanding the foregoing, Tenant shall not be obligated to pay an amount equal to $10,806.08 of the
monthly Base Rent due for the Expansion Premises for the first eight (8) months of the Expansion Term (the
“Expansion Premises Rent Abatement Period”).
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5.
Expenses and Taxes
.
5.1
Existing Premises Prior to Existing Premises Extended Term
.
Prior to the
Existing Premises Extended Term, Tenant shall continue to pay Tenant’s Pro Rata Share of Expenses and Taxes for the Existing Premises in accordance with the terms of the Lease; provided, however, that in no event shall Tenant be obligated to
pay Tenant’s Pro Rata Share of Expenses and Taxes applicable to the Existing Premises during the Existing Premises Rent Abatement Period.
5.2
Existing Premises During Existing Premises Extended Term
.
During the Existing Premises Extended Term, Tenant shall continue to pay Expenses and Taxes for the
Existing Premises in accordance with the terms of the Lease, provided that as of the Existing Premises Extended term Commencement Date, Tenant’s Pro Rata Share shall equal 3.8175%.
5.3
Expansion Premises
.
During the Expansion Term, Tenant shall to pay Expenses and
Taxes for the Expansion Premises in accordance with the terms of the Lease, provided that, with respect to the Expansion Premises, (i) in no event shall Tenant be obligated to pay Tenant’s Pro Rata Share of Expenses and Taxes during the
Expansion Premises Rent Abatement Period, and (ii) Tenant’s Pro Rata Share shall equal 1.1349%.
5.4
Other Terms
.
Effective retroactively to January 1, 2011, Landlord and
Tenant hereby acknowledge and agree that the last paragraph of
Section IV.C
of the Lease (starting with the words “In addition, for purposes of computing Tenant’s Pro Rata Share of Expenses”) is hereby deleted in its entirety
and is replaced with the following:
“In addition, for purposes of
computing Tenant’s Pro Rata Share of Expenses, ‘Controllable Expenses,’ as that term is defined, below, shall not increase by more than 3% per calendar year calculated on a compounding and cumulative basis over the course of the
Term commencing with a comparison of Controllable Expenses for the calendar year 2011 vis-à-vis Controllable Expenses for the calendar year 2010 (the ‘Reference Year’). Accordingly, Controllable Expenses for the calendar year 2011
shall not exceed 103% of Controllable Expenses for the Reference Year. By way of illustration, if Controllable Expenses for the Reference Year were $10.00 per rentable square foot, then Controllable Expenses for the calendar year 2011 shall not
exceed $10.30 per rentable square foot, and Controllable Expenses for the calendar year 2012 shall not exceed $10.609 per rentable square foot. ‘Controllable Expenses’ shall mean all Expenses exclusive of the cost of insurance, utilities
and capital improvements. In the event that Tenant shall lease the Premises during any renewal term, then the Reference Year shall become the calendar year immediately preceding the calendar year in which the subject renewal term commences.”
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6.
Parking
.
6.1
In General
.
The first sentence of
Section I.A
of
Exhibit E
to the Office Lease is hereby deleted and is replaced with the following: “During the Term, Tenant shall have the right, but not the obligation, to lease up to 45 unreserved parking spaces (the ‘Spaces’) in the Building’s
parking garage (the ‘Garage’) for the use of Tenant and its employees.” Further, all references in
Section I
of
Exhibit E
to the “Surface Spaces” or “Surface Lot” are hereby deemed to be
deleted and of no further force or effect.
6.2
Existing Premises Prior to
Existing Premises Extended Term
.
Prior to the Existing Premises Extended Term, Tenant shall continue to have the right, but not the obligation, to lease forty-five (45) unreserved Spaces in the Garage (the
“Existing Premises
Spaces”)
upon and subject to the terms of the Lease (including, without limitation, the parking rates provided in
Section I.B
of the
Exhibit E
to the Lease.
6.3
Existing Premises During Existing Premises Extended Term
.
During the
Existing Premises Extended Term, Tenant shall continue to have the right, but not the obligation, to lease the Existing Premises Spaces upon and subject to the terms of the Lease; provided, however, that during the Existing Premises Extended Term,
Tenant shall pay the parking charges for such Existing Premises Spaces at the same rates applicable from time-to-time to the “Expansion Premises Spaces,” as that term is defined in
Section 6.4
, below.
6.4
Expansion Premises; Parking Charges
.
In connection with Tenant’s
lease of the Expansion Premises, during the Expansion Term, Tenant shall have the right, but not the obligation, to lease 14 unreserved spaces in the Garage (the
“Expansion Premises Spaces”
). The Expansion Premises Spaces shall be
deemed to be “Spaces” for purposes of the Lease, provided that, notwithstanding anything contained in the Lease, as amended hereby, to the contrary, Tenant shall pay an amount (the
“Parking Charge”
) per month for each
Expansion Premises Space rented by Tenant equal to the applicable amounts set forth below:
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Period of Expansion
Term
|
|
Monthly Parking
Charge Per Space
|
|
|
|
|
Expansion Premises Commencement
Date – 9/30/13
|
|
$125.00
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|
10/1/13 – 9/30/14
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|
$170.00
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10/1/14 – 9/30/15
|
|
$180.00
|
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10/1/15 – 9/30/16
|
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$190.00
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As of October 1, 2016 and on each October 1 thereafter occurring during the Extended Term
(each, a
“Parking Adjustment Date”),
the Parking Charge shall equal the prevailing parking rate charged by Landlord at the Building; provided, however, that (i) as of the October 1, 2016 Parking Adjustment Date and on each
Parking Adjustment Date thereafter, in no event shall the
-10-
Parking Charge increase by more than five percent (5%) of the Parking Charge applicable immediately prior to the subject Parking Adjustment Date, calculated on a cumulative and compounded
basis, and (ii) in no event shall the Parking Charge be less than $190.00 for each unreserved Space per month nor more than $250.00 for each unreserved Space per month. As provided in
Section 6.2
, above, Landlord and Tenant hereby
acknowledge and agree that the Parking Charges set forth in this
Section 6.2
shall be applicable to the Existing Premises Spaces as of the Existing Premises Extended Term Commencement Date (e.g., as of October 1, 2013, Tenant shall
pay $170.00 per month for each Existing Premises Space rented by Tenant). In addition to the Parking Charge, Tenant shall be responsible for all taxes associated with Tenant’s Spaces. Notwithstanding anything contained herein to the contrary,
during the Renewal Term and the Second Renewal Term, as applicable, Tenant shall pay the prevailing parking rate charged by Landlord from time to time at the Building, plus any applicable taxes (except to the extent otherwise agreed upon in writing
by Landlord and Tenant (in each parties’ sole discretion)).
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6.5
Other Terms
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Subject to the maximum number of Spaces to which Tenant is entitled pursuant to
the terms of the Lease, as amended hereby, Tenant may increase or decrease the number of Spaces rented by Tenant upon not less than thirty (30) days notice to Landlord.
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7.
Normal Business Hours
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Section I.P
of the Lease is hereby
deleted in its entirety and is replaced with the following:
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‘“Normal Business Hours’ for the Building are 6:00 a.m. to 7:00 p.m. on Business Days, and 8:00 a.m. to 1:00 p.m. on
Saturdays”
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8.
Insurance
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Section XV
of the Lease is hereby deleted in its
entirety and is replaced with the following:
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“15.1
In General
. Tenant shall maintain the following coverages in the following
amounts.
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15.1.1
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Commercial General Liability Insurance on an occurrence form covering the insured against claims of bodily injury, personal injury and property
damage (including loss of use thereof) arising out of Tenant’s operations and contractual liabilities including a Broad Form Vendor’s Additional Insured endorsement and including products and completed operations coverage, for limits of
liability on a per location basis of not less than:
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Bodily Injury and
Property Damage Liability
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$5,000,000 each occurrence
$5,000,000 annual aggregate
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Personal Injury Liability
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$5,000,000 each occurrence
$5,000,000 annual aggregate
0% Insured’s
participation
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-11-
The provisions of
Section XVI
shall specifically be applicable to
the Leasehold Improvements.
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15.1.2
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Physical Damage Insurance covering (i) all office furniture, business and trade fixtures, office equipment, free-standing cabinet work, movable
partitions, merchandise and all other items of Tenant’s property on the Premises installed by, for, or at the expense of Tenant, and (ii) all Leasehold Improvements. Such insurance shall be written on an “all risks” of physical
loss or damage basis, for the full replacement cost value (subject to reasonable deductible amounts) new without deduction for depreciation of the covered items and in amounts that meet any co- insurance clauses of the policies of insurance and
shall include coverage for damage or other loss caused by fire or other peril including, but not limited to, vandalism and malicious mischief, theft, water damage of any type, including sprinkler leakage, bursting or stoppage of pipes, and
explosion, and providing business interruption coverage for a period of one year.
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15.1.3
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Worker’s Compensation and Employer’s Liability or other similar insurance pursuant to all applicable state and local statutes and
regulations.
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15.2
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Form of Policies
. The minimum limits of policies of insurance required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, and any other party the Landlord so specifies, as an additional insured, including Landlord’s managing agent, if any; (ii) provide contractual liability coverage in
standard form, subject to exceptions and exclusions set forth in such standard form; (iii) be issued by an insurance company having a rating of not less than A-:X in Best’s Insurance Guide or which is otherwise acceptable to Landlord and
licensed to do business in the State of Washington; (iv) be primary and noncontributory insurance as to all claims thereunder and provide that any insurance carried by Landlord is excess and is non-contributing with any insurance requirement of
Tenant; and (v) provide that said insurance shall not be canceled unless thirty (30) days’ prior written notice (or ten (10) business days in the case of non- payment of premium) shall have been given to Landlord and any
mortgagee of Landlord. Tenant shall deliver said policy or policies or certificates thereof to Landlord on or before the Commencement Date and at least ten (10) business days before the expiration dates thereof. In the event Tenant shall fail
to procure such insurance, or to deliver such policies or certificate, Landlord may, at its option, procure such policies for the account of Tenant, and the cost thereof shall be paid to Landlord within five (5) days after delivery to Tenant of
bills therefor.
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-12-
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15.3
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Casualty/Assignment of Leasehold Improvement Proceeds
. Upon the occurrence of any damage to the Premises, upon notice from Landlord, Tenant
shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds payable to Tenant under Tenant’s insurance required under
Section 15.1.2(ii)
of this Lease, and Landlord shall repair any injury or damage to
the Leasehold Improvements installed in the Premises and shall return such Leasehold Improvements to their original condition; provided that (i) Tenant shall be permitted to promptly request commercially reasonable changes to the Leasehold
Improvements (subject to Landlord’s approval, which shall not be unreasonably withheld) to the extent required in order that the insurance proceeds under
Section 15.1.2(ii)
(assuming Tenant carried such insurance as is required
hereunder) shall be sufficient to cover the cost of the repairs to and/or restoration of the Leasehold Improvements, and (ii) if the reasonable cost of such repair of the Leasehold Improvements (as and to the extent modified by Tenant under
item (i), above) by Landlord exceeds the amount of insurance proceeds received by Landlord from Tenant’s insurance carrier, as assigned by Tenant, the cost of such repairs shall be paid by Tenant to Landlord prior to Landlord’s
commencement of repair of the damage.”
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9.
Required
Removables
. Landlord and Tenant hereby acknowledge and agree that, notwithstanding anything contained in the Lease to the contrary, except to the extent otherwise notified by Landlord in writing, Tenant shall at Tenant’s sole cost and
expense, prior to the expiration or earlier termination of the Lease, as amended hereby, (i) removal all cabling exclusively serving the Premises (whether located inside or outside the Premises), and (ii) remove any internal stairwell
constructed under the Lease, as amended hereby, and restore the floor/ceiling (including, without limitation, structural elements) where the stairwell previously existed. In connection with the foregoing, Tenant further acknowledges and agrees that
Tenant, at Tenant’s sole cost and expense, shall (a) repair all damage caused by any removal required under this
Section 9,
and (b) restore all areas affected by any removal required under this
Section 9
to a
Building standard tenant improved condition. Tenant hereby acknowledges and agrees that all work performed by Tenant hereunder shall be performed by Tenant subject to and in accordance with the term of
Section IX.C
of the Lease. Without
limitation of the foregoing, all plans and specifications relating to the stairwell removal and floor/ceiling restoration shall be subject to Landlord’s approval, which approval shall not be unreasonably withheld, conditioned or delayed.
-13-
10.
Notices
. Notwithstanding anything
to the contrary set forth in the Lease, effective as of the date of this First Amendment, any notices to Landlord must be sent, transmitted, or delivered, as the case may be, to the following addresses:
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c/o Beacon Capital Partners, LLC
11755 Wilshire Boulevard
Suite 1770
Los Angeles, California 90025
Attention: Mr. Jeremy B. Fletcher
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And
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c/o Beacon Capital Partners, LLC
200 State Street, 5
th
Floor
Boston, Massachusetts 02109
Attention: General Counsel
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And
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Allen Matkins Leck Gamble Mallory & Natsis LLP
1901 Avenue of the Stars
Suite 1800
Los Angeles, California 90067
Attention: Anton N. Natsis, Esq.
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11.
Brokers
. Landlord and Tenant hereby warrant to
each other that they have had no dealings with any real estate broker or agent in connection with the negotiation of this First Amendment other than The Broderick Group and Pacific Real Estate Partners (“
Brokers
”) and that they know
of no other real estate broker or agent who is entitled to a commission in connection with this First Amendment. Each party agrees to indemnify and defend the other party against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including, without limitation, reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of the indemnifying
party’s dealings with any real estate broker or agent other than Brokers. The terms of this
Section 11
shall survive the expiration or earlier termination of the Lease, as hereby amended.
12.
No Further Modification
.
Except as specifically set forth in this First
Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect. In the event of any conflict between the terms and conditions of the Lease and the terms and conditions of this First Amendment, the terms
and conditions of this First Amendment shall prevail.
13.
Counterparts
.
This First Amendment may be executed in multiple counterparts and each counterpart, when fully executed and delivered, shall constitute an original instrument and all such multiple
counterparts shall constitute but one and the same instrument.
-14-
IN WITNESS WHEREOF, this First Amendment has been executed as of the day and
year first above written.
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“LANDLORD”
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“TENANT”
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CITY CENTER BELLEVUE PROPERTY
LLC, a Delaware limited partnership
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ESTERLINE TECHNOLOGIES
CORPORATION, a Delaware corporation
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By:
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/s/ Michael Bruckner
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By:
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/s/ Robert D. George
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Michael Bruckner
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Its:
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VP, CFO
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Managing Director
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By:
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Its:
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-15-
NOTARY PAGE
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STATE OF
Washington
)
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) ss.
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COUNTY OF
King
)
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I certify that I know or have satisfactory evidence that
Robert D. George
is the
person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
VP, CFO
of ESTERLINE TECHNOLOGIES
CORPORATION, a Delaware corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
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Dated:
04/22/2011
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/s/ Debra H. Rynhoud
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(Signature)
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(Seal or stamp)
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Title:
EXEC. ASSISTANT TO CEO & CFO
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Notary Public in and for the State of
Washington
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My appointment expires:
11/21/2012
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STATE OF
)
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) ss.
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COUNTY OF
)
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I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that
(he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
of ESTERLINE TECHNOLOGIES CORPORATION, a Delaware corporation, to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument.
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Dated:
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(Signature)
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(Seal or stamp)
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Title:
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Notary Public in and for the State of
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My appointment expires:
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-1-
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State of California
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}
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County of
Los Angeles
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On
April 28, 2011
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before me,
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Elicia A. Hauschild, Notary Public
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Date
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Here Insert Name and Title of the Officer
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personally appeared
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Michael
Bruckner
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Name(s) of Signer(s)
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who proved to me on the basis of satisfactory evidence to be the person (s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
I certify
under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
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WITNESS my hand and official seal.
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Place Notary Seal Above
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Signature
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/s/ Elicia A. Hauschild
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Signature of Notary Public
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EXHIBIT B
TENANT WORK LETTER
For purposes of this Tenant Work Letter, the “Premises” shall be deemed to mean, collectively, the Existing Premises and the Expansion Premises. This Tenant Work Letter shall set forth the terms
and conditions relating to the construction of the tenant improvements in the Premises. This Tenant Work Letter is essentially organized chronologically and addresses the issues of the construction of the Premises, in sequence, as such issues will
arise during the actual construction of the Premises.
SECTION 1
LANDLORD’S INITIAL CONSTRUCTION IN THE PREMISES
1.1
Base, Shell and Core of the Premises as Constructed by Landlord
. Landlord has
constructed, at its sole cost and expense, the base, shell, and core (i) of the Premises and (ii) of the floor of the Building on which the Premises is located (collectively, the “Base, Shell, and Core”). The Base, Shell and Core
shall consist of those portions of the Premises which were in existence prior to the construction of the tenant improvements in the Premises.
1.2
Landlord Work
. Landlord shall cause the construction or installation of a Building standard demising wall (with dry wall ready for finish on the Premises side) and any
required corridor work in order that the Expansion Premises shall be separately demised from the remainder of the space located on the floor on which the Premises are located (collectively, the “Landlord Work”). Tenant may not change or
alter the Landlord Work.
SECTION 2
TENANT IMPROVEMENTS
2.1
Tenant Improvement Allowance
. Tenant shall be entitled to a one-time tenant improvement allowance (the “Tenant Improvement Allowance”) in the amount of $842,765.00 for the costs relating to the initial design and construction of
Tenant’s improvements which are permanently affixed to the Premises (the “Tenant Improvements”). In no event shall Landlord be obligated to make disbursements pursuant to this Tenant Work Letter in a total amount which exceeds the
Tenant Improvement Allowance. All Tenant Improvements for which the Tenant Improvement Allowance has been made available shall be deemed Landlord’s property under the terms of the Lease.
2.2
Disbursement of the Tenant Improvement Allowance
. Except as otherwise set forth in
this Tenant Work Letter, the Tenant Improvement Allowance shall be disbursed by Landlord (each of which disbursements shall be made pursuant to Landlord’s disbursement process) for costs related to the construction of the Tenant Improvements
and for the following items and costs (collectively, the “Tenant Improvement Allowance Items”): (i) payment of the fees of the “Architect”, as that term is defined in
Section 3.1
of this Tenant Work Letter, and
payment of the fees incurred by, and the cost of documents and materials supplied by, Landlord
EXHIBIT B
-1-
and Landlord’s consultants in connection with the preparation and review of the “Construction Drawings,” as that term is defined in
Section 3.1
of this Tenant Work
Letter, including, without limitation, the “Systems Plans,” as that term is defined in
Section 3.4.2
of this Tenant Work Letter, (ii) payment of out-of-pocket costs incurred by Tenant for consultants in connection with the
supervision of the Tenant Improvements (including, without limitation, supervision fees), (iii) costs incurred in obtaining any permits required in connection with the Tenant Improvements, (iv) the cost of any changes in the Base, Shell
and Core when such changes are required by the Construction Drawings; (v) the cost of any changes to the Construction Drawings or Tenant Improvements required by all applicable building codes (the “Code”); (vi) fifty percent
(50%) of the cost to construct the demising wall described in
Section 1.2
, above; and (vii) the “Landlord Supervision Fee”, as that term is defined in
Section 4.3.2
of this Tenant Work Letter.
2.3
Standard Tenant Improvement Package
. Landlord has established specifications (the
“Specifications”) for the Building standard components to be used in the construction of the Tenant Improvements in the Premises (collectively, the “Standard Improvement Package”), which Specifications shall be supplied to Tenant
by Landlord. The quality of Tenant Improvements shall be equal to or of greater quality than the quality of the Specifications, provided that Landlord may, at Landlord’s option, require the Tenant Improvements to comply with certain
Specifications.
2.4
Unused Tenant Improvement Allowance
. Following completion
of the Tenant Improvements, upon notice from Tenant to Landlord (the “Election Notice”) delivered prior to the date (the “Outside Date”) that is one (1) year following the Expansion Premises Commencement Date, Tenant shall
be entitled to utilize any unused portion of the Tenant Improvement Allowance (but in no event in excess of $120,395.00) (the “Available Unused Allowance”) at Tenant’s option, either (i) for costs incurred for the purchase and
installation of furniture, fixtures and equipment (including cabling) for the Premises, (ii) for moving costs incurred in moving into the Expansion Premises, and/or (iii) as a credit against the Base Rent due for the Premises. Tenant shall
be permitted to choose any combination of items (i), (ii) and/or (iii), above, provided that in no event shall the aggregate of any reimbursement under this
Section 2.4
and any Base Rent credit under this
Section 2.4
exceed the Available Unused Allowance, and provided further that in no event shall the aggregate of Landlord’s disbursements under this Tenant Work Letter (whether under this Section 2.4 or in connection with the Tenant Improvements) and
any Base Rent credit exceed the Tenant Improvement Allowance. Any portion of the Tenant Improvement Allowance utilized by Tenant for the costs described in item (i) or (ii), above, shall be disbursed by Landlord within thirty (30) days
following Landlord’s receipt of invoices marked as paid, and/or other documentation reasonably satisfactory to Landlord, evidencing such costs and Tenant’s payment thereof (which shall be delivered concurrently with Tenant’s delivery
of the Election Notice), and any portion of the Tenant Improvement Allowance utilized by Tenant as a Base Rent credit shall be applied to the next Base Rent due under the Lease, as amended hereby (but in no event shall any Base Rent credit due
Tenant hereunder be applied prior to the Expansion Premises Commencement Date). If Tenant fails to deliver an Election Notice (and any required associated documentation) with respect to any Available Unused Allowance or if the Tenant Improvement
Allowance otherwise remains unused as of the Outside Date, any such unused portions of the Tenant Improvement Allowance shall revert to and become the sole property of Landlord, and Tenant shall have no further rights thereto.
EXHIBIT B
-2-
SECTION 3
CONSTRUCTION DRAWINGS
3.1
Selection of Architect/Construction Drawings
. Tenant shall retain the architect/space planner reasonably approved by Landlord (the “Architect”) to prepare
certain “Construction Drawings,” as that term is defined in this
Section 3.1
, as provided for in this Tenant Work Letter. The plans and drawings to be prepared by Architect hereunder, which shall be deemed to include, without
limitation, the “Final Space Plan,” as that term is defined in
Section 3.2
, below, the “Final Working Drawings,” as that term is defined in
Section 3.3
of this Tenant Work Letter, along with the Systems
Plans, shall collectively be known collectively as the “Construction Drawings.” All Construction Drawings shall be in a commercially reasonable drawing format, and shall be subject to Landlord’s approval (which shall not be
unreasonably withheld, conditioned or delayed). In the event that Landlord shall disapprove of any Construction Drawings, Landlord shall, in its notice of disapproval, provide Tenant with a reasonably detailed description as to the basis for
Landlord’s disapproval. Tenant and Architect shall verify, in the field, the dimensions and conditions as shown on the relevant portions of the base Building plans, and Tenant and Architect shall be solely responsible for the same, and Landlord
shall have no responsibility in connection therewith. Landlord’s review of the Construction Drawings as set forth in this
Section 3
, shall be for its sole purpose and shall not imply Landlord’s review of the same, or obligate
Landlord to review the same, for quality, design, Code compliance or other like matters. Further, notwithstanding that any Construction Drawings are reviewed and/or prepared by Landlord or its space planner, architect, engineers and consultants,
and/or by Contractor or the “Subcontractors”, as that term is defined in Section 3.4.2, below, as the case may be, and notwithstanding any advice or assistance which may be rendered to Tenant by Landlord or Landlord’s space
planner, architect, engineers, and consultants and/or by Contractor or the Subcontractors, as the case may be, Landlord shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions or errors contained in
the Construction Drawings.
3.2
Final Space Plan
. On or before the date set
forth in
Schedule 1
, attached hereto, Tenant and the Architect shall prepare the final space plan for Tenant Improvements in the Premises (collectively, the “Final Space Plan”), which Final Space Plan shall include a layout and
designation of all offices, rooms and other partitioning, their intended use, and equipment to be contained therein, and shall deliver the Final Space Plan to Landlord for Landlord’s approval.
3.3
Final Working Drawings
. On or before the date set forth in
Schedule 1
, Tenant
and the Architect shall complete (i) the final architectural working drawings in a form which is complete to allow subcontractors to bid on the work and to obtain all applicable permits, and (ii) a detailed description of any overstandard
requirements of Tenant in connection with the structural, mechanical, electrical, plumbing, HVAC, life safety and sprinkler components of the Tenant Improvements (the “Systems Requirements”) (collectively, the “Final Working
Drawings”) and shall submit the same to Landlord for Landlord’s approval.
3.4
Permits; Systems Permits: C of O; Change Orders
. The Final Working Drawings shall be
approved by Landlord (the “Approved Working Drawings”) prior to the commencement of the construction of the Tenant Improvements.
EXHIBIT B
-3-
3.4.1
Permits
. Landlord shall be responsible
for obtaining applicable building permits in connection with the construction of the Tenant Improvements (the “Permits”), provided that to the extent that Landlord shall be unable to obtain or is delayed in obtaining the Permits due to the
design of the Tenant Improvements, as set forth in the Approved Working Drawings, including, without limitation, due to the failure of the Approved Working Drawings, or the improvements set forth therein, to comply with applicable governmental laws,
rules, regulations or requirements (in any event, a “Tenant Caused Permit Failure”), such delay shall be considered a “Tenant Delay,” as that term is defined in
Section 5.2
of this Tenant Work Letter, subject to the
terms of
Sections 5.2
and
5.3
of this Tenant Work Letter. Tenant shall cooperate with all Landlord requests in connection with Landlord’s obtaining of the Permits and/or matters affecting Landlord’s ability to obtain the
Permits.
3.4.2
Systems Plans; Systems Permits
. Landlord shall cause
“Contractor,” as that term is defined in Section 4.1, below, and/or the subcontractors retained in connection with the Tenant Improvements (the “Subcontractors”) to prepare structural, mechanical, electrical, plumbing, HVAC,
life safety and sprinkler system plans as reasonably required in connection with the Tenant Improvements (collectively, the “Systems Plans”). Tenant shall cooperate in good faith with Landlord, Contractor and/or the Subcontractors, as
applicable, to supply such information as is necessary to allow the Systems Plans to be prepared in a form acceptable to Landlord and which is complete to obtain all applicable permits and in a manner that is consistent with, and is a logical
extension of, the Approved Working Drawings (as reasonably determined by Landlord). In connection with the foregoing, Tenant shall provide Landlord, Contractor and/or the Subcontractors with any information reasonably required or requested by
Landlord, Contractor and/or the Subcontractors in connection with the preparation of the Systems Plans within three (3) business days following request by Landlord, Contractor and/or the Subcontractors, as the case may be. Tenant shall approve
the Systems Plans, in Tenant’s reasonable discretion, within three (3) business days following delivery thereof by Landlord to Tenant. Following receipt of such approval, Landlord shall be responsible for obtaining governmental permits
required in connection with the Systems Plans, provided that to the extent any governmental permit required for the Systems Plans shall not be issued or shall be delayed in being issued as a result of the design of the Tenant Improvements, as set
forth in the Approved Working Drawings, and/or due to the specific Systems Requirements of Tenant (as opposed to the Systems Requirements of a typical general office user for typical general office tenant improvements), and/or due to any other act
or omission of Tenant (including, without limitation, any changes requested by Tenant to the Systems Plans), then the same shall constitute a Tenant Delay, subject to the terms of
Sections 5.2
and
5.3
of this Tenant Work Letter (a
“Tenant Caused Systems Permit Failure”).
3.4.3
Certificate of
Occupancy
. Landlord shall be responsible for obtaining a certificate of occupancy, temporary certificate of occupancy, or its legal equivalent, for the Premises (in any event, a “C of O”), provided that to the extent that Landlord
causes the construction of the Tenant Improvements to be completed in accordance with the Approved Working Drawings and the Systems Plans and shall not be able to or is delayed in obtaining a C of O as a result of the design of the Tenant
Improvements, as set forth in the Approved Working Drawings, or the specific Systems Requirements of Tenant (as opposed to the Systems Requirements of a typical general office user for typical general office tenant improvements), the same shall
constitute a Tenant Delay, subject to the terms of
Sections 5.2
and
5.3
of this Tenant
EXHIBIT B
-4-
Work Letter (a “Tenant Caused C of O Failure”). Tenant shall cooperate with all Landlord requests in connection with Landlord’s obtaining of a C of O and/or matters affecting
Landlord’s ability to obtain a C of O.
3.4.4
Change Orders
. No material
changes, modifications or alterations in the Approved Working Drawings and/or the Systems Plans may be made without the prior written consent of Landlord and Tenant, which shall not be unreasonably withheld, conditioned or delayed, provided that any
delays resulting from any changes by Tenant hereunder shall be deemed to be a Tenant Delay, subject to the terms of
Sections 5.2
and
5.3
of this Tenant Work Letter.
3.5
Time Deadlines
. Landlord and Tenant shall use its good faith efforts and reasonable
due diligence to cooperate with the Architect, Contractor, the Subcontractors, and each other to complete all phases of the Construction Drawings (including, without limitation, the Systems Plans) and the permitting process and to receive all
permits, and with Contractor to obtain the “Contract Cost,” as that term is defined in
Section 4.2
of this Tenant Work Letter, as soon as practical after the execution of the Lease, and, in that regard, shall meet with Landlord
on a scheduled basis to be determined by Landlord, to discuss Tenant’s progress in connection with the same. The applicable dates for approval of items, plans and drawings as described in this
Section 3
,
Section 4
,
below, and in this Tenant Work Letter are set forth and further elaborated upon in
Schedule 1
(the “Time Deadlines”), attached hereto. Tenant agrees to comply with the Time Deadlines. Notwithstanding the foregoing, Tenant’s
failure to comply with the Time Deadlines shall not be a default by Tenant of the Lease, as amended hereby, but shall be a Tenant Delay, subject to the terms of
Sections 5.2
and
5.3
of this Tenant Work Letter.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1
Contractor
. A contractor selected pursuant to the terms of this
Section 4
(“Contractor”) shall construct the Tenant Improvements.
4.2
Competitive
Bidding
. The Contractor shall be selected pursuant to a competitive bidding process. Landlord shall select no less than three (3) contractors (from the list set forth on
Schedule 2
, attached hereto) to participate in the
process. Each such contractor shall be notified in the bidding package of the time schedule for construction of the Tenant Improvements and that, unless Landlord otherwise requires, such contractors shall be required to use the fire, lifesafety
and/or certain other subcontractors designated by Landlord. The bids shall be submitted promptly to Landlord and a reconciliation shall be performed by Landlord to adjust inconsistent or incorrect assumptions so that a like-kind comparison can be
made. To the extent that one or more of the bidding contractors shall not commit to Landlord’s commercially reasonable timing requirements, Landlord shall cause additional contractors set forth on
Schedule 2
to this Tenant Work Letter
(or otherwise reasonably agreed upon by Landlord and Tenant) to bid in accordance with the terms of this Section 4.2, in order that Landlord shall have not less than three (3) bids to provide to Tenant pursuant to the terms hereof (the
“Qualified Bids”). Landlord shall deliver to Tenant not less than three (3) Qualified Bids and shall provide Tenant with Landlord’s recommendations (if any) with respect thereto. Within five (5) business
EXHIBIT B
-5-
days following receipt of the Qualified Bids from Landlord, Tenant shall select the Qualified Bid (which need not be the low bid) pursuant to which Landlord shall construct the Tenant
Improvements. The date of selection of such contractor shall be known hereafter as the “Selection Date” and the cost of all Tenant Improvement Allowance Items to be incurred by Tenant in connection with the construction of the Tenant
Improvements shall be referred to herein as the “Contract Cost.”
4.3
Construction of Tenant Improvements by Contractor under the Supervision of Landlord
.
4.3.1
Over-Allowance Amount
. For purposes of this Lease, the “Over- Allowance
Amount” shall equal the difference between (i) the amount of the Contract Cost and (ii) the amount of the Tenant Improvement Allowance. Tenant shall pay, immediately upon written notice from Landlord, a percentage of each amount due
from Landlord to the Contractor or otherwise disbursed under this Tenant Work Letter, which percentage shall be equal to the amount of the Over-Allowance Amount divided by the amount of the Contract Cost, and such payment by Tenant shall be a
condition to Landlord’s obligation to pay any amounts of the Tenant Improvement Allowance. In the event that, following the Selection Date, the cost relating to the design and construction of the Tenant Improvements shall change, any additional
costs over the Tenant Improvement Allowance shall be added to the Over-Allowance Amount and Tenant shall be responsible therefor and shall pay for the same as Landlord disburses any then remaining Tenant Improvement Allowance in a pro rata manner
consistent with the terms hereof. In no event shall Landlord be obligated to disburse an amount in excess of the Tenant Improvement Allowance pursuant to the terms of this Tenant Work Letter.
4.3.2
Landlord’s Retention of Contractor
. Landlord shall independently retain
Contractor, on behalf of Tenant, to construct the Tenant Improvements in accordance with the Approved Working Drawings and Landlord shall supervise the construction by Contractor, and Tenant shall pay a construction supervision and management fee
(the “Landlord Supervision Fee”) to Landlord in an amount equal to the product of (i) two percent (2%) and (ii) an amount equal to the Tenant Improvement Allowance plus the Over-Allowance Amount (as such Over- Allowance
Amount may increase pursuant to the terms of this Tenant Work Letter).
4.3.3
Contractor’s Warranties and Guaranties
. Landlord shall cause Landlord’s contract with Contractor to include commercially reasonable, assignable warranties and guaranties (the “Contractor Warranties”). In connection with
the foregoing, Landlord hereby assigns to Tenant all Contractor Warranties relating to the Tenant Improvements, and Tenant hereby waives all claims against Landlord relating to, or arising out of the construction of, the Tenant Improvements.
Landlord shall cause the Contractor to indemnify, defend, protect, and hold harmless Tenant from any and all loss, cost, damage, expense and liability (including, without limitation, reasonable attorneys’ fees) incurred in connection with any
personal injury and/or property damage caused by Contractor’s negligence or willful misconduct in connection with the construction of the Tenant Improvements, provided that in the event that Landlord shall fail to obtain such indemnity in
Landlord’s contract with Contractor, Landlord shall not be in default of this Tenant Work Letter, but Landlord shall in such instance indemnify, defend, protect, and hold harmless Tenant from any and all loss, cost, damage, expense and
liability (including, without limitation, reasonable attorneys’ fees) incurred in connection with any personal injury and/or property damage caused by Contractor’s negligence or willful misconduct in connection with the construction of the
Tenant Improvements.
EXHIBIT B
-6-
4.4
Tenant’s Covenants
. Immediately
after the substantial completion of the Tenant Improvements, Tenant shall have prepared and delivered to the Building a copy of the “as built” plans and specifications (including all working drawings) for the Tenant Improvements.
SECTION 5
COMPLETION OF THE TENANT IMPROVEMENTS;
EXPANSION PREMISES
COMMENCEMENT DATE
5.1
Ready for Occupancy
. The Expansion Premises
shall be deemed “Ready for Occupancy” upon the Substantial Completion of the Expansion Premises. For purposes of this First Amendment, “Substantial Completion” of the Expansion Premises shall occur upon the completion of
construction of the Tenant Improvements in the Expansion Premises pursuant to the Approved Working Drawings and the Systems Plans, with the exception of any punch list items and any tenant fixtures, work-stations, built-in furniture, or equipment to
be installed by Tenant or under the supervision of Contractor, and receipt of a C of O (subject to the terms of
Section 5.2,
below).
5.2
Delay of the Substantial Completion of the
Expansion
Premises
. Except as provided in this
Section 5.2
, the Expansion Premises Commencement Date shall
occur as set forth in this First Amendment and
Section 5.1
, above. Subject to the terms of
Section 5.3
, below, if there shall be a delay or there are delays in the Substantial Completion of the Expansion Premises to the
extent resulting from:
5.2.1 Tenant’s failure to comply with the Time Deadlines;
5.2.2 Tenant’s failure to timely approve any matter requiring Tenant’s
approval;
5.2.3 A breach by Tenant of the terms of this Tenant Work Letter or the
Lease, as amended;
5.2.4 Changes in any of the Construction Drawings after
disapproval of the same by Landlord or because the same do not comply with Code or other applicable laws;
5.2.5 Tenant’s request for changes in the Approved Working Drawings or the Systems Plans;
5.2.6 Tenant’s requirement for materials, components, finishes or improvements
which are not available in a commercially reasonable time given the anticipated date of Substantial Completion of the Expansion Premises, as set forth in this First Amendment;
5.2.7 Changes to the Base, Shell and Core required by the Approved Working Drawings;
EXHIBIT B
-7-
5.2.8 Any Tenant Caused Permit Failure, any Tenant
Caused Systems Permit Failure and/or any Tenant Caused C of O Failure; or
5.2.9 Any
other acts or omissions of Tenant, or its agents, or employees;
(each, a “Tenant Delay”) then, notwithstanding
anything to the contrary set forth in the First Amendment or this Tenant Work Letter and regardless of the actual date of the Substantial Completion of the Expansion Premises, the date of Substantial Completion of the Expansion Premises shall be
deemed to be the date the Substantial Completion of the Expansion Premises would have occurred if no Tenant delay or delays, as set forth above, had occurred.
5.3
Tenant Delay Limitations
. Notwithstanding anything in
Section 5.2
, above, to the contrary, (i) in no event shall a Tenant Delay be deemed to have
commenced until such time as Landlord shall have delivered to Tenant notice of the circumstance which is the basis for Tenant Delay, (ii) Landlord shall use commercially reasonable efforts, as and to the extent the same shall then exist, to
mitigate the effects of any Tenant Delay, (iii) in no event shall any Tenant Delay be deemed to have occurred to the extent that, notwithstanding such delay, Landlord causes the Substantial Completion of the Expansion Premises to occur on or
before the Anticipated Expansion Premises Commencement Date, and (iv) the first ten (10) days of Tenant Delay, in the aggregate, shall not serve to alter or modify the Expansion Premises Commencement Date.
SECTION 6
MISCELLANEOUS
6.1
Tenant’s Entry Into the Expansion Premises Prior to Substantial Completion
. Provided that Tenant and its agents do not interfere with Contractor’s work in the Building and the Expansion Premises, Contractor shall allow Tenant access
to the Expansion Premises not less than fifteen (15) days prior to the Substantial Completion of the Expansion Premises for the purpose of Tenant installing equipment or fixtures (including Tenant’s data and telephone equipment) in the
Expansion Premises. Prior to Tenant’s entry into the Expansion Premises as permitted by the terms of this
Section 6.1
, Tenant shall submit a schedule to Landlord and Contractor, for their reasonable approval, which schedule shall
detail the timing and purpose of Tenant’s entry. In the event that Landlord shall require Tenant to delay any Tenant requested entry into the Expansion Premises pursuant to the terms of this
Section 6.1
during the 15-day period
immediately prior to the Substantial Completion of the Expansion Premises (and Landlord has not provided Tenant access to the Expansion Premises prior to such 15-day period for the purposes provided hereunder such that Tenant had access to the
Expansion Premises for the purposes provided hereunder for an aggregate of 15 days), then Landlord hereby agrees that the Substantial Completion of the Expansion Premises shall be deemed to be delayed until such time as Landlord shall have provided
Tenant access to the Expansion Premises pursuant to the terms hereof for an aggregate period of not less than fifteen (15) days. Tenant shall hold Landlord harmless from and indemnify, protect and defend Landlord against any loss or damage to
the Building or Expansion Premises and against injury to any persons caused by Tenant’s actions pursuant to this
Section 6.1
.
EXHIBIT B
-8-
6.2
Freight Elevators
. Landlord shall,
consistent with its obligations to other tenants of the Building, make the freight elevator reasonably available to Tenant in connection with initial decorating, furnishing and moving into the Expansion Premises.
6.3
Tenant’s Representative
. Tenant has designated Mr. Bob George as its sole
representative with respect to the matters set forth in this Tenant Work Letter, who, until further notice to Landlord, shall have full authority and responsibility to act on behalf of the Tenant as required in this Tenant Work Letter.
6.4
Landlord’s Representative
. Landlord has designated Mr. Chris Broadgate as
its sole representative with respect to the matters set forth in this Tenant Work Letter, who, until further notice to Tenant, shall have full authority and responsibility to act on behalf of the Landlord as required in this Tenant Work Letter.
6.5
Labor Harmony
. Upon reasonable notice from Landlord, shall cease using
contractors, services, workmen, labor, materials or equipment (collectively, “Tenant Agents”) that, in Landlord’s reasonable judgment, would disturb labor harmony with the workforce or trades engaged in performing other work, labor or
services in or about the Building. Subject to Tenant’s compliance with the foregoing requirements, Tenant shall not be in Tenant Delay hereunder solely as a result of Tenant’s use of non-union Tenant Agents.
6.6
Tenant’s Lease Default
. Notwithstanding any provision to the contrary contained
in the Lease, as amended hereby, if an event of default as described in the Lease, as amended hereby, or a default by Tenant under this Tenant Work Letter, has occurred at any time on or before the substantial completion of the Tenant Improvements,
then in addition to all other rights and remedies granted to Landlord pursuant to the Lease, as amended hereby, Landlord shall have the right to withhold payment of all or any portion of the Tenant Improvement Allowance and/or cease or delay
preparation of the Systems Plans and/or cause Contractor to cease the construction of the Tenant Improvements (in any such case(s), Tenant shall be responsible for any delay in the Substantial Completion of the Expansion Premises caused by any
Landlord election under this
Section 6.7
pursuant to the terms of
Section 5
of this Tenant Work Letter).
6.7
Construction of Tenant Improvements: Tenant’s Occupancy of Existing Premises
. Tenant hereby acknowledges that, notwithstanding Tenant’s occupancy of the
Existing Premises during Landlord’s construction of the Tenant Improvements, Landlord shall be permitted to complete the Tenant Improvements during normal business hours, and Tenant shall provide a clear working area for the construction of the
Tenant Improvements (including, but not limited to, moving of furniture, fixtures and Tenant’s property away from the area in which Landlord is constructing the Tenant Improvements). In connection therewith, Tenant shall cooperate with all
reasonable Landlord requests made in connection with Landlord’s completion of the Tenant Improvements. Landlord shall use commercially reasonable efforts in connection with the construction of the Tenant Improvements in the Existing Premises to
minimize any material interference with the conduct of Tenant’s business therein (the “Construction Standard”). Subject to the foregoing, Tenant hereby agrees that the construction or installation of the Tenant Improvements shall in
no way constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent. Landlord shall have no responsibility or for any reason be liable to Tenant for any direct or indirect injury to or interference with Tenant’s
business arising from the
EXHIBIT B
-9-
construction or installation of the Tenant Improvements, nor, so long as Landlord complies with the Construction Standard, shall Tenant be entitled to any compensation or damages from Landlord
for loss of the use of the whole or any part of the Existing Premises or of Tenant’s personal property or improvements resulting from the construction or installation of the Tenant Improvements or Landlord’s actions in connection with the
construction or installation of the Tenant Improvements, or for any inconvenience or annoyance occasioned by Landlord’s construction or installation of the Tenant Improvements.
EXHIBIT B
-10-
SCHEDULE 1 TO EXHIBIT B
TIME DEADLINES
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Dates
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Actions to be Performed
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A. April 19, 2011
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Final Space Plan to be completed by Tenant and
delivered to Landlord.
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B. May 10, 2011
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Tenant to deliver Final Working Drawings to
Landlord.
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SCHEDULE 1 TO
EXHIBIT B
-1-
SCHEDULE 2 TO EXHIBIT B
LIST OF CONTRACTORS
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1.
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JE Cummings Corporation
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7.
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Foushee and Associates Company, Inc.
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8.
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Schuchart Construction
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SCHEDULE 2 TO
EXHIBIT B
-1-
SECOND AMENDMENT TO OFFICE AGREEMENT LEASE
This Second Amendment to Office Lease Agreement (this
“Second Amendment”)
is made and entered into as of
May 4, 2011, by and between CITY CENTER BELLEVUE PROPERTY LLC, a Delaware limited partnership
(“Landlord”),
and ESTERLINE TECHNOLOGIES CORPORATION, a Delaware corporation (“
Tenant
”).
R
E
C
I
T
A
L
S
:
A. Landlord (as successor-in-interest to WA-City Center Bellevue, L.L.C.) and
Tenant are parties to that certain Office Lease Agreement, dated July 1, 2003, as amended by that certain First Amendment to Office Lease Agreement (the
“First Amendment”),
dated April 14, 2011 (collectively, the
“
Lease
”), pursuant to which Landlord leases to Tenant and Tenant leases from Landlord 17,833 rentable square feet of space (the
“Existing Premises”)
on the fifteenth (15
th
) floor of the building located at 500 108
th
Avenue NE, Bellevue, Washington (the
“Building”).
B. The parties desire to amend the Lease on the terms and conditions set forth in
this Second Amendment.
A
G
R
E
E
M
E
N
T
:
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows.
1.
Terms
. All undefined terms when used herein shall have the same respective meanings as are given such terms in the Lease, unless expressly provided otherwise in
this Second Amendment.
2.
Tenant Work Letter
. Landlord and Tenant
hereby agree that
Schedule 1
to the Tenant Work Letter attached to the First Amendment as
Exhibit B
is hereby deleted in its entirety and is replaced with
Schedule 1
, attached hereto.
3.
No Further Modification
. Except as specifically set forth in this Second
Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect. In the event of any conflict between the terms and conditions of the Lease and the terms and conditions of this Second Amendment, the terms
and conditions of this Second Amendment shall prevail.
4.
Counterparts
.
This Second Amendment may be executed in multiple counterparts and each counterpart, when fully executed and delivered, shall constitute an original instrument and all such multiple counterparts shall constitute but one and the same instrument.
-1-
IN WITNESS WHEREOF, this Second Amendment has been executed
as of the day and year first above written.
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“LANDLORD”
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“TENANT”
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CITY CENTER BELLEVUE PROPERTY
LLC, a Delaware limited partnership
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ESTERLINE TECHNOLOGIES
CORPORATION, a Delaware corporation
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By:
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/s/ Jeremy B. Fletcher
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By:
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/s/ Robert D. George
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Jeremy B. Fletcher,
Senior Managing Director
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Its:
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VP, CFO
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By:
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Its:
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-2-
NOTARY PAGE
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STATE OF
)
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) ss.
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COUNTY OF
)
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I certify that I know or have satisfactory evidence that
Robert D. George
is the
person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
second Amendment Office Lease
of ESTERLINE
TECHNOLOGIES CORPORATION, a Delaware corporation, to
be the
free and voluntary act of such party for the uses and purposes mentioned in the instrument.
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Dated:
04/22/2011
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/s/ Debra H. Rynhoud
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(Signature)
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(Seal or stamp)
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Title:
Executive Assistant to CEO, CFO & BOD
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Notary Public in and for the State of
Washington
My appointment expires:
11/21/2012
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STATE OF
)
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) ss.
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COUNTY OF
)
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I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that (he/she) signed this
instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
of
ESTERLINE TECHNOLOGIES CORPORATION, a Delaware corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
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Dated:
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(Signature)
(Seal or stamp)
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Title:
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Notary Public in and for the State of
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My appointment expires:
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STATE OF CALIFORNIA
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)
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COUNTY OF LOS ANGELES
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)
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On
MAY 18, 2011
, before me,
STEFANIA PANFILI
, a Notary Public,personally
appeared Jeremy B. Fletcher, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the forgoing paragraph is true and correct.
WITNESS my hand and official seal.
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Signature
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/s/ Stefania Panfili
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(Seal)
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-2-
SCHEDULE 1 TO EXHIBIT B
TIME DEADLINES
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Dates
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Actions to be Performed
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A. May 10, 2011
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*Final Space Plan to be completed by Tenant and
delivered to Landlord.
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B. June 1,2011
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Tenant to deliver Final Working Drawings to
Landlord.
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*Landlord and Tenant acknowledge and agree that Final Space Plan referenced above shall
be in a condition and shall include specificity sufficient that Landlord shall be able to obtain all permits with respect thereto.
SCHEDULE 1 TO
EXHIBIT B
-1-
