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HomeMy WebLinkAboutEC17-206 - Other - Marquee on Meeker - Phase II - Completion and Performance Guaranty - 03/30/2020COMPLETION AND PERT'ORMANCE GUARANTY THIS COMPLETION AND PERFORMANCE GUARANTY (this "Guaranty") is made and given effdctive as of Hafoh 30 , 2020 (the ooEffective Dateoo), by FNW INC., a Washington corporation ("Guarantor"), to and in favor of CITY OF KENT, a Washington municipal corporation (oo Seller"). RECITALS A. Seller and Marquee on Meeker LLC, a Washington limited liability company ('oBuyer") entered into a Real Estate Purchase and Sale Agreement with Lease/Option to Purchase dated as of May 5,2017, as amended by Amendment to Real Estate Purchase and Sale Agreement with Lease/Option to Purchase dated as of Septemb er 20, 2017 (as amended, the "Purchase and Sale Agreement"), for the sale by Seller, and the purchase by Buyer, of certain real property located in King County, Washington, legally described on Exhibit A-1 attached hereto (the "Phase I Property") and for the lease with option to purchase by Seller, as landlord, and the lease with option to purchase by Buyer, as tenant, of certain adjoining real property located in King County, Washington, legally described on Exhibit A-2 attached hereto (the ooPhase 2 Property"). The Phase 1 Property and the Phase 2 Property are collectively referred to herein as the o'Properties.o' B. As a condition to the sale of the Phase 1 Property and lease of the Phase 2 Property by Seller to Buyer, Seller required Guarantor to enter into a form of this Guaranty. Conveyance of the Phase I Property to Buyer occurred on April 2,2018. Seller and Buyer are now prepared to close on the conveyance of the Phase 2 Property to Buyer contingent upon, among other things, Buyer's execution and delivery of this Guaranty with respect to the Phase 2 Property. C. Guarantor acknowledges that Guarantor will receive a direct or indirect material benefit from the sale of the Phase 2 Property to Buyer and therefore is willing to enter into and provide this Guaranty. D. Except where otherwise provided in this Guaranty, all initially-capitalized terms used herein shall have the meanings ascribed to them in the Purchase and Sale Agreement. AGREEMENT NOW, THEREFORE, in consideration of the sale and lease of the Phase 2 Property by Seller to Buyer and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor, for itself, its successors and assigns, hereby covenants and agrees as follows: 1. DEFINITIONS. For purposes of this Guaranty 1.1 "Development Agreementoo means that certain Marquee on Meeker Project Development Agreement, by and between Seller and Buyer related to the Project, as approved by the City of Kent Council on August 15 , 2017 , and effective as of August 23 , 2017 . 1 I 0s s329 s9.s 0069940-00002 1.2 ooPerson" means any individual, sole proprietorship, limited partnership, joint venture, unincotporated organization, institution, paftnership, corporation, association, trust, limited liability company, or other legal entity. 1.3 "Phase 2 Project Improvements" means all improvements contemplated and permitted under the Development Agreement for the fulI development of the Phase 2 Property, but not including the Project Infrastructure. 1.4 ooPhase 2 Project Vertical Improvementsoo means all improvements contemplated and permitted under the Development Agreement for the fulI development of the Phase 2Property, but not including the Project Infrastructure, and also not including the concrete foundation work and the concrete podium work for the Project multifamily buildings. 1.5 'oProject" means the Phase 2 Property, Phase 2 Project Improvements and Proj ect lnfrastructure. 1.6 o'Project Agreements" means the Purchase and Sale Agreement and the Development Agreement. 1.7 "Project Infrastructure'o means (a) all public and private on-site and offsite utility and other infrastructure improvements, including, without limitation, water, storm water, sanitary sewer utilities and traffic/pedestrian improvements, required to support the full development of the Phase 2 Propefi, all as contemplated under the Development Agreement, including, without limitation, the "Meet Me on Meeker" improvements and Phase 2 Property geo- piers and (b) all public and private on-site and off-site mainline utility and other infrastructure improvements, including, without limitation, mainline water, storm water and sanitary sewer utilities, and trafficlpedestrian improvements, required to support the fulI development of the Phase 2 Properiy, all as contemplated under the Development Agreement, including, without limitation, the "Meet Me on Meeker" improvements. 1.8 o'Substantial Completion" or "Substantially Completedo' means, with respect to any improvement or work, such improvement or work has been completed in accordance with all applicable permits and laws and has been inspected and approved by the appropriate authorities as evidenced by a certificate of occupancy for all residential portions of the Project, subject only to minor punch-list items (minor details of construction, decoration and mechanical adjustments) that do not interfere with use and operation of the improvement or work in question. 2. GUARANTY. Guarantor hereby unconditionally and absolutely warrants and guarantees to Seller that: (a) construction of the Phase 2 Project Vertical Improvements shall cofirmence no later than August 23, 2025, and shall be Substantially Completed no later than August 23, 2027; (b) the Project shall be constructed and completed in accordance with the Development Agreement, without substantial deviation therefrom unless approved by Seller in writing; (c) except for a first-priority deed of trust or security interest in the Project granted to Buyer's construction lender (that is any institutional bank or lender which is not affiliated with or related to Buyer or any of its principals or any affiliates or subsidiaries of the Buyer, any of its principals or their family members), the Project will be constructed and completed free and clear of all liens and encumbrances, including without limitation all mechanics' liens, materialmen's 105532959.5 0069940-00002 -2- liens, and equitable liens; and (d) all costs of constructing and completing the Project will be paid when due. The obligations described in preceding clauses (a) - (d) are refeffed to herein as the "Guaranteed Obligationsoo. For avoidance of doubt, and subject to Section 19. of the Development Agreement concerning excused delays in performance due to events of force majeure, Buyer shall commence construction of the Phase 2 Project Improvements not later than twelve (12) months after the Effective Date of this Guaranty, but such work shall not otherwise trigger an obligation to commence the Phase 2 Project Vertical Improvements prior to August 23, 202s. If the Project shall not be constructed and completed as provided above, Guarantor shall: (a) diligently proceed to cure such default and procure completion of the Project at Guarantor's sole cost and expense in compliance with all of the requirement provided above; (b) fully pay and discharge all claims for labor performed and material and services furnished in connection with the construction of the Project; and (c) pay such amounts as may be necessary to release and discharge all claims of stop notices, mechanics' liens, materialmen's liens, and equitable liens, if any,that may come into existence in connection with the construction of the Project. 3. NO REDUCTION OR DISCHARGE OF GUARANTEED OBLIGATIONS. Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor's obligations under this Guaranty shall not be released, diminished, impaired, reduced, or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including, without limitation, rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following: 3.1 Any waiver or release by Seller of any of the terms, provisions, conditions, obligations, andlor agreements constituting all or any part the Guaranteed Obligations or any of the Project Agreements. 3.2 The direct or indirect, voluntary or involuntary, sale, conveyance, assignment, lease, or other transfer of any interest in Buyer, all or any portion of the Phase 2 Property (or any improvement thereon from time to time) and/or any of the Project Agreements. 3.3 Any amendment, modification of, or supplement to any of the Project Agreements, or any assignment or transfer thereof 3.4 Any exercise or non-exercise of any right, power, remedy or privilege, or granting extension of time, under this Guaranty or any of the Project Agreements or any waiver, consent, extension, renewal, or modification thereof. 3.5 Any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar law or proceeding related to Buyer or any other Person or any of their respective assets and/or any order of any court, government or agency thereof purporting to reduce, amend, or otherwise affect any obligation or liability of Buyer under any of the Project Agreements. 3.6 Any release or discharge of Buyer or any other guarantor or any other Person in any receivership, bankruptcy, winding up, or other creditor proceedings. 1055329s9.s 0069940-00002 J- 3.7 Any change in the name, purposes, capitalization, ownership, management, or organization of Buyer. Without limiting the foregoing, Seller may amend or modify any of the Project Agreements and otherwise may deal with Buyer and its successors and assigns or any other guarantor or any other Person, without notice to or consent of Guarantor, and without affecting, diminishing, or otherwise impairing the liability of Guarantor hereunder. 4. NATURE OF GUARANTY. The liability of Guarantor under this Guaranty is an absolute and unconditional guaranty of payment and of perforrnance and not of collectability. The liability of Guarantor hereunder is primary and coextensive with that of Buyer and its successors and assigns and is joint and several. This Guaranty shall be a continuing guaranty. No action or proceeding brought or instituted under this Guaranty and no recovery in pursuance thereof shall be a bar or defense to any fuither action or proceeding which may be brought under this Guaranty by reason of any further default or defaults hereunder or in the performance and obseruance of any of the terms, covenants, conditions, and provisions in this Guaranty and/or any of the Project Agreements. Guarantor's performance of a portion, but not all, of the Guaranteed Obligations, shall in no way limit, affect, modify or abridge Guarantor's liability for that portion of the Guaranteed Obligations which is not completed as required under this Guaranty. Without in any way limiting the generality of the foregoing, in the event that Seller is awarded a judgment in any suit brought to enforce Guarantor's covenant to perform a portion of the Guaranteed Obligations, such judgment shall in no way be deemed to release Guarantor from its covenant to perform any other portion of the Guaranteed Obligations which is not the subject of such suit. Seller shall not be obligated to exhaust its recourse against Buyer, or any other guarantor or any other Person, or any security it may have for the satisfaction of the obligations hereby guaranteed before being entitled to performance by Guarantor of each and every one of the obligations hereby guaranteed. Seller may, at its sole discretion and to the extent.permitted by law, exercise its rights under this Guaranty either prior to, concurrently with, or after, the exercise of its remedies for default against Buyer or any other Person and in this regard, Guarantor hereby expressly waives any limitations on a concurrent exercise of remedies under this Guaranty which may be imposed under any applicable laws. This Guaranty is in addition to and not in substitution for any other guaranties held or which may hereafter be held by Seller, and Guarantor is jointly and severally liable with any such other guarantors for the payment and performance of the Guaranteed Obligations. 5. RIGHTS AND REMEDIES. If Guarantor shall fail to perform promptly as provided in this Guaranty within thirty (30) days after written notice from Seller, Seller shall have the following rights and remedies: 5.1 Perform Guaranteed Obligations. Seller, at its option, but without any obligation to do so, may proceed to perform on behalf of Guarantor any and all work on the Project and any of the other Guaranteed Obligations and to pay any costs incurred in connection with the work and performance. Guarantor, upon Seller's demand, shall promptly pay to Seller all such sums expended. 5.2 Cure Defaults. Seller, at its option, but without any obligation to do so, may cure any defaults, including without limitation, paying any unpaid bills and liens, including, 105532959.5 0069940-00002 -4- without limitation, those for construction, labor, and materials. Guarantor, upon Seller's demand, shall promptly pay to Seller all such sums expended. 5.3 Specific Performance. From time to time and without first requiring performance on the part of Buyer, to require Guarantor specifically to perform Guarantor's obligations under this Guaranty, by action at law or in equity or both, and further, to collect in any such action, compensation for all loss, cost, damage, injury and expense sustained or incurred by Seller as a direct or indirect consequence of Buyer's or Guarantor's failure to perform. 5.4 Other Rights and Remedies. In addition, Seller shall have and may exercise any or all of the rights and remedies it may have available at law, in equity, or otherwise. 6. FINANCIAL COVENANTS. The following financial covenants, based on the definitions shown below, must be maintained by Guarantor during the term of this Guaranty. Compliance with the following financial covenants shall be measured semi-annually as of the following dates: March 3l't and September 30th. Guarantor shall certify that it is in compliance with the following financial covenants by delivering a certificate of compliance in form reasonably requested by Seller, along with supporting documentation (e.g., schedule of assets and liabilities and bank and brokerage statements), which certificate of compliance shall be provided within thirty (30) days after the end of each semi-annul period; provided, however, that if a particular certificate of compliance signed by Guarantor is not received by Seller by the required deadline, Seller reserves the right to determine Guarantor's compliance with the terms hereof based on other information available to Seller. Notwithstanding the foregoing paragraph, Guarantor may satisfy the Minimum Adjusted Net Worth requirement in Section 6.2 below by aggregating Guarantor's Adjusted Net Worth together with the Adjusted Net Worth of each of Brett Jacobsen and John W. McKenna, Jr. (collectively, the "Shareholders'o). Each of the Shareholders is a shareholder in Guarantor and shall only be considered a Shareholder under this Guaranty as long as they remain a shareholder in Guarantor. If Guarantor elects to aggregate the Adjusted Net Worth of the Shareholders with that of Guarantor forpurposes of satis$uing the Minimum AdjustedNet Worth covenant in Section 6,Zbelow, Guarantor shall provide to Seller the same type of supporting documentation concerning the Shareholders' net worth as Guarantor is required to provide pursuant to the preceding paragraph. For avoidance of doubt, if Guarantor elects to aggregate the Shareholders' Adjusted Net Worth with that of Guarantor for purposes of satisfying the Minimum Adjusted Net Worth covenant in Section 6.2 below, the Shareholders will not become guarantors hereunder and will not assume the obligations of Guarantor hereunder. The current Shareholders shall each execute the joinder provision at the end of this Guaranty to acknowledge their consent to Guarantor providing to Seller supporting information concerning the Shareholders' Adjusted Net Worth, in the event that Guarantor elects to aggregate the assets of the Shareholders with those of Guarantor as described in this paragraph. Failure by Guarantor to satisfy each of the following financial covenants shall constitute a default under this Guaranty. Terms used in such financial covenants are as defined below. 6.1 Minimum Liquiditv. Guarantor shall maintain a total Unencumbered Liquidity of not less than $3,000,000. I 05 5 329 59.s 0069940-00002 -5- 6.2 Minimum Adiusted Net Worth. Guarantor and Shareholders shall maintain an aggregate minimum Adjusted Net Worth of not less than $10,000,000. 6.3 Definitions. For purposes of the foregoing financial covenants, the following terms shall have the following meanings: 66Debt" means, for Guarantor or any Shareholder, as applicable, all liabilities, whether now or hereafter existing, voluntary or involuntary, due or not due, liquidated or unliquidated. ..@''meanS,forGuarantororanyShareholder,suchparty's total assets, excluding (1) intangible assets (i.e., goodwill, trademarks, patents, copyrights, organizational expenses, and similar intangible items, but including leaseholds and leasehold improvements), (2) treasury stock, (3) cash held in a sinking or other similar fund established for the purpose of redemption or other retirement of capital stock, (4) reserves for depreciation, depletion, obsolescence, or amortization of properties and other reseryes for appropriations of retained earnings that have been or should be established in connection with such party's business, and (5) any revaluation or other write up in book value of assets subsequent to the fiscal year of such parfy; less Debt. ..@''meanSthesumofcash,marketablestocksandbonds, and other near-cash investments held by Guarantor and immediately available with unimpaired value; but not including pledged assets or IRA, 401 (k), annuity, or trust accounts. 6.4 Construction Lender Requirements. Notwithstanding the Minimum Liquidity and the Minimum Adjusted Net Worth of requirements set forth in Sections 6.1 and 6.2 above, if any lender providing the construction loan to Buyer for the construction of the Project requires a greater Minimum Liquidity amount and/or a greater Minimum Adjusted Net Worth amount (and/or any similar financial covenant) applicable to Guarantor, any Shareholder and/or any other person or party providing a guaranty for completion of the Project construction andlor repayment of the Project construction loan, then concurrent with the closing of such construction loan Guarantor and, if applicable, Shareholders agree to increase the Minimum Liquidity and/or Minimum Adjusted Net Worth of this Guaranty (or provide such similar financial covenant required by the construction lender), as applicable, to match the greater sum required under the Project construction loan. 7. WAIVERS. To the maximum extent permitted by law, Guarantor hereby waives the following: (a) notices of the acceptance of this Guaranty; (b) any statute of limitations affecting Guarantor's liability hereunder or the enforcement thereof; ( c) all defenses based upon any insolvency or disability of Buyer and any and all other waivable defenses; and (d) all principles or provisions of law which conflict with the terms of this Guaranty. Moreover, Guarantor agrees that its obligations shall not be affected by any circumstances which constitute a legal or equitable discharge of a guarantor or surety. l0s s 329 s9.s 0069940-00002 -6- 8. SUBROGATION. Guarantor agrees that until such time as all the obligations of Buyer and its successors and assigns under the Project Agreements have been fully and irrevocably paid and discharged, no payment by Guarantor pursuant to any provision hereof shall entitle Guarantor, by subrogation or otherwise, to the rights of Seller under any of the Project Agreements. Guarantor further agrees that, to the extent the waiver of its right of subrogation as set forlh herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation Guarantor may have against Buyer or its successor and assigns shall be junior and subordinate to all rights that Seller has under the Project Agreements. 9. TERMINATION OF GUARANTY/REINSTATEMENT IN CERTAIN CIRCUMSTANCES. This Guaranty shall continue until (A) the Project has been Substantially Completed in accordance with the Development Agreement, without substantial deviation therefrom unless approved by Seller in writing and free and clear of all liens and encumbrances as provided above, and (B) all obligations of Guarantor to Seller under this Guaranty have been performed in full. If at any time any payment of the amount payable by Buyer or its successor or assigns to Seller under any of the Project Agreements or is rescinded or must be otherwise restored or retumed upon the insolvency, bankruptcy or reorganization of Buyer or any other Person or otherwise, the Guarantor's obligations hereunder with respect to such payment shall be reinstated as though such payment has been due but not made at such time. The covenants and terms contained in this Section 9 shall survive the payment and performance of the Guaranteed Obligations and any termination of this Guaranty. 10. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Seller that: 10.1 Guarantor now has and will continue to have full and complete access to any and all information conceming the Phase 2 Property and Buyer, Buyer's financial status and Buyer's ability to pay and perform the obligations owed to Seller under the Project Agreements. Guarantorhas reviewed and approved copies of the Project Agreements. So long as Guarantor's obligations hereunder remain unsatisfied or owing, Guarantor shall keep fully informed as to all aspects of Buyer's financial condition and the performance of said obligations. 10.2 No consent of any other person, including, without limitation, any creditors of Guarantor, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any govemmental authority is required by such Guarantor in connection with this Guaranty or the execution, delivery, performance, validity, or enforceability of this Guaranty and all obligations required hereunder. This Guaranty has been duly executed and delivered by Guarantor, and constitutes the legally valid and binding obligation of Guarantor enforceable against Guarantor in accordance with its terms. 10.3 The execution, delivery and performance of this Guaranty will not violate any provision of any existing law or regulation binding on Guarantor, or any order, judgment, award or decree of any court, arbitrator or goverrmental authority binding on Guarantor, or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which Guarantor is a party or by which Guarantor or any of Guarantor's assets may be bound, and will not result in, or require, the creation or imposition of any lien on any of Guarantor's property, 105532959.5 0069940-00002 -7- assets or revenues pursuant to the provisions of any such moftgage, indenture, lease, contract or other agreement, instrument or undertaking. 10.4 Neither Seller nor any other Person has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty. 10.5 As of the Effective Date, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is and will be solvent and has and will have assets that, fairly valued, exceed Guarantor's obligations, liabilities (including contingent liabilities) and debts, and has and will have properly and assets sufficient to satisfy and repay Guarantor's obligations and liabilities. 11. AUTHORIZATION. The individuals executing this Guaranty each warrant and represent that this Guaranty was duly authorized by all individuals or entities whose authorization was required for this Guaranty to be effective and binding on Guarantor. 12. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon Guarantor, its successors and assigns and shall inure to the benefit of and shall be enforceable by Seller and its successors and assigns. This Guaranty may be assigned in whole or in part by Seller and it successors and assigns. 13. NOTICES. Unless applicable law requires a different method of giving notice, any and all notices, demands or other communications required or desired to be given hereunder by any party (collectively, oonotices") shall be in writing and shall be validly given or made to another party if delivered either personally or by Federal Express or other ovemight delivery service of recognized standing, or if deposited in the United States Mail, certified, registered, or express mail with postage prepaid, or if sent by electrolic mail. If such notice is personally delivered, it shall be conclusively deemed given at the time of such delivery. If such notice is delivered by Federal Express or other ovemight delivery service of recognized standing, it shall be deemed given the next business day after the deposit thereof with such delivery service, postage prepaid. If such notice is mailed as provided herein, such shall be deemed given two (2) business days after the deposit thereof in the United States Mail, postage prepaid. If such notice is given by electronic mail, it shall be deemed given on the date shown on the electronic confirmation of transmission. Each such notice shall be deemed given only if properly addressed to the party to whom such notice is to be given as follows: Seller:City of Kent 220FourthAvenue South Kent, WA 98032 Attn: Pat Fitzpatrick and Kurt Hanson Emai I : pffizp atr ick@kentw a. g ov khanson@kentwa.gov I 0s5329s9.s 0069940-00002 -8- With a copy to Stoel Rives LLP 600 University Suite 3600 Seattle, WA 98101-3299 Attn: Beth A. Clark Email: beth.clark@stoel.com Guarantor:FNW Inc. c/o Landmark Development Group 2711 West Valley Highway North Suite 200 Aubum, WA 98001 Attn: Brett Jacobsen Email: bjacobsen@firw-inc.com With a copy to:HAL Real Estate Inc. 2025 First Avenue, Suite 700 Seattle, WA 98121 Attn: Jonathan Manheim Email: jmanheim@halrealestate.com and:Fikso Kretchmer Smith Dixon Ormseth PS 901 Fifth Avenue, Suite 400 Seattle, WA 98164 Attn: Thomas W. Read Email: TRead@fksdo.com Any party hereto may change its address for the purpose of receiving notices as herein provided by a written notice given in the manner aforesaid to the other party hereto. 14. AMENDMENT, WAIVER. No modification, termination or amendment of this Guaranty may be made except by written agreement of the parties. No failure by Seller to insist upon the strict perfofinance of any covenant, agreement, or condition of this Guaranty or to exercise any right or remedy shall constifute a waiver of any such breach or any other covenant, agreement, term or condition. No waiver shall affect or alter this Guaranty, and each and every covenant, agreement, term and condition of this Guaranty shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 15. HEADINGS; ENTIRETY. The article and paragraph headings of this Guaranty are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof. This Guaranty embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. 16. COSTS AND EXPENSES. Ir the event of any lawsuit, mediation, arbitration or legal proceeding is brought to enforce any of the terms hereof, the prevailing party shall be entitled to recover its costs and expenses incurred in connection with such action or proceeding (including 105532959.s 0069940-00002 -9- any appeals therefrom) from the non-prevailing parly, including reasonable attorneys' and court fees and costs. 17. SEVERABILITY. If any one or more of the provisions of this Guaranty, or the applicability of any such provision to a specific situation, shall be held invalid or unenforceable, such provision shall be modified to the extent necessary to make it or its application valid and enforceable, and the validity and enforceability of all other provisions of this Guaranty and all other applications of any such provision shall not be affected thereby. 18. CONSTRUCTION. Guarantor acknowledges that it and its counsel have reviewed and revised this Guaranty and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Guaranty (including the exhibits) or any amendments thereto, and the same shall be construed neither for nor against Seller or Guarantor, but shall be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties. 19. GOVERNING LAW; JURISDICTION; WAMR OF JURY TRIAL. This Guaranty shall be governed by and construed in accordance with the internal laws of the state of Washington. The venue of any judicial proceedings related to this Guaranty shall be in Kent, Washington, unless otherwise mutually agreed in writing by the parties. Guarantor irrevocably submits to the exclusive jurisdiction of the federal or state courts located in Kent, Washington. GUARANTOR WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY ruRY OF ALL DISPUTES ARISING OUT OF OR RELATING TO THIS GUARANTY. 20. TIME. ooDay" as used herein means a calendar day and "business dayoo means any day on which national banks in the location where the Properties are located are generally open for business. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included at, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the Properties are located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. The last day of any period of time described herein shall be deemed to end at 5:30 p.m. (Pacific). Time is of the essence in the performance of this Guaranty. 21, EXECUTION. Without limiting the manner in which execution of this Guaranty may be accomplished, execution may be effected by electronic mail or facsimile transmission of a signature page of this Guaranty executed by Guarantor. If Guarantor effects execution by electronic mail or facsimile transmission of a signature page, Guarantor shall also promptly deliver to Seller an original counterpart signed by Guarantor, but the failure of Guarantor to furnish such original counterpart shall not invalidate the execution of this Guaranty effected by electronic mail or facsimile transmission. fsignature on following page] 1 0 s s 329 s9.s 0069940-00002 -10- IN WITNESS WHEREOF, the undersigned has executed this Completion and Performance Guaranty effective as of the Effective Date first hereinabove written. GU corporation By: Name Its f Joinder: The undersigned Shareholders, Brett Jacobsen and John W. McKenna, Jr., are executing this Guaranty for purposes of consenting to the provisions of Section 6 of this Guaranty, by which Guarantor may provide Seller with evidence of the Adjusted Net Worth of each Shareholder in order the Minimum Adjusted Net Worth covenant of Guarantor in Section 6.2 above. of Shareholders agrees to fuinish such financial schedules and statements to Guarantor as required for Guarantor to provide Seller the supporting ish such Shareholder's Adjusted Net Worth. Brett J John W t 0s 5329 59.5 0069940-00002 -11- EXHIBIT A-1 Leeal Description of Phase 1 Prooertv LOTS I AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-I, RECORDED LINDER RECORDING NO. 2OI8O32I9OOOO4, IN KING COLINTY, WASHINGTON. 105532959.5 0069940-00002 -12- EXHIBIT A-2 Leeal Description of Phase 2 Propeqv LOTS 3, 4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER RECORDING NO. 2OI8O32I9OOOO4, IN KING COLINTY, WASHINGTON. 105532959.5 0069940-00002 -13-