HomeMy WebLinkAboutEC17-206 - Other - Marquee on Meeker - Phase II - Section 05: Completion and Performance Guaranty - 03/30/2020Section 5
COMPLETION AND PERFORMANCE GUARANTY
THiS AND PERFORMANCE GUARANTY (this "Guaranty") is made
and given effective as of 2020 (the 'oEffective Date"), by FNW INC., a
Washington corporation ("Guarantor"), to and in favor of CITY OF KENT, a Washington
municipal corporation (t'Seller").
RECITALS
A. Seller and Marquee on Meeker LLC, a Washington limited liability company
("Buyer") 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 September 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 ,4-l 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 "Phase 2 Property"). The
Phase t Property and the Phase 2 Property are collectively refened to herein as the "Properties."
B. As a condition to the sale of the Phase I Property and lease of the Phase 2 Properfy
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 Properry 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 Agreemento' 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 Augu st 23 , 2017 .
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1.2 "Person" means any individual, sole proprietorship, limited partnership,
joint venture, unincorporated organization, institution, parlnership, 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 full development of the Phase 2 Property,
but not including the Project lnftastructure.
1.4 "Phase 2 Project Vertical Improvements" means all improvements
contemplated and permitted under the Development Agreement for the full development of the
Phase 2 Property, 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 "Project" means the Phase 2 Properly, 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" 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 Property, all as contemplated under the Development Agreement,
including, without limitation, the o'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 traffic/pedestrian improvements, required to support the fulI development of the
Phase 2 Property, all as contemplated under the Development Agreement, including, without
limitation, the "Meet Me on Meeker" improvements.
1.8 "Substantial Completion" or "Substantially Completed'o 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
commence 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
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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 referred to herein as the
'(Guaranteed Obligations". 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 Froject lmprovements 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 lmprovements prior to August 23,
2025.
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 fumished 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 cofirmon 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, and/or 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
ganting extension of time, under this Guaranty or any of the Project Agreements or any waiver,
consent, extension, renewal, or modihcation thereof.
3.5 Any bankruptcy, insolvency, reorganizalion, 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.
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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 othenvise 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
othenvise impairing the liability of Guarantor hereunder.
4. NATURE OF GUARANTY. The liability of Guarantor under this Guaranty is an
absolute and unconditional guaranry of payment and of perfonnance 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 further action or proceeding which may be brought under this Guaranty
by reason of any further default or defaults hereunder or in the performance and observance 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 Cuarantor'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,
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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 3 ltt aid September 30s. Guarantor shall certify that it is in iompliance
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, howevero 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"). 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 satisfying the Minimum Adjusted Net Worth covenant in Section
6.2 below, Guarantor shall provide to Seller the same type of supporting documentation conceming
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 Sgction 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 Minimur-n Liqriditv. Guarantor shall maintain a total Unencumbered
Liquidity of not less than $3,000,000.
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6,2 Minimum Adiusted Net Worth. Guarantor and Shareholders shall
maintain an aggregate minimum Adjusted Net Worlh 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:
'(Debt" 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 (l) intangible assets (i.e., goodwill, trademarks, patents,
copyrights, organizational expenses, and similar intangible items, but including
leaseholds and Ieasehold 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 reserves for appropriations of retained
eamings 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 par:ty; 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 Consfruction Lender Requinements. Notrvithstanding the Minimum
Liquidity and the Minimum Adjusted Net Worlh 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 and/or
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, WAMRS. 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.
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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 forth 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 fuIl. 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 returned 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 concerning 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.
Cuarantorhas 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 governmental 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,
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assets or revenues pursuant to the provisions of any such mortgage, 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.
f 0.5 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 satisfu 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 ofand 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 parly (collectively, o'notices") shall be in writing and shall be validly given or made to another
parry ifdelivered either personally or by Federal Express or other overnight 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 electronic 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 transrnission.
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
220 Fourth Avenue South
Kent, WA 98032
Attn: Pat Fitzpatrick and Kurt Hanson
Email : pfitzpatrick@kentwa. gov
khanson@kentwa.gov
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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
Auburn, WA 9800 I
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 parry 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 performance of any covenant, agreement, or condition of this Guaranty or to
exercise any right or remedy shall constitute 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. In 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 incuned in connection with such abtion or proceeding (including
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any appeals therefrom) from the non-prevailing party, 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 ofany suchprovision 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 WATVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY
ruRY OF ALL DISPUTES ARISTNG OUT OF OR RELATING TO THIS GUARANTY.
20, TIME. nDay" as used herein means a calendar day and "business day" 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 perforrnance 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
[signature on following page]
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By
N
Its:
IN WITNESS WHEREOF, the undersigned has executed this Completion and
Performance Guaranty effective as of the Effective Date first hereinabove written.
,a corporation
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 to satisfy the Minimum Adjusted Net Worth covenant of Guarantor in Section 6.2 above
Shareholders agrees to fumish such financial schedules and statements
tion to Guarantor as required for Guarantor to provide Seller the supporting
lish such Shareholder's Adjusted Net Worth.
Jr
other
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EXHTBITA.l
Legal Description of Phase I Property
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017.I, RECORDED I.]NDER
RECORDINC NO, 2O18032I9OOOO4, IN KING COT]NTY, WASHINGTON.
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EXHIBIT A.2
Lesal De$cription of Phase 2 Propefty
LOTS 3,4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP.2OI7-1, RECORDED UNDER
RECORDING NO. 2OI803219OOOO4, IN KING COTII\trTY, WASHINGTON.
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Form of Compllance - FItlW, lnc.
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) Pursuant to the terms of that certain Completion and Performance Guaranty dated as of April 1,
2020 between the signers and City of Kent ("Guaranty").
(2) I have made, or have caused to be made under my supervision, a review in reasonable detail of
the transactions and condition of, as of the accounting period ending March 31, 2020 the
attached bank statements, and:
(3) The examination described ln paragraph (2) confirms the "Minimum Liquidity" of $3,000,000 at
the end ofthe accounting period covered by the attached bank statement.
The foregoing certifications, together with the statements, other documents attached hereto,
computations set forth hereto and made a part hereol and the financial statements delivered with
this Certiflcate in support hereof are made and delivered this 8th day of April 2020 pursuant to the
Guaranty.
Guarantor
lnc.
Brett bsen, President
The undersigned FNW, lnc. shareholders John W. McKenna Jr. and Brett M. Jacobsen hereby
certify that their aggregate and adjusted net worth exceeds $L0,000,000 as of March 31, 2019. Bank
certlfication wlll be provided at your request.
nJohnJr.
Gtbank,Business Statement
Account Number:
1 535 0028 9332
Statement Perlod:
Mar 2,2020
through
Mar 3"1, 2020
Page 1 of43
To Contact U.S. Bank
P.O, Box 1800
Salnt Paul, Mlnnesota 55101-0800
3305 IMG 6480 S Y STO1_.a-
t,tillil,,llltl,llllrrilll1r,;1ll1,1r1ll,l,iltlltl,liltl,llill,ll
000062568 05 SP 000638417142704 S
FIORILLO NORTHWEST INC
DBA FNW INC
271 1 W VALLEY H\ffT N STE 2OO
AUBURN WA 98001-1662
II
Commercial Customer
Servlce:
U.S. Bank accepts Relay Calls
lnternet:
1-866-71 5-2599
usbank.com
You can now send Real-Tlme Payment (RTP) credit transfers up to $100,000, With a higher limit, now is a great time to
explore how a 24171365 real-time payment capability can help your business. lf you haven't tried RTP today and want to discuss
adding this capability to your U.S. Bank services, please contact your Commercial Customer Service Team (see Customer
Service in SinglePoint lefi-hand navigation) or talk to your Treasury Management Consultant.
Effectlve May 11, 2020 the "Your Deposit Account Agreement" booklet will include updates that may affect your rlghts. The
main updates to note in the revised "Your Deposit Account Agreement" booklet sections, and sub sections, are:. lncluded in multiple sectionso Clarification around reoccurring or onetime merchant debit card transactionso Rebranding of the Premier Line of Credit product to Personal Line of Credit
o Clarification on ATM deposit availability. Addition of "Special Provisions for Third Party Accounts" sectione Definitions sectiono Added the definition for "account" or "statement'' cycle. Savings Acoount sectiono Clarification on "Transfer and/or Withdrawal Restrlctlons"o Clariflcation on "Excessive Transfers and/or Wthdrawals"r Levies, Garnishments and other Legal Process sectiono Additional language and clarity on the legal process
. Funds Availability sectiono Changes to the Funds Availability section to reflect inflationary adjustments to certain specified dollar amounts
for funds:
o Determining tho Availability of a Deposit - All Accounts sub-section. Updated timing on deposits done at an ATMo Deposits at Automated Teller Machines sub-section. Additlon of Partner ATMs section
Removed the following content and will be distributed upon individual product purchase
o Safe Deposlt Box Agreement
Funds
Availability
Section
Current
Amounts
Amounts effective as
of May 1 1,2020
Up to first $200 Up to first $225lmmediate Avallability - All Accounts
(lncreases to)
$225
Longer Delays May Apply -
Case by Case Delays
The first $200
of your deposit
(lncreases to)
$5,525
Longer Delays May Apply -
Safeguard Exceptions
Deposit of
Check(s)
greater than
$5,000
Speclal Rules for New Accounts -
Retail Consumer and Business
Accounts
All references
of $5,000
(lncreases to)
$5,525
a
[Fbank"FIORILLO NORTHWEST INC
DBA FNW INC
271 1 W VALLEY HWY N STE 2OO
AUBURN WA 98001.1662
Business $tatement
Account Number:
1 535 0028 9332
Statement Period:
Mar 2,2020
through
Mar 31, 2020
Page 2 of43
o Consumer Reserve Line Agreement
o Business Reserve Line Agreement
Starting May 11, download a copy of the revised booklet at usbank.com/tmterrnsandconditions, You may also call your
customer service team at the phone number listed at the top of this statement to request a copy.
U.S. Bank Natlonal A86ociatlon
Account Summary
Beginning Balance on Mar 2
Customer Deposits
Other Withdrawals
Checks Paid
Account Number 1 -535-0028-9332
# ltems
1
6
154
4,220,642.80
1,552,254.67
173,262.68-
1,456,583.67-
$
Endlng Balance on Mar 31,2020 $4,143,051,12
Customer DepositsNumber Date Ref Number Amount
Mar 30 8055853743 1,552,254.67
Total Gustomer Deposits $ 1,562,254.67
Other Withdrawals
4 ElectronicWithdrawal
REF=20063009852391 0N
ar 13 Service
3387702000 USATAX PYMT27 004640 1639347
'Total Other Withdrawals
Mar 25 Electronic Withdrawal To IRS 6,227.18-
REF=20084008'1773810N00 3387702000USATMPYMT270048532236985
1400000000 865,96-
$173,262.68.
Checks Presented Conventionally
Chock Date Ref Number Amount30620 Mar 2 8054584035 1,758,32
Check Date Ref Number Antount
30634*
30648-
30662*
30669*
30672*
30676*
30680'
30683*
30684
30686*
30687
30688
30690*
30692*
30693
30694
Mar 2
Mar 2
Mar 2
Mar 2
Mar 13
Mar 30
Mar 2
Mar 2
Mar 2
Mar 13
Mar 2
Mar 2
Mar 30
Mar 3
Mar 10
Mar 9
Mar 6
Mar 6
8054584036
8054584037
8054584038
8054578339
9254669778
8055983204
8055793335
8054578338
8056323503
9254669780
8057731 709
80551 08707
8055983205
8358425671
8356834093
805551 091 4
92548984 1 0
9254902566
1,758.32
1,758.32
1,758.32
B 13.34
2,326.21
1,758.32
1,066.25
1,051.45
2,368.24
2,326,23
974.58
2,626.32
1,758.32
1,629.52
897.09
1,242.39
802.57
654,1 I
30697
30698
30699
30700
30701
30702
30703
30704
30705
30706
30707
30708
30709
3071 0
30711
3Q712
30713
30714
3071 5
Mar 12
Mar I
Mar 6
Mar 13
Mar 6
Mar 6
Mar 11
Mar 30
Mar 6
Mar 9
Mar 10
Mar 13
Mar 13
Marl3
Mar 19
Mar 13
Mar 13
Mar 20
Mar 13
8954385069
805621 6522
9255072032
s254669779
9254937897
9253461971
8655047096
8055983206
9255990976
80591 91408
8356834094
9254907345
9254529076
9254526231
895393801 3
92545'10936
9254658037
9254128003
9254510927
854.46
2,368.24
781.39
2,326.22
974.58
2,626.31
631.22
1,758,32
932,99
1,629.52
897,09
1,027.21
802.57
654.1 S
854.45
2,368.24
589.04
2,326.22
974.s8
D695
,baoa
\TE \MOUNT
rOTAL
Deposits
Outstanding Wthdrawals
)ATE qMOUNT
TOTAL $
BALANCE YOUR ACCOUNT
Tokeeptrackofall yourtransactions,youshouldbalanceyouraccounteverymonlh. Please
examine this statement immediately. We wlll assume that the balance and transactlons shown are
correct unless you notjry us of an error,
1 . List any deposits that do not appear on your statement in the Ouistanding Deposlts section at
the left, Record the total,
2. Check off ln your checkbook reglsler all checks, withdrawals (including Deblt Card and ATM)
and automatic payments that appear on your stat€ment. Wthdrawals that are NOT checked off
should be recorded ln the Outstanding Wthdrawals section at the left, Record the total,
3. Enter the ending balance shown on this statement. $_
4. Enier the lolal deposils recorded in the Outstanding Deposits secilon. $_
5. Total lines 3 and 4.
6. Enter the total withdrawals recorded in the Outstanding Wlthdrawals soction,
7. Subtract line 6 from line 5. This is your balance,
B. Enter in your register and sublract from your register balance any checks, withdrawals or other
debits (including fees, lf any) that appear on your elatement but have not been recorded ln your
reglster.
9. Enter ln your register and add to your register balance any deposits or other credlts (lncludlng
lnterest, lf any) thal appear in your statemont but have not been recorded ln your register.
l0.Thebalancolnyourroglstershouldbethesameasthebalanceshownln#7. lfitdoesnot
match, revlewand check all figures used, and check the addltion and subhaction in your reglster
lf necessary, review and balance your slatement from the prevlous month,
ilFbank"
IMPORTANT DISCLOSURES TO OUR CONSUMER CUSTOMERS
ln Caee of Errors or Questions About Your Ghecking, Savlngs, ATM, Doblt Card, ACH, Bill Pay and Other Electronic Transfers
the FIRST statement on whlch tho error or problom appeared. Telephone us at the number listed on the front of thls statement or write to ue at U.S, Bank, EP-MN-WSSD, 60 Llvlngston
Ave., St, Paul, MN 55107,. Toll us your namg and account numbet.. Doscribs tho orror or the transfer you aro unsure about, and explain as cleady as you can why you bolieve there 19 an orror or why you neod more lnformatlon.. Tell u8 the dollaramountof lhe suspected error.
We wlll detormino whelher an error occurred wlthin 10 buslness days aft€r w6 hear from you and vyill correct any orror promptiy, lf we need moro tlme, we may tsko up to 45 days to
'p ask you to put your complaint or qugstlon ln wrillng and we do not rocolvo lt withln 10 buelness days, ws may not credil your accounl,
| .Please note: Papor draft and pap6r check clalms must be disputed within 30 days per Your Deposit Account Agreement.
,d/IPORTANT DISCLOSURES TO OUR BUSINESS CUSTOMERS
lieted on the front of thls statemont lmmedlately.
CONSUMER BILLING RIGHTS SUMMARY REGARDING YOUR RESERVE LINE
What To Do ff You Thlnk You FInd A Mlstake on Your Statement
lf you thlnk thoro ls an error on your staloment, write to us at:
U.S, Bank, P,O. Box 3528, Oshkogh, W 64903-3528.
ln your l6tter, givs us the followlhg lnformatlon:. Accounl lnformalion,' Your nam6 and account number,. Dollar Amount: The dollar amount of th6 Buspoctod enor.. Dascrlptlon of ptoblem: lf you think there ie an errcr on your blll, descrlbs what you bellove ls wrong and why you believe it ls a mlstake.
You must contact us within 60 days efter ths orror apposred on your statemont
Wlllle we lnvestlgalo whether or not there has b6en an enor, tho followlng are hue:. Wocannotlrytocoll€ctthoamountlnqu66tlon,orreportyouasdelinquontonthatamount.. Tho charge ln quesllon may romain on your Btatoment, and we may continuo to sharge you lntorest on thal amounl, But, lf we determln6 that wo made a mistake, you will not havo to
pay the amount ln questlon or any interesl or olhor fees rslated to that amount,
o Whlle you do not hav6 to pay tho amount ln questlon, you aro ro8ponslble for the remainder of your balance.. Wo can apply any unpaid amounl against your credit limlt,
Roserve Llne Balance Computatlon Mothod: To dotarmlne your Balance Subject to lntoroBt Rate, use lhe datee and balanoes provlded in the Roserve Line Balance Summary s€ction.
days ln lhe cyclo. Thls ie your Balance $ubJect to lnterebt Rato. Any unpald lnterest oharges and unpaid fees aro not lncluded in tho Balance SubJect 1o lnterost. The '-*INTEREST
CHARGE*- begins from the date of each advance.
REPORTS TO AND FROM CREDIT BUREAUS FOR RESERVE LINES
We may roport Information about your account to credit buroaus. Late payments, mlesed payments or other defaults on your account may be reflsctod ln your credit report.
CONSUMER REPORT DISPUTES
affldavit of ldentity tholt), lf appllcable.
Member FDIC