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Exhibit 31.1
CERTIFICATIONS
Chief Executive Officer
I, Leonard Stella, certify that:
1. I have reviewed this quarterly report on Form 10-QSB of Millenia
Hope Inc.;
2. Based on my knowledge, this annual report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in
this report;
4. The small business issuer's other certifying officer(s) and I are
responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)
for the small business issuer and have:
a. Designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating
to the small business issuer, including its consolidated
subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report
is being prepared;
b. Omitted
c. Evaluated the effectiveness of the small business issuer's
disclosure controls and procedures and presented in this
report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the small business
issuer's internal control over financial reporting that
occurred during the small business issuer's most recent fiscal
quarter (the small business issuer's fourth fiscal quarter in
the case of an annual report) that has materially affected, or
is reasonably likely to materially affect, the small business
issuer's internal control over financial reporting; and
5. The small business issuer's other certifying officer(s) and I have
disclosed, based on our most recent evaluation of internal control
over financial reporting, to the small business issuer's auditors
and the audit committee of the small business issuer's board of
directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the
design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
small business issuer's ability to record, process, summarize
and report financial information; and
b. Any fraud, whether or not material, that involves management
or other employees who have a significant role in the small
business issuer's internal control over financial reporting.
Date: July 5, 2006 By: /s/ Leonard Stella
------------------
Leonard Stella
Chief Executive Officer
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<title>Federal Register, Volume 65 Issue 86 (Wednesday, May 3, 2000)</title>
</head>
<body><pre>
[Federal Register Volume 65, Number 86 (Wednesday, May 3, 2000)]
[Notices]
[Page 25758]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 00-11028]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-432]
Certain Semiconductor Chips With Minimized Chip Package Size and
Products Containing Same; Notice of Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Institution of investigation pursuant to 19 U.S.C. 1337.
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SUMMARY: Notice is hereby given that a complaint was filed with the
U.S. International Trade Commission on March 28, 2000, under section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of
Tessera, Inc., of San Jose, California. Letters supplementing the
complaint were filed on April 14, 2000 and April 19, 2000. The
complaint, as supplemented, alleges violations of section 337 in the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain
semiconductor chips with minimized chip package size and products
containing same by reason of infringement of claims 6 and 22 of U.S.
Letters Patent 5,679,977, and claims 1, 3, and 11 of U.S. Letters
Patent 5,852,326. The complaint further alleges that an industry in the
United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an
investigation and, after the investigation, issue a permanent limited
exclusion order and a permanent cease and desist order.
ADDRESSES: The complaint and supplements, except for any confidential
information contained therein, are available for inspection during
official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the
Secretary, U.S. International Trade Commission, 500 E Street, S.W.,
Room 112, Washington, D.C. 20436, telephone 202-205-2000. Hearing-
impaired individuals are advised that information on this matter can be
obtained by contacting the Commission's TDD terminal on 202-205-1810.
Persons with mobility impairments who will need special assistance in
gaining access to the Commission should contact the Office of the
Secretary at 202-205-2000. General information concerning the
Commission may also be obtained by accessing its internet server
(<a href="http://www.usitc.gov">http://www.usitc.gov</a>).
FOR FURTHER INFORMATION CONTACT: Benjamin D. M. Wood, Office of Unfair
Import Investigations, U.S. International Trade Commission, telephone
202-205-2582.
Authority: The authority for institution of this investigation
is contained in section 337 of the Tariff Act of 1930, as amended,
and in section 210.10 of the Commission's Rules of Practice and
Procedure, 19 C.F.R. 210.10 (1999).
Scope of Investigation: Having considered the complaint, the U.S.
International Trade Commission, on April 27, 2000, ordered that--
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of
1930, as amended, an investigation be instituted to determine whether
there is a violation of subsection (a)(1)(B) of section 337 in the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain
semiconductor chips with minimized chip package size or products
containing same by reason of infringement of claims 6 or 22 of U.S.
Letters Patent 5,679,977 or claims 1, 3, or 11 of U.S. Letters Patent
5,852,326, and whether an industry in the United States exists as
required by subsection (a)(2) of section 337.
(2) For the purpose of the investigation so instituted, the
following are hereby named as parties upon which this notice of
investigation shall be served:
(a) The complainant is--Tessera, Inc., 3099 Orchard Drive, San
Jose, California 95134.
(b) The respondents are the following companies alleged to be in
violation of section 337, and are the parties upon which the complaint
is to be served:
Texas Instruments, Inc., 13500 North Central Expressway, Dallas, Texas
75243.
Sharp Corporation, 22-22 Nagaike-cho, Abeno-ku, Osaka, Japan.
Sharp Electronics Corporation, 1 Sharp Plaza, Mahwah, New Jersey 07430.
(c) Benjamin D. M. Wood, Office of Unfair Import Investigations,
U.S. International Trade Commission, 500 E Street, S.W., Room 401-I,
Washington, D.C. 20436, who shall be the Commission investigative
attorney, party to this investigation; and
(3) For the investigation so instituted, the Honorable Sidney
Harris is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be
submitted by the named respondents in accordance with section 210.13 of
the Commission's Rules of Practice and Procedure, 19 CFR 210.13.
Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be
considered by the Commission if received no later than 20 days after
the date of service by the Commission of the complaint and notice of
investigation. Extensions of time for submitting responses to the
complaint will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each
allegation in the complaint and in this notice may be deemed to
constitute a waiver of the right to appear and contest the allegations
of the complaint and this notice, and to authorize the administrative
law judge and the Commission, without further notice to the respondent,
to find the facts to be as alleged in the complaint and this notice and
to enter both an initial determination and a final determination
containing such findings, and may result in the issuance of a limited
exclusion order or a cease and desist order or both directed against
such respondent.
Issued: April 27, 2000.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 00-11028 Filed 5-2-00; 8:45 am]
BILLING CODE 7020-02-P
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Document Headings
Document headings vary by document type but may contain the following:
- the agency or agencies that issued and signed a document
- the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to
- the agency docket number / agency internal file number
- the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions
See the Document Drafting Handbook for more details.
###### Department of Transportation
###### Surface Transportation Board
- [Docket No. FD 35445]
Pursuant to a written trackage rights agreement dated October 8, 2010, CSX Transportation, Inc. (CSXT) has agreed to grant nonexclusive overhead trackage rights to Louisville & Indiana Railroad Company (L&I) over CSXT's lines of railroad as follows: (1) on CSXT's Louisville Secondary, extending between the point of connection with CSXT's trackage and L&I's trackage at CSXT milepost QSL 4.0 and between the point of connection with CSXT's Louisville Secondary with CSXT's Indianapolis Terminal Subdivision at ( print page 72870) CP IU via Meridian Wye at milepost QSL 0.0, a distance of 4.0 miles, then via either: (a) CSXT's Indianapolis Terminal Subdivision extending between milepost QI 283.9 at CP IU and milepost QS 12.5 at CP AN at the west end of Avon Yard, a distance of approximately 12.5 miles; or (b)(i) CSXT's Indianapolis Terminal Subdivision extending between milepost QI 283.9 at CP IU and milepost QS 0.9 at CP IJ, (ii) the Crawfordsville Branch extending between milepost QSC 0.7 at CP IJ and milepost QSC 8.6 at CP South Hunt and, (iii) CXST's Indianapolis Terminal Subdivision extending between milepost QS 7.8 at South Hunt and milepost QS 12.5 at CP AN at the west end of Avon Yard, a distance of approximately 13.5 miles; and (2) CSXT's Louisville Secondary extending between milepost QSL 4.0 and the point of connection with the Indianapolis Belt Subdivision via Dale southeast wye or Dale northeast wye at milepost QSL 1.7, a distance of 2.3 miles, then via either CSXT's: (a)(i) Indianapolis Belt Subdivision extending between milepost QIB 5.9 at Dale and milepost QIB 3.2 at CP Woods; (ii) Crawfordsville Branch extending between milepost QSC 1.6 at CP Woods and milepost QSC 8.6 at South Hunt; and (iii) Indianapolis Terminal Subdivision extending between milepost QS 7.8 at South Hunt and milepost QS 12.5 at CP AN at the west end of Avon Yard, a distance of approximately 14.6 miles; or (b)(i) Indianapolis Belt Subdivision extending between milepost QIB 5.9 at Dale and milepost QIB 2.9 at CP 1; and (ii) Indianapolis Terminal Subdivision extending between milepost QS 1.6 at CP 1 and milepost QS 12.5 at CP AN at the west end of Avon Yard, a distance of approximately 13.9 miles.[1] The trackage rights include Avon Yard trackage as designated by the CSXT Avon Yardmaster at the time of each movement.
The transaction is expected to be consummated on or after December 12, 2010, 30 days after the exemption was filed. The purpose of the trackage rights agreement is to facilitate L&I' s movement of certain traffic for the account of the Indiana Rail Road Company in an efficient and safe manner.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in *Norfolk and Western Railway—Trackage Rights—Burlington Northern, Inc.,* 354 I.C.C. 605 (1978), as modified in *Mendocino Coast Railway—Lease and Operate—California Western Railroad,* 360 I.C.C. 653 (1980).
This notice is filed under 49 CFR 1180.2(d)(7). If the notice contains false or misleading information, the exemption is void *ab initio.* Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Stay petitions must be filed by December 3, 2010 (at least 7 days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 35445, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Troy W. Garris, Weiner Brodsky Sidman Kider PC, 2904 Corporate Cir., Flower Mound, TX 75028.
Board decisions and notices are available on our Web site at *http://www.stb.dot.gov.*
Decided: November 19, 2010.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Jeffrey Herzig,
Clearance Clerk.
# Footnotes
1.  A redacted, executed trackage rights agreement between CSXT and L&I was filed with the notice of exemption. The unredacted version, as required by 49 CFR 1180.6(a)(7)(ii), was concurrently filed under seal along with a motion for protective order. The motion is being addressed in a separate decision.
Back to Citation
[FR Doc. 2010-29740 Filed 11-24-10; 8:45 am]
BILLING CODE 4915-01-P
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Exhibit
4.5
SERIES
A COMMON STOCK PURCHASE WARRANT
PRESIDIO
PROPERTY TRUST, INC.
Warrant
Shares: [_______] Original
Issue Date: [______], 2021
THIS
SERIES A COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time) on [ ]1,
2026 (the “Termination Date”) but not thereafter, to subscribe for and purchase from PRESIDIO PROPERTY TRUST, INC.,
a Maryland corporation (the “Company”), up to [ ] shares (as subject to adjustment hereunder, the “Warrant
Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security held in book-entry
form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered holder of this
Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency
Agreement, in which case this sentence shall not apply.
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Charter”
means the Company’s Articles of Amendment and Restatement, as amended, supplemented, restated or corrected, from time to time.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Series A common stock of the Company, par value $0.01 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
1
Insert the date that is the five year anniversary of the Initial Exercise Date; provided, however, that, if such date is not a
Trading Day, insert the immediately following Trading Day.
-1-
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Initial
Exercise Date” means the date that a registration statement on Form S-11 registering the Warrant Shares has been declared effective
by the Commission.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer
Agent” means Direct Transfer, LLC, the current transfer agent of the Company, with a mailing address of One Glenwood Ave.,
Suite 1001, Raleigh, NC 27603 and a facsimile number of (919) 481-6222, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant
Agency Agreement” means that certain warrant agency agreement, dated on or about the Initial Exercise Date, between the Company
and the Warrant Agent.
“Warrant
Agent” means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company as dividends pursuant to the registration statement
on Form S-11 filed with the SEC on [ ].
-2-
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States
bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original
Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised
in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the
date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a
portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $7.00, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A)
= as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and
delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in
Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the
Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable
Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered
within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day)
pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise
is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day;
-3-
(B)
= the Exercise Price of this Warrant, as adjusted hereunder; and
(X)
= the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position
contrary to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants, and otherwise by physical delivery of a certificate (if
such shares are certificated), registered in the Company’s share register in the name of the Holder or its designee, for the number
of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1)
Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard
Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains
outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date
of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
-4-
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Intentionally omitted.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that
may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary
to ensure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially or constructively
owned by such Holder do not exceed either a total number of shares of (i) Common Stock in excess of the Common Stock Ownership Limit
(as defined and determined in accordance with the Charter) or (ii) Capital Stock (as defined in the Charter) in excess of the Aggregate
Stock Ownership Limit (as defined and determined in accordance with the Charter, and together with the Common Stock Ownership Limit,
the “Ownership Limits”), or otherwise cause the Company to fail to qualify as a REIT (as defined in the Charter),
unless the Company’s Board of Directors has, in its sole discretion, granted the Holder a waiver from the stock ownership limitations
set forth in the Charter. The parties hereto acknowledge that certain listing standards of the Trading Market may generally require the
Company to obtain the approval of its stockholders before entering into certain transactions that potentially result in the issuance
of 20% or more of its outstanding Common Stock; accordingly, in the event of an exercise of this Warrant that would result in the total
number of shares of Common Stock then beneficially owned by a Holder and any Affiliate of such Holder exceeding 19.99% of the total number
of then issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise),
the Company shall, at its discretion, either obtain stockholder approval of such issuances or upon settlement of the exercise of such
Warrant deliver cash in lieu of any shares otherwise deliverable upon exercise of such Warrant in excess of such limitation, in accordance
with the provisions of Section 2(d) hereof. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
f)
Automatic Issuance on the Termination Date. If this Warrant has not been exercised on or prior to the Termination Date, the Holder
shall be issued one-tenth (1/10th) of one share of Common Stock (the “Automatic Issuance”) within five
Business Days after the Termination Date. No fractional shares or scrip representing fractional shares shall be issued upon the Automatic
Issuance. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall
round down to the next whole share.
-5-
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any Warrants or shares of Common Stock issued by the Company upon exercise
of the Warrants), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly
or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of
its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock,
(iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off,
merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of
the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or
party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance
with the provisions of this Section 3(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver
to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar
in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity
(or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant
to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction,
the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor
Entity had been named as the Company herein.
-6-
c)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock issued and outstanding.
d)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend or other distribution (other than cash or stock
dividends to the extent that such declaration or payment is necessary to maintain the Company’s status as a REIT, or to avoid the
payment by the Company of any federal or state income or excise tax for any taxable year) on the Common Stock, (B) the Company shall
declare a special nonrecurring cash dividend on or a redemption of the Common Stock (other than in accordance with Article VII of the
Charter), (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all
or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up
of the affairs of the Company, then, in each case, the Company shall cause to be delivered personally, by mail, facsimile, email
or as otherwise permitted by applicable law to the Holder at its last address, facsimile number or email address, as
applicable, as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period
commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly
set forth herein.
-7-
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
-8-
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its Charter or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to
obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
-9-
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by facsimile or e-mail, or sent by a nationally recognized
overnight courier service, addressed to the Company, at Presidio Property Trust, Inc., 4995 Murphy Canyon Rd., Suite 300, San Diego,
CA 92123, Attention: Jack K. Heilbron, email address: jheilbron@presidiopt.com, or such other email address or address as the Company
may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the
Company hereunder shall be in writing and delivered personally, by facsimile or e-mail, or sent by a nationally recognized overnight
courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing on the books of
the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the
date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or via e-mail at the e-mail
address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or via e-mail at the e-mail address set forth in this
Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading
Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the
party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
-10-
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
-11-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
PRESIDIO
PROPERTY TRUST, INC.
By:
Name:
Title:
-12-
NOTICE
OF EXERCISE
To:
PRESIDIO PROPERTY TRUST, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
-13-
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: ___________________________ ___________________________________
(Please
Print)
Address: _________________________ ___________________________________
Phone
Number: (Please
Print)
Email
Address: ______________________________________
______________________________________
Dated:
_______________ __, ______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
-14-
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Document
EXECUTION VERSION
Second Amendment to
Note Purchase and Private Shelf Agreement
This Second Amendment to Note Purchase and Private Shelf Agreement (this “Second Amendment”) dated as of August 31, 2021 is by and among Alexander & Baldwin, LLC, a Delaware limited liability company (the “Company”), Alexander & Baldwin, LLC, Series R (“Series R”), Alexander & Baldwin, LLC, Series T (“Series T”), Alexander & Baldwin, LLC, Series M (“Series M” and together with the Company, Series R and Series T, the “CoIssuers”), Alexander & Baldwin, Inc., a Hawaii corporation (“Holdings”), each other Guarantor (as defined in the Note Purchase Agreement defined below) which is a signatory to this Second Amendment, AIG Asset Management (U.S.), LLC, a Delaware limited liability company (“AIG”), and each of the holders of the Series 2017-1 Notes referred to below that is a signatory to this Second Amendment (collectively, the “Noteholders”). The Co-Issuers, Holdings and the other Guarantors are collectively referred to herein as the “Credit Parties.”
Recitals:
A. The Credit Parties, AIG and the Noteholders have heretofore entered into a Note Purchase and Private Shelf Agreement dated December 20, 2017, as amended by the First Amendment dated as of March 5, 2018 (as so amended, the “Note Purchase Agreement”), relating to the issue and sale from time to time by the CoIssuers of their senior promissory notes, including the issue and sale on December 20, 2017 of the $25,000,000 4.30% Series 20171 Senior Notes, due December 20, 2029 (the “Series 2017-1 Notes”).
B. The Credit Parties, AIG and the Noteholders now desire to amend the Note Purchase Agreement in the respects, but only in the respects, hereinafter set forth, including the renewal of the Issuance Period and increase in the Maximum Shelf Facility Amount.
C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement unless herein defined or the context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts and things necessary to make this Second Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent to the effectiveness of this Second Amendment set forth in Section 3.1 hereof, and in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments.
Section 1.1. Subclause (c) of paragraph 1B(2) of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
(c) the aggregate principal amount of additional Shelf Notes (for clarity, in addition to the Series 2017-1 Notes) that may be issued hereunder is $125,000,000 (the “Maximum Shelf Facility Amount”);
Section 1.2. Paragraph 2B(2) of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
2B(2). Issuance Period. Shelf Notes may be issued and sold pursuant to this Agreement until the earlier of (i) August 31, 2024 (or if such date is not a Business Day, the Business Day next preceding such date) and (ii) the thirtieth day after AIG shall have given to the Co-Issuers, or the Co-Issuers shall have given to AIG, a written notice stating that they elect to terminate the issuance and sale of Shelf Notes pursuant to this Agreement (or if such thirtieth day is not a Business Day, the Business Day next preceding such thirtieth day). The period during which Shelf Notes may be issued and sold pursuant to this Agreement is herein called the “Issuance Period”.
Section 1.3. The flush paragraph following paragraph 5A(vi) of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
Together with each delivery of financial statements required by clauses (i) and (ii) above, Holdings and the Co-Issuers will deliver to each holder of Notes an Officer’s Certificate (a) setting forth computations showing (non)compliance with (I) the covenants in paragraphs 6A(1), 6A(2), 6A(3), 6A(4), 6A(5), 6A(6), 6B(2)(iii), 6B(2)(iv), 6B(3)(iv) and 6B(3)(v), and (II) any Incorporated Term requiring a calculation in order to determine compliance with such term (including with respect to each such covenant described in this clause (a), where applicable, a reconciliation from GAAP, as reflected in the financial statements then being furnished, to the calculation of such financial covenants, after giving effect to any change in accounting for Capitalized Lease Obligations which has occurred after June 29, 2012), and (b) stating that to the best of his or her knowledge, after due inquiry, there exists no Default or Event of Default, or if any such Default or Event of Default exists, specifying the nature and period of existence thereof and what action Holdings and the Co-Issuers propose to take with respect thereto.
Section 1.4. Paragraph 5G of the Note Purchase Agreement shall be and is hereby amended by inserting a new subheading after the existing heading which shall read “5G(1)
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Guarantees.” and by inserting a new Paragraph 5G(2) following the existing provisions to read as follows:
5G(2) Certain Releases. Without limiting the provisions of Paragraph 5G(1) above, the holders of the Notes agree that each of Grace and A&B II, LLC shall be automatically released from its obligations under the Multiparty Guaranty upon the consummation of the sale of all or substantially all of the business of Grace and its Subsidiaries to a Person other than Holdings or a Subsidiary or other Affiliate of Holdings in a transaction permitted under the terms of this Agreement, whether such sale is structured as the sale of all or substantially all of the assets of Grace and its Subsidiaries or as a sale of all or substantially all of the Equity Interests of Grace or of A&B II, LLC; provided that: (1) each of Grace and A&B II, LLC is, prior to or simultaneously with its release from the Multiparty Guaranty, released from any and all other Guarantees under all other Principal Credit Facilities; (2) no Default or Event of Default would exist immediately before or after giving effect to the release of Grace and A&B II, LLC from the Multiparty Guaranty; and (3) if any lender other than the holders of the Notes receives any consideration in connection with the release of Grace or A&B II, LLC from any Guarantee under any other Principal Credit Facility, then the holders of the Notes shall be paid an amount equal to their ratable share of such consideration concurrently therewith.
Section 1.5. Clause (i) of Paragraph 5G(1) of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
(i) it shall cause any Subsidiary of Holdings that incurs, guarantees or otherwise becomes liable on any Unsecured Debt under any Principal Credit Facility, concurrently upon any such incurrence, any such guarantee or becoming so liable (a) to become a party to the Multiparty Guaranty by executing and delivering to the holders of the Notes a Joinder Agreement, and (b) to deliver to the holders of the Notes such organization documents, resolutions and favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the Required Holders; and
Section 1.6. Paragraph 5H of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
5H. Most Favored Lender and Other Provisions. Each of Holdings and each Co-Issuer covenants that:
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5H(1) Limited Incorporated Terms. If at any time after the Second Amendment Effective Date any financial covenant or related definition under any Principal Credit Facility that addresses the same or similar matters as those addressed in any of paragraphs 6A(1) (Minimum Consolidated Shareholders’ Equity), 6A(2) (Fixed Charge Coverage Ratio), 6A(3) (Debt to Total Adjusted Asset Value), 6A(4) (Unsecured Debt to Unencumbered Income Producing Assets Value), 6A(5) (Secured Debt) or 6A(6) (Minimum Unencumbered Interest Coverage Ratio) of this Agreement, whether such provision under such Principal Credit Facility is characterized as a covenant or a default, becomes more restrictive under such Principal Credit Facility than the corresponding covenant or related definition contained in paragraphs 6A(1), 6A(2), 6A(3), 6A(4), 6A(5) or 6A(6), as applicable, hereof, then such more restrictive covenant, default or related definition (each, a “Limited Incorporated Term”) will automatically be incorporated into this Agreement and, once incorporated, may not thereafter be modified except pursuant to the requirements of paragraph 12C; provided that if, at any time after a Limited Incorporated Term is so incorporated into this Agreement, the lenders under such Principal Credit Facility agree to make such Limited Incorporated Term less restrictive under such Principal Credit Facility at a time when no event of default exists with regard to such Limited Incorporated Term and no waiver is in effect under such Limited Incorporated Term, then such less restrictive Limited Incorporated Term will automatically be incorporated into this Agreement; provided that in no event will this paragraph 5H(1) operate to make any of the covenants or related definitions contained in any of paragraphs 6A(1), 6A(2), 6A(3), 6A(4), 6A(5) or 6A(6) hereof less restrictive than as in effect upon giving effect to the Second Amendment.
5H(2) Incorporated Definitional Term. If at any time after the Second Amendment Effective Date the defined term “Applicable Cap Rates” under the Bank Credit Agreement is amended to increase any of the Applicable Cap Rates therein (the “Incorporated Definitional Term”), then the definition of Applicable Cap Rates hereunder will be automatically amended to be the same as the corresponding provision under the Bank Credit Agreement and, once incorporated, may not thereafter be modified except pursuant to the requirements of paragraph 12C; provided that in no event will this paragraph 5H(2) operate to reduce any of the Applicable Cap Rates under this Agreement to be lower than as in effect upon giving effect to the Second Amendment.
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The terms “Limited Incorporated Term” and “Incorporated Definitional Term” are referred to herein individually as an “Incorporated Term” and collectively as “Incorporated Terms”.
5H(3) Notice of Incorporated Terms and Amendments. The Co-Issuers shall provide a written notice to each holder of Notes within two (2) Business Days after an Incorporated Term is included in the Bank Credit Agreement or other Principal Credit Facility, as applicable, referring to the provisions of this paragraph 5H and setting forth a reasonably detailed description of such Incorporated Term (including any defined terms used therein) and the corresponding automatic amendment to this Agreement. At the request of the Required Holders, the Co-Issuers and Holdings will promptly execute and deliver at the Co-Issuers’ expense an amendment to this Agreement in form and substance satisfactory to the Required Holders evidencing the amendment of this Agreement occurring pursuant to this paragraph 5H, provided that the execution and delivery of such amendment shall not be a precondition to the automatic effectiveness of such amendment provided for hereby.
5H(4) Certain Termination of Incorporation. If any Principal Credit Facility is either (x) terminated or (y) reduced to an aggregate principal or commitment amount of less than $40,000,000, in each case, at a time when no event of default exists and no waiver is in effect under any Incorporated Term of such Principal Credit Facility, then any and all Incorporated Terms previously incorporated by reference from such Principal Credit Facility shall, upon such termination or reduction, as the case may be, automatically no longer be incorporated into this Agreement.
Section 1.7. Paragraph 6A of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
6A. Financial Covenants. Holdings will not permit:
6A(1). Minimum Consolidated Shareholders’ Equity. The Consolidated Shareholders’ Equity at any time to be less than the sum of (i) $865,575,000, plus (ii) 75% of the net proceeds received from issuances of Holdings’ Equity Interests after June 30, 2021.
6A(2). Fixed Charge Coverage Ratio. The ratio of Adjusted EBITDA to Fixed Charges to be less than 1.50 to 1.00 at the end of any fiscal quarter.
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6A(3). Total Debt to Total Adjusted Asset Value Ratio. The Total Debt to Total Adjusted Asset Value Ratio at any time to exceed 0.60 to 1.00; provided, that if a Significant Acquisition is consummated during any fiscal quarter then the Total Debt to Total Adjusted Asset Value Ratio may exceed 0.60 to 1.00 during the period from the consummation of such Significant Acquisition through and including the fourth fiscal quarter ending after such consummation so long as such ratio does not exceed 0.65 to 1.00.
6A(4). Unsecured Debt to Unencumbered Income Producing Assets Value Ratio. The Unsecured Debt to Unencumbered Income Producing Assets Value Ratio at any time to exceed 0.60 to 1.00; provided, that if a Significant Acquisition is consummated during any fiscal quarter then the Unsecured Debt to Unencumbered Income Producing Assets Value Ratio may exceed 0.60 to 1.00 during the period from the consummation of such Significant Acquisition through and including the fourth fiscal quarter ending after such consummation so long as such ratio does not exceed 0.65 to 1.00.
6A(5). Secured Debt to Total Adjusted Asset Value Ratio. The Secured Debt to Total Adjusted Asset Value Ratio at any time to exceed 0.40 to 1.00.
6A(6). Minimum Unencumbered Interest Coverage Ratio. The ratio of Unencumbered EBITDA to Unencumbered Interest Expense to be less than 1.75 to 1.00 at the end of any fiscal quarter.
Subject to the provisions of the last paragraph of each of the definitions of “Total Adjusted Asset Value” and “Unencumbered Income Producing Assets Value” herein, for purposes of all calculations made under the financial covenants set forth in paragraph 6A(2) through and including paragraph 6A(6) for an applicable period, (i) if during such period Holdings, any Co-Issuer or any other Subsidiary shall have consummated an acquisition of a Significant Subsidiary or a Significant Line of Business, (x) Adjusted EBITDA or Unencumbered EBITDA, as the case may be, for such period shall be calculated after giving pro-forma effect thereto as if such transaction occurred on the first day of such period; provided, that if the aggregate purchase price for any such acquisition is greater than or equal to $25,000,000, Adjusted EBITDA or Unencumbered EBITDA, as the case may be, shall only be calculated on a pro-forma basis to the extent such pro-forma calculations are based on audited financial statements or
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other financial statements reasonably satisfactory to the Required Holders and (y) any Debt incurred or assumed by any Credit Party or Subsidiary (including the Person or property acquired) in connection with such transaction and any Debt of the Person or property acquired which is not retired in connection with such transaction (1) shall be deemed to have been incurred as of the last day of the previous period and (2) if such Debt has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this paragraph determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of determination, and (ii) if during such period Holdings, any Co-Issuer or any other Subsidiary shall have consummated a disposition of all or substantially all of the assets of Holdings, any Co-Issuer or any other Subsidiary or of a majority of the equity interests of a Subsidiary or of a Significant Line of Business, (x) Adjusted EBITDA or Unencumbered EBITDA, as the case may be, for such period shall be calculated after giving pro-forma effect thereto as if such transaction occurred on the last day of the previous period and (y) any Debt which is retired in connection with such transaction shall be excluded and deemed to have been retired as of the last day of the previous period.
Section 1.8. The lead-in language to Paragraph 6B(3) of the Note Purchase Agreement shall be and is hereby amended and restated as follows:
6B(3). Merger and Sale of Assets. Merge with or into or consolidate with any other Person or sell, lease, transfer or otherwise dispose of its assets (including, in each case, pursuant to a Division), except that so long as no Default under paragraph 5I would result therefrom:
Section 1.9. The Note Purchase Agreement shall be and is hereby amended be inserting the following new paragraphs 6F and 6G in their proper numerical order:
6F. Subsidiary Debt. Holdings shall not permit any Subsidiary (other than a Co-Issuer) to incur, guarantee or otherwise become liable with respect to any Unsecured Debt, other than Unsecured Debt under a Principal Credit Facility to the extent such Subsidiary becomes an Additional Guarantor in accordance with paragraph 5G.
6G. Transfer of Assets to Subsidiaries. Holdings shall not, and shall not permit any other Co-Issuer to, transfer (other than in the ordinary course of business or with respect to similarly situated real estate companies) any assets to a Subsidiary for the
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sole purpose of improving the credit position of such Subsidiary in connection with a financing transaction, except that this restriction shall not apply to any asset the financing of which constitutes Non-Recourse Debt.
Section 1.10. Paragraph 10B of the Note Purchase Agreement shall be and is hereby amended by amending and restating the following definitions, as follows:
“Adjusted EBITDA” means Consolidated Net Income Before Taxes (for the avoidance of doubt, before deduction for non-controlling interests in any Subsidiary of Holdings) for the period of four consecutive fiscal quarters ended on any date of determination plus, to the extent deducted in the calculation thereof, (i) Consolidated Interest Expense, (ii) depreciation and amortization expenses, (iii) all other non-cash expenses and charges, (iv) non-recurring one-time cash expenses incurred in accordance with GAAP in connection with or as a result of the Triggering Event; provided that the aggregate amount added back under this clause (iv) for all periods shall not exceed $100,000,000 and shall only be permitted to be added back if incurred no later than 18 months after the Triggering Event, (v) any gains or losses resulting from the disposition of any asset of Holdings or any Subsidiary outside of the ordinary course of business including, any net loss from discontinued operations and any net loss on the disposal of discontinued operation, (vi) fees, expenses, premiums and other charges in connection with the issuance of Equity Interests, any refinancing transaction, any amendment or other modification of any debt instrument, the making of any acquisition or any disposition (other than a disposition of an asset in the ordinary course of business), in each case whether or not consummated, (vii) any income or gain and any loss or expense in each case resulting from early extinguishment of Debt, and (viii) any income or gain or any expense or loss resulting from a Swap Contract (as such term is defined in the Bank Credit Agreement), including by virtue of a termination thereof; provided that Adjusted EBITDA shall exclude non-cash gains or losses resulting from the write-up or write-down of assets.
“Applicable Cap Rates” means (i) 6.00% for industrial Investment Properties, (ii) 6.50% for retail Investment Properties, (iii) 6.50% for office Investment Properties, (iv) 6.00% for Leased Non-Agricultural Land which has industrial improvements thereon and is located in the State of Hawaii, (v) 6.50% for Leased Non-Agricultural Land which has retail improvements thereon and is located in the State of Hawaii, and (vi) 6.50% for Leased Non-
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Agricultural Land which has office improvements thereon and is located in the State of Hawaii.
“Bank Credit Agreement” means that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2021, by and among the Company and the other Borrowers (as defined therein), as the borrowers, the Guarantors (as defined therein), Bank of America, N.A., as agent, and the other lenders and financial institutions party thereto, as the same may be amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time.
“Change of Control” means:
(a) the acquisition, after the date hereof, by any “person” or “group” (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934) (but excluding any employee benefit plan of such person or persons or their respective subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) of outstanding shares of voting stock of Holdings representing more than 50% of voting control of Holdings;
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Holdings cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c) the failure of Holdings to directly or indirectly own 100% of the Equity Interests of each Co-Issuer, Grace or any other Borrower (as defined in the Bank Credit Agreement) at any time; provided that the failure of Holdings to directly or indirectly own 100% of the Equity Interests of any Co-Issuer, Grace or any other Borrower (as defined in the Bank Credit Agreement) as a result of the sale or other transfer of Equity Interests in A&B for purposes of acquiring real estate shall not result in a Change of Control so
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long as (i) Holdings continues to (x) directly or indirectly own more than 50% of the Equity Interests in A&B and (y) control A&B (by possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of A&B, whether through the ownership of voting securities, by contract or otherwise) and (ii) A&B continues to directly or indirectly own 100% of the Equity Interests in each Co-Issuer, Grace and the other Borrowers (as defined in the Bank Credit Agreement).
“Consolidated Interest Expense” means, for any period of determination, for Holdings and its Subsidiaries on a consolidated basis the sum of total interest expense determined in accordance with GAAP (including for the avoidance of doubt capitalized interest and imputed interest in respect of Capitalized Lease Obligations) for such period.
“Consolidated Net Income” means, for any period of determination, the net income or loss (excluding extraordinary gains or losses) of Holdings and its Subsidiaries on a consolidated basis for such period on a consolidated basis, as determined in accordance with GAAP.
“Consolidated Net Income Before Taxes” means, for any period of determination thereof, Consolidated Net Income for such period plus the sum of all deferred and current federal, state, local and foreign income taxes and similar taxes, including any franchise taxes or other taxes based on income, profits or capital that are deducted in accordance with GAAP in computing Consolidated Net Income for such period.
“Consolidated Shareholders’ Equity” means, at any time of determination thereof, for Holdings and its Subsidiaries on a consolidated basis determined in accordance with GAAP, the sum of (a) consolidated total equity, and (b) any consolidated mezzanine equity (or other temporary or non-permanent equity); provided that any determination of Consolidated Shareholders’ Equity shall exclude (i) all non-cash adjustments to Consolidated Shareholders’ Equity resulting from the application of the Financial Accounting Standards Board Accounting Standards Codification Topic 715, Retirement Benefits, and (ii) to the extent otherwise included under the immediately preceding clauses (a) and (b), non-controlling interests in any Subsidiary of Holdings.
“Debt” means, as to any Person at the time of determination thereof without duplication, (i) any indebtedness of
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such Person (A) for borrowed money, including commercial paper and revolving credit lines, (B) evidenced by bonds, debentures or notes or otherwise representing extensions of credit, whether or not representing obligations for borrowed money or (C) for the payment of the deferred purchase price of property or services, except trade accounts payable and accrued expenses arising in the ordinary course of business, regardless of when such liability or other obligation is due and payable, (ii) Capitalized Lease Obligations of such Person, (iii) Guarantees, assumptions and endorsements by such Person (other than endorsements of negotiable instruments for collection in the ordinary course of business) of Debt of another Person, and (iv) Debt of the types described in the immediately preceding clauses (i) through (iii) of another Person, whether or not assumed, that is secured by Liens on the property or other assets of such Person. “Debt” shall not include a reimbursement obligation incurred in connection with a standby letter of credit issued (i) in support of trade payables or (ii) as condition to receiving (A) a governmental entitlement, (B) a performance bond or (C) a performance guaranty, in each case under the immediately preceding clauses (i) and (ii) to the extent such reimbursement obligation is contingent and to the extent the aggregate amount of such standby letters of credit does not exceed $10,000,000 at any time outstanding.
“Fixed Charges” means Consolidated Interest Expense for the period of four consecutive fiscal quarters ended on any date of determination, plus preferred dividends of Holdings accrued during such period, plus scheduled principal payments (excluding (i) balloon payments, (ii) any scheduled principal payments that represent amortization of the Series A, B, C, F and G Notes outstanding under the Existing Note Purchase Agreement as of the Second Amendment Effective Date, and (iii) amounts outstanding under the Bank Credit Agreement that are classified as current liabilities under GAAP, but only if no Default or Event of Default then exists under this Agreement or the Bank Credit Agreement) of Holdings and its Subsidiaries for the period of four consecutive fiscal quarters next succeeding such date of determination.
“Guarantors” means, collectively, Holdings, A&B, A&B II, LLC, Grace and each Additional Guarantor; provided that “Guarantors” shall exclude A&B II, LLC and Grace if such Persons have been released from the Multiparty Guaranty pursuant to paragraph 5G.
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“NOI from Investment Properties” means, for any period of determination thereof for Holdings and its Subsidiaries on a consolidated basis, the consolidated GAAP revenue attributable to all Investment Properties less operating expenses, real property taxes, taxes on gross revenue, common area maintenance expenses, ground and other rents, other rental expenses, and charges for property management related thereto for the most recently ended two fiscal quarters multiplied by two, but in no event shall take into account tenant deposits, refunds of tenant deposits, tenant improvements paid for by Holdings or its Subsidiaries, reimbursement by tenants to Holdings or its Subsidiaries for tenant improvements paid for by Holdings or its Subsidiaries, bad debt expense and charges related to cash-basis tenants, gains or losses from the sales of leased property, depreciation and amortization, overhead allocations that are not directly associated with the property, straight-line lease adjustments (including amortization of lease incentives), amortization of favorable/unfavorable lease assets/liabilities, or state and federal income taxes.
“NOI from Leased Non-Agricultural Land” means, for any period of determination thereof for Holdings and its Subsidiaries, the consolidated GAAP revenue attributable to all Leased Non-Agricultural Land less operating expenses, real property taxes, taxes on gross revenue, and charges for property management related thereto for the most recently ended two fiscal quarters multiplied by two, but in no event shall take into account tenant deposits, refunds of tenant deposits, tenant improvements paid for by Holdings or its Subsidiaries, reimbursement by tenants to Holdings or its Subsidiaries for tenant improvements paid for by Holdings or its Subsidiaries, allowances for bad debts, gains or losses from the sales of leased property, depreciation and amortization, overhead allocations that are not directly associated with the property, straight-line lease adjustments (including amortization of lease incentives), amortization of favorable/unfavorable lease assets/liabilities, or state and federal income taxes.
“NOI from Unencumbered Investment Properties” means, for any period of determination thereof for Holdings and its Subsidiaries on a consolidated basis, the consolidated GAAP revenue attributable to Unencumbered Investment Properties less operating expenses, real property taxes, taxes on gross revenue, common area maintenance expenses, ground and other rents, other rental expenses, and charges for property management related thereto for the most recently ended two fiscal quarters multiplied
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by two, but in no event shall take into account tenant deposits, refunds of tenant deposits, tenant improvements paid for by Holdings or its Subsidiaries, reimbursement by tenants to Holdings or its Subsidiaries for tenant improvements paid for by Holdings or its Subsidiaries, allowances for bad debts, gains or losses from the sales of leased property, depreciation and amortization, overhead allocations that are not directly associated with the property, straight-line lease adjustments (including amortization of lease incentives), amortization of favorable/unfavorable lease assets/liabilities, or state and Federal income taxes.
“NOI from Unencumbered Leased Non-Agricultural Land” means, for any period of determination thereof for Holdings and its Subsidiaries, the consolidated GAAP revenue attributable to all Unencumbered Leased Non-Agricultural Land less operating expenses, real property taxes, taxes on gross revenue, and charges for property management related thereto for the most recently ended two fiscal quarters multiplied by two, but in no event shall take into account tenant deposits, refunds of tenant deposits, tenant improvements paid for by Holdings or its Subsidiaries, reimbursement by tenants to Holdings or its Subsidiaries for tenant improvements paid for by Holdings or its Subsidiaries, allowances for bad debts, gains or losses from the sales of leased property, depreciation and amortization, overhead allocations that are not directly associated with the property, straight-line lease adjustments (including amortization of lease incentives), amortization of favorable/unfavorable lease assets/liabilities, or state and federal income taxes.
“Non-Recourse Debt” means, with respect to any Credit Party or Subsidiary, any (a) Debt that is not Recourse Debt, and (b) fully recourse mortgage and similar financings obtained by a Subsidiary of the Company or of any LLC Series if the mortgaged real property constitutes substantially all of the assets of such Subsidiary and such financings are not Guaranteed by any Credit Party (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, and other similar exceptions to recourse liability); provided that solely with respect to Paragraph 6G, Non-Recourse Debt shall also include loans and credit facilities at all times during which the recourse portion of such loans and credit facilities (including commitments in respect thereof) is not in excess of $40,000,000.
“Total Adjusted Asset Value” means, at any date of determination thereof, without duplication, (a) cash and cash
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equivalents of Holdings and its Subsidiaries, plus (b) NOI from Investment Properties divided by the Applicable Cap Rates, plus (c) NOI from Leased Non-Agricultural Land divided by the Applicable Cap Rates, plus (d) the book value (net of impairments) of Agricultural Land, plus (e) the book value (net of impairments) of Development Real Properties owned by Holdings or any of its Subsidiaries, or by any other entity (other than a Subsidiary) in which Holdings or any of its Subsidiaries owns an Equity Interest (an “Unconsolidated Joint Venture Entity”), to be included in the determination of “Total Adjusted Asset Value” in an amount (i) in the case of Development Real Properties owned by Holdings or any of its Subsidiaries, equal to such book value (provided that with respect to any Subsidiary of the Company (or any LLC Series thereof) that is not wholly-owned, directly or indirectly, by the Company (or any LLC Series thereof) (a “Consolidated Joint Venture Entity”), such book value shall be decreased by an amount equal to the noncontrolling interest in such Consolidated Joint Venture Entity as reflected on the most recent consolidated balance sheet of Holdings required to be delivered pursuant to Paragraph 5A(i) or (ii)), and (ii) in the case of Development Real Properties owned by an Unconsolidated Joint Venture Entity, equal to the book value (net of impairments) of Holdings’ direct or indirect investment in such Unconsolidated Joint Venture Entity, provided that the aggregate amount under this clause (e) shall not contribute more than 30% of Total Adjusted Asset Value plus (f) the value of the business of A&B II, LLC and its Subsidiaries (which, (I) during the period from August 31, 2021 through and including February 28, 2023 shall be deemed to be equal to the book value (net of impairments) of the assets of A&B II, LLC and its Subsidiaries, and (II) at all times after such period shall be deemed to be equal to Adjusted EBITDA (but calculated solely with respect to A&B II, LLC and its Subsidiaries for the then or most recently ended period of four consecutive fiscal quarters) divided by 16.67%), provided that the portion of the Total Adjusted Asset Value derived from this clause (f) shall not exceed 20% of the total amount of the Total Adjusted Asset Value, plus (g) the book value (net of impairments) of all watershed land, conservation land and pasture land of Holdings and its Subsidiaries not included in clauses (a) through (f) above, plus (h) the book value (net of impairments) of all assets of Holdings and its Subsidiaries not included in clauses (a) through (g) above, provided that (I) the aggregate book value of such other assets shall be included in the determination of Total Adjusted Asset Value only to the extent it comprises 10% or less of the Total Adjusted Asset Value, and (II) the portion of Total Adjusted Asset
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Value derived from clauses (d) through (h) of this definition shall not exceed 25% of the total amount of the Total Adjusted Asset Value.
Notwithstanding anything to the contrary in the foregoing portions of this definition or in the final paragraph of paragraph 6A (immediately preceding paragraph 6B), any asset or Person (together with such Person’s Subsidiaries) acquired by Holdings or any of its Subsidiaries, for purpose of determining the “Total Adjusted Asset Value,” shall be valued at book value (net of impairments) during the period from the consummation of such acquisition until the last day of the first four full fiscal quarters occurring after the consummation of such acquisition.
“Triggering Event” means Holdings’ and its Subsidiaries’ defeasance of some or all of their Plans on or before December 31, 2022.
“Unencumbered EBITDA” means, for any period, with respect to Holdings and its Subsidiaries on a consolidated basis, Adjusted EBITDA derived from (a) Unencumbered Investment Properties, (b) Unencumbered Leased Agricultural Land, (c) Adjusted EBITDA generated from development real properties and agricultural land but only to the extent such assets are Unencumbered Agricultural Division Assets, (d) Adjusted EBITDA calculated solely with respect to A&B II, LLC and its Subsidiaries so long as no Debt of A&B II, LLC or its Subsidiaries is or was secured by a consensual Lien during such period, and (e) other Adjusted EBITDA generated from any other unencumbered assets of Holdings and its Subsidiaries.
“Unencumbered Income Producing Assets Value” means, at any time of determination thereof, without duplication, the sum of (a) Unrestricted Cash, plus (b) the NOI from Unencumbered Investment Properties divided by the Applicable Cap Rates, plus (c) the NOI from Unencumbered Leased Non-Agricultural Land divided by the Applicable Cap Rates, plus (d) the book value (net of impairments) of Agricultural Land, plus (e) the value of the Grace Pacific business (which, (I) during the period from August 31, 2021 through and including February 28, 2023 shall be deemed to be equal to the book value (net of impairments) of the assets of A&B II, LLC and its Subsidiaries, and (II) at all times after such period shall be deemed to be equal to Adjusted EBITDA (but calculated solely with respect to A&B II, LLC and its Subsidiaries for the then or most recently ended period
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of four consecutive fiscal quarters) divided by 16.67%), provided that the book value of any individually encumbered assets shall be excluded from the calculation of Unencumbered Income Producing Assets Value if, at such time of determination or at any time during such then or most recently ended period of four consecutive fiscal quarters, any Debt of A&B II, LLC or its Subsidiaries is or was secured by a consensual Lien, and provided further that the portion of the Unencumbered Income Producing Assets Value derived from this clause (e) shall not exceed 20% of the total amount of the Unencumbered Income Producing Assets Value, plus (f) the net book value (i.e., the book value net of liabilities, whether secured or unsecured) of Development Real Properties owned by Holdings or any of its Subsidiaries, to be included in the determination of “Unencumbered Income Producing Assets Value” in an amount, in the case of Development Real Properties owned by Holdings or any of its Subsidiaries, equal to such net book value (provided that with respect to any Consolidated Joint Venture Entity, such book value shall be decreased by an amount equal to the noncontrolling interest in such Consolidated Joint Venture Entity as reflected on the most recent consolidated balance sheet of Holdings required to be delivered pursuant to Paragraph 5A(i) or (ii)), provided that the aggregate of the net book value of the assets described in this clause (f) shall be included in the determination of Unencumbered Income Producing Assets Value only to the extent it comprises 15% or less of the Unencumbered Income Producing Assets Value, plus (g) the book value of notes receivable held directly by Holdings or its Subsidiaries from Persons other than Holdings or any of its Subsidiaries, and the book value of mezzanine equity investments held directly by Holdings or its Subsidiaries in other Persons (but without duplication of the immediately preceding clause (f)), provided that the aggregate book value of such notes receivable and mezzanine investments shall be included in the determination of Unencumbered Income Producing Assets Value only to the extent it comprises 5% or less of the Unencumbered Income Producing Assets Value, provided further that the aggregate of the net book value and the book value (as applicable) of the assets described in the immediately preceding clauses (f) and (g) shall be included in the determination of Unencumbered Income Producing Assets Value only to the extent it comprises 15% or less of the Unencumbered Income Producing Assets Value, plus (h) the book value (net of impairments) of all unencumbered watershed land, conservation land and pasture land of Holdings and its Subsidiaries not included in clauses (a) through (g) above, plus (i) the book value (net of impairments) of all other unencumbered assets of Holdings and its Subsidiaries not included
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in clauses (a) through (h) above, provided that (I) the aggregate book value of such other unencumbered assets shall be included in the determination of Unencumbered Income Producing Assets Value only to the extent it comprises 10% or less of the Unencumbered Income Producing Assets Value, and (II) the portion of Unencumbered Income Producing Assets Value derived from clauses (d) through (i) of this definition shall not exceed 25% of the total amount of the Unencumbered Income Producing Assets Value.
Notwithstanding anything to the contrary in the foregoing portions of this definition or in the final paragraph of paragraph 6A (immediately preceding paragraph 6B), any asset or Person (together with such Person’s Subsidiaries) acquired by Holdings or any of its Subsidiaries, for purpose of determining the “Unencumbered Income Producing Asset Value,” shall be valued at net book value (net of impairments) during the period from the consummation of such acquisition until the last day of the first four full fiscal quarters occurring after the consummation of such acquisition.
Section 1.11. Paragraph 10B of the Note Purchase Agreement shall be and is hereby amended by inserting the following new definitions in the appropriate alphabetical order, as follows:
“Dividing Person” has the meaning specified in the definition of “Division.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive
“Second Amendment” means the Second Amendment to this Agreement dated as of August 31, 2021.
“Second Amendment Effective Date” means the effective date of the Second Amendment.
“Secured Debt” means, at any time of determination thereof, the consolidated Debt of Holdings or its Subsidiaries that is not Unsecured Debt.
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“Secured Debt to Total Adjusted Asset Value Ratio” means at any time of determination thereof, the ratio of (a) all Secured Debt of Holdings and its Subsidiaries on a consolidated basis as of such time to (b) Total Adjusted Asset Value as of such time.
“Significant Acquisition” means the acquisition of one or more real property assets or portfolios of such assets or operating businesses in a single transaction or series of related transactions for a purchase price of not less than ten percent (10%) of Total Adjusted Asset Value.
“Total Debt to Total Adjusted Asset Value Ratio” means, as at any time of determination thereof, the ratio of (a) all Debt of Holdings and its Subsidiaries on a consolidated basis as of such time to (b) Total Adjusted Asset Value as of such time.
“Unencumbered Interest Expense” means Consolidated Interest Expense for the period of four consecutive fiscal quarters ended on any date of determination to the extent attributable to Unsecured Debt.
“Unrestricted Cash” means an aggregate amount equal to (a) cash and cash equivalents of Holdings or any of its Subsidiaries that is not subject to pledge, lien or control agreement (excluding statutory liens in favor of any depository bank where such cash is maintained), minus (b) amounts included in the foregoing clause (a) that are with an entity other than Holdings or any of its Subsidiaries as deposits or security for contractual obligations.
“Unsecured Debt to Unencumbered Income Producing Assets Value Ratio” means, at any time of determination thereof, the ratio of (a) Unsecured Debt to (b) Unencumbered Income Producing Assets Value.
Section 1.12. Paragraph 10B of the Note Purchase Agreement shall be and is hereby amended by deleting the definitions of “Appraised Value,” “NOI from Leased Agricultural Land,” “NOI from Unencumbered Leased Agricultural Land,” “Priority Debt,” “Unencumbered Fixed Charge Coverage Ratio” and “Unencumbered Fixed Charges.”
Section 2. Representations and Warranties of the Credit Parties.
Section 2.1. To induce AIG and the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second
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Amendment), each of the Credit Parties, jointly and severally, represent and warrant to AIG and the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by each Credit Party and constitutes the legal, valid and binding obligation, contract and agreement of each Credit Party enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(b) the Note Purchase Agreement, as amended by this Second Amendment, constitutes the legal, valid and binding obligation, contract and agreement of each Credit Party enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by each Credit Party of this Second Amendment (i) has been duly authorized by all requisite corporate action and, if required, equity-holder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) after due investigation and to any Co-Issuer’s best knowledge, any provision of law, statute, rule or regulation, (2) its certificate of incorporation or bylaws, (3) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (4) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, without limitation, each Principal Credit Facility, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any material indenture, agreement or other instrument referred to in clause (iii)(A)(4) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Paragraph 8 of the Note Purchase Agreement are true and correct with the same force and effect as if made on and as of the date hereof (except to the extent such representations and warranties expressly relate to another date, in which case such representations and warranties are true and correct in all material respects as of such other date).
Section 3. Conditions to Effectiveness of This Second Amendment.
Section 3.1. This Second Amendment shall not become effective until, and shall become effective when:
(a) executed counterparts of this Second Amendment, duly executed by the Credit Parties, AIG and the Noteholders, shall have been delivered to AIG and the Noteholders;
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(b) the Noteholders shall have received executed copies of the amendments to each outstanding Principal Credit Facility, in each case, substantially in the form previously provided to them and in form and substance reasonably satisfactory to the Noteholders;
(c) the representations and warranties of the Credit Parties set forth in Section 2 hereof shall be true and correct in all material respects on and with respect to the date hereof (except to the extent such representations and warranties expressly relate to another date, in which case such representations and warranties are true and correct in all material respects as of such other date) (and execution of this Second Amendment by each Credit Party shall constitute its certification of the same); and
(d) Holdings and each Co-Issuer shall have paid the reasonable fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this Second Amendment.
Upon receipt or satisfaction of all of the foregoing, this Second Amendment shall become effective.
Section 4. Miscellaneous.
Section 4.1. This Second Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Second Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Series 2017-1 Notes are hereby ratified and shall be and remain in full force and effect.
Section 4.2. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Second Amendment may refer to the Note Purchase Agreement without making specific reference to this Second Amendment but nevertheless all such references shall include this Second Amendment unless the context otherwise requires.
Section 4.3. The descriptive headings of the various Sections or parts of this Second Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.4. This Second Amendment shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York, excluding choice of law principles of the law of such state that would permit the application of the laws of a jurisdiction other than such state.
Section 4.5. This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. The parties agree to
-20-
electronic contracting and signatures with respect to this Second Amendment. Delivery of an electronic signature to, or a signed copy of, this Second Amendment by facsimile, email or other electronic transmission (including .pdf) shall be fully binding on the parties to the same extent as the delivery of the manually signed originals and shall be admissible into evidence for all purposes.
[Remainder of page intentionally blank]
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Section 4.6. The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this Second Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.
CoIssuers:
Alexander & Baldwin, LLC
By:/s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Senior Vice President
Alexander & Baldwin, LLC,
Series R
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Senior Vice President
Alexander & Baldwin, LLC,
Series T
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Senior Vice President
Alexander & Baldwin, LLC,
Series M
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
Holdings:
Alexander & Baldwin, Inc.
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Executive Vice President
Guarantors:
Alexander & Baldwin, Inc.
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Executive Vice President
Alexander & Baldwin Investments, LLC
By: Alexander & Baldwin, Inc., as its Manager
By: /s/ Christopher J. Benjamin
Name: Christopher J. Benjamin
Title: Chief Executive Officer
By: /s/ Nelson N.S. Chun
Name: Nelson N.S. Chun
Title: Executive Vice President
Grace Pacific LLC
By: A&B II, LLC, its Sole Member
By: /s/ Christopher J. Benjamin
Christopher J. Benjamin
Its Manager and Director
A&B II, LLC
By: /s/ Christopher J. Benjamin
Christopher J. Benjamin
Its Manager and Director
The foregoing Second Amendment is hereby accepted as of the date first above written.
AIG Asset Management (U.S.), LLC
By: /s/ Byron S. Douglass
Name: Byron S. Douglas
Title: Managing Director
Noteholders:
The United States Life Insurance Company in the City of New York
The Variable Annuity Life Insurance Company
By: AIG Asset Management (U.S.), LLC, as Investment Advisor
By: /s/ Byron S. Douglass
Name: Byron S. Douglas
Title: Managing Director
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### Question
Can you define what meeting means?
### Answer
**Meeting** is defined as the following in *5 U.S.C. § 552b*:
> the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e)
#### Citation:
- *5 U.S.C. § 552b*
- Heading: **PART I-THE AGENCIES GENERALLY > CHAPTER 5-ADMINISTRATIVE PROCEDURE > SUBCHAPTER II-ADMINISTRATIVE PROCEDURE**
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
(Mark One)
|☒ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|- | ---------------------------------------------------------------------------------------
For the quarterly period ended March 31, 2017
OR
|☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|- | ----------------------------------------------------------------------------------------
For the transition period from
to
Commission file number 0-32405
SEATTLE
GENETICS, INC.
(Exact name of registrant as specified in its charter)
| | |
|-------------------------------------------------------------- | | ------------------------------------
|Delaware | | 91-1874389
|(State or other jurisdiction of
incorporation or organization) | | (I.R.S. Employer
Identification No.)
21823 30th Drive SE
Bothell, Washington 98021
(Address of principal executive offices, including zip code)
(Registrants telephone number, including area code): (425) 527-4000
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90
days. Yes ☒ No ☐
Indicate by check mark whether the registrant has
submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an
emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
| | | | | | |
|----------------------- | | ------------------------------------------------ | | ------------------------- | | -
|Large accelerated filer | | ☒ | | Accelerated filer | | ☐
| | | |
|Non-accelerated filer | | ☐ (Do not check if a smaller reporting company) | | Smaller reporting company | | ☐
| | | |
|Emerging growth company | | ☐ | | | |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange
Act). Yes ☐ No ☒
As of April 26, 2017, there were 142,716,597 shares of
the registrants common stock outstanding.
---
EXPLANATORY NOTE
Seattle Genetics, Inc. (the Company) is filing this Amendment No. 1 to Quarterly Report on Form 10-Q/A (this
Amendment) to amend the Companys Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2017, as filed with the Securities and Exchange Commission (the SEC) on May 1, 2017 (the
10-Q). This Amendment is being filed solely to re-file Exhibit 10.3 to the 10-Q (the Exhibit) and in connection therewith, to amend Part II, Item 6 of the 10-Q. Certain provisions of the Exhibit were redacted in
accordance with the Companys application for confidential treatment with the SEC. In response to SEC comments, the Exhibit, as re-filed, includes certain provisions that had previously been redacted. In addition, as required by Rule
12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by our principal executive officer and principal financial officer are filed as exhibits to this Amendment.
No attempt has been made in this Amendment to modify or update the other disclosures presented in the 10-Q. This Amendment does not reflect
events occurring after the filing of the original 10-Q (i.e., those events occurring after May 1, 2017) or modify or update those disclosures that may be affected by subsequent events.
2
---
|Item 6. | Exhibits
|------- | --------
| | | | | | | | | | |
|-------------- | | ----------------------------------------------------------------------------------------------------------------------------------------------- | | -------------------------- | | ------------ | | ------- | | -----------
| | | | | Incorporation By Reference
|Exhibit
Number | | Exhibit Description | | Form | | SEC File No. | | Exhibit | | Filing Date
| | | | | |
|3.1 | | Fourth Amended and Restated Certificate of Incorporation of Seattle Genetics, Inc. | | 10-Q | | 000-32405 | | 3.1 | | 11/07/2008
| | | | | |
|3.2 | | Certificate of Amendment of Fourth Amended and Restated Certificate of Incorporation of Seattle Genetics, Inc. | | 8-K | | 000-32405 | | 3.3 | | 05/26/2011
| | | | | |
|3.3 | | Amended and Restated Bylaws of Seattle Genetics, Inc. | | 8-K | | 000-32405 | | 3.1 | | 11/25/2015
| | | | | |
|4.1 | | Specimen Stock Certificate. | | S-1/A | | 333-50266 | | 4.1 | | 02/08/2001
| | | | | |
|4.2 | | Investor Rights Agreement dated July 8, 2003 among Seattle Genetics, Inc. and certain of its stockholders. | | 10-Q | | 000-32405 | | 4.3 | | 11/07/2008
| | | | | |
|4.3 | | Registration Rights Agreement, dated September
10, 2015, between Seattle Genetics, Inc. and the persons listed on Schedule A attached thereto. | | 8-K | | 000-32405 | | 10.1 | | 09/11/2015
| | | | | |
|10.1* | | Seattle Genetics, Inc. Senior Executive Annual Bonus Plan. | | 8-K | | 000-32405 | | 10.1 | | 02/01/2017
| | | | | |
|10.2* | | Compensation Information for Executive Officers and Directors. | | 10-K | | 000-32405 | | 10.56 | | 02/21/2017
| | | | | |
|10.3+ | | Development and License Agreement dated February 10, 2017 between Seattle Genetics, Inc. and Immunomedics, Inc. | | | | | | | |
| | | | | |
|10.4 | | Stock Purchase Agreement, dated February 10, 2017 between Seattle Genetics, Inc. and Immunomedics, Inc. | | 10-Q | | 000-32405 | | 10.4 | | 05/01/2017
| | | | | |
|10.5 | | Registration Rights Agreement, dated February 10, 2017 between Seattle Genetics, Inc. and Immunomedics, Inc. | | 10-Q | | 000-32405 | | 10.5 | | 05/01/2017
| | | | | |
|10.6 | | Immunomedics, Inc. Common Stock Purchase Warrant, dated February 16, 2017. | | 10-Q | | 000-32405 | | 10.6 | | 05/01/2017
| | | | | |
|10.7 | | Warrant Agreement, dated February
16, 2017, between Immunomedics, Inc. and Broadridge Corporate Issuer Solutions, Inc., as Warrant Agent. | | 10-Q | | 000-32405 | | 10.7 | | 05/01/2017
| | | | | |
|31.1+ | | Certification of Chief Executive Officer pursuant to Rule 13a-14(a). | | | | | | | |
| | | | | |
|31.2+ | | Certification of Chief Financial Officer pursuant to Rule 13a-14(a). | | | | | | | |
| | | | | |
|32.1 | | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350. | | 10-Q | | 000-32405 | | 32.1 | | 05/01/2017
| | | | | |
|32.2 | | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350. | | 10-Q | | 000-32405 | | 32.2 | | 05/01/2017
| | | | | |
|101.INS | | XBRL Instance Document. | | 10-Q | | 000-32405 | | 101.INS | | 05/01/2017
| | | | | |
|101.SCH | | XBRL Taxonomy Extension Schema Document. | | 10-Q | | 000-32405 | | 101.SCH | | 05/01/2017
| | | | | |
|101.CAL | | XBRL Taxonomy Extension Calculation Linkbase Document. | | 10-Q | | 000-32405 | | 101.CAL | | 05/01/2017
| | | | | |
|101.DEF | | XBRL Taxonomy Extension Definition Linkbase Document. | | 10-Q | | 000-32405 | | 101.DEF | | 05/01/2017
| | | | | |
|101.LAB | | XBRL Taxonomy Extension Labels Linkbase Document. | | 10-Q | | 000-32405 | | 101.LAB | | 05/01/2017
| | | | | |
|101.PRE | | XBRL Taxonomy Extension Presentation Linkbase Document. | | 10-Q | | 000-32405 | | 101.PRE | | 05/01/2017
|+ | Filed herewith.
|- | ---------------
| | Pursuant to a request for confidential treatment, portions of this Exhibit have been redacted from the publicly filed document and have been furnished separately to the Securities and Exchange Commission as required by Rule 24b-2 under the Securities Exchange Act of 1934.
|- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
|* | Indicates a management contract or compensatory plan or arrangement.
|- | --------------------------------------------------------------------
3
---
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
| | |
|---------------------- | | --------------------------------------------------------------------------------------------------------
|SEATTLE GENETICS, INC.
| |
|By: | | /s/ TODD E. SIMPSON
| | | Todd E. Simpson
Duly Authorized and Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: September 15, 2017
4
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Searched for **http://www.worldwar1centennial.org/**
19961997199819992000200120022003200420052006200720082009201020112012201320142015201620172018201920202021202220232024
*Note:* This calendar view maps the number of captures of **http://www.worldwar1centennial.org/**, *not* how many times the site was actually updated.
Look Up URL in general Internet Archive web collection.
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| 1.807007
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s3://data.kl3m.ai/documents/govinfo/CHRG/CHRG-108shrg90076/CHRG-108shrg90076/pdf.json
| 1.728572
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| "IIB\n\n106TH CONGRESS\n\n1ST SESSION H. R. 974\n\nIN THE SENATE OF THE UNITED STATES\n\nMAY 27, 199(...TRUNCATED)
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s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-106hr974rfs/pdf.json
| 0.852974
|
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