AGREEMENT AND PLAN OF MERGER by and among REXFORD INDUSTRIAL REALTY, INC., REXFORD INDUSTRIAL REALTY, L.P., REXFORD FUND V MANAGER MERGER SUB LLC and REXFORD FUND V MANAGER LLC Dated as of July 24, 2013
Exhibit 2.11
EXECUTION VERSION
by and among
XXXXXXX INDUSTRIAL REALTY, INC.,
XXXXXXX INDUSTRIAL REALTY, L.P.,
XXXXXXX FUND V MANAGER MERGER SUB LLC
and
XXXXXXX FUND V MANAGER LLC
Dated as of July 24, 2013
EXECUTION VERSION
TABLE OF CONTENTS
PAGE | ||||||||
ARTICLE I THE MERGER |
3 | |||||||
Section 1.01 |
THE MERGER | 3 | ||||||
Section 1.02 |
EFFECTIVE TIME | 3 | ||||||
Section 1.03 |
EFFECT OF THE MERGER | 3 | ||||||
Section 1.04 |
ORGANIZATIONAL DOCUMENTS | 3 | ||||||
Section 1.05 |
CONVERSION OF MANAGEMENT COMPANY INTERESTS | 3 | ||||||
Section 1.06 |
CANCELLATION AND RETIREMENT OF MANAGEMENT COMPANY INTERESTS | 4 | ||||||
Section 1.07 |
FRACTIONAL INTERESTS | 5 | ||||||
Section 1.08 |
FURTHER ACTION | 5 | ||||||
Section 1.09 |
CALCULATION OF MERGER CONSIDERATION | 5 | ||||||
ARTICLE II CLOSING |
6 | |||||||
Section 2.01 |
CONDITIONS PRECEDENT | 6 | ||||||
Section 2.02 |
TIME AND PLACE | 8 | ||||||
Section 2.03 |
DELIVERY OF MERGER CONSIDERATION | 8 | ||||||
Section 2.04 |
CLOSING DELIVERIES | 10 | ||||||
Section 2.05 |
CLOSING COSTS | 10 | ||||||
Section 2.06 |
TERM OF THE AGREEMENT | 10 | ||||||
Section 2.07 |
EFFECT OF TERMINATION | 10 | ||||||
Section 2.08 |
TAX WITHHOLDING | 11 | ||||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE OP PARTIES |
11 | |||||||
Section 3.01 |
ORGANIZATION; AUTHORITY | 11 | ||||||
Section 3.02 |
DUE AUTHORIZATION | 12 | ||||||
Section 3.03 |
CONSENTS AND APPROVALS | 12 | ||||||
Section 3.04 |
NO VIOLATION | 12 | ||||||
Section 3.05 |
VALIDITY OF OP UNITS AND REIT SHARES | 12 | ||||||
Section 3.06 |
LITIGATION | 13 | ||||||
Section 3.07 |
OPERATING PARTNERSHIP AGREEMENT | 13 | ||||||
Section 3.08 |
LIMITED ACTIVITIES | 13 | ||||||
Section 3.09 |
NO BROKER. | 13 | ||||||
Section 3.10 |
NO OTHER REPRESENTATIONS OR WARRANTIES | 13 | ||||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT COMPANY |
13 | |||||||
Section 4.01 |
ORGANIZATION; AUTHORITY | 13 | ||||||
Section 4.02 |
DUE AUTHORIZATION | 14 | ||||||
Section 4.03 |
CAPITALIZATION | 15 | ||||||
Section 4.04 |
CONSENTS AND APPROVALS | 15 | ||||||
Section 4.05 |
NO VIOLATION | 15 |
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Section 4.06 |
LICENSES AND PERMITS |
15 | ||||
Section 4.07 |
COMPLIANCE WITH LAWS |
16 | ||||
Section 4.08 |
INSURANCE |
16 | ||||
Section 4.09 |
FINANCIAL STATEMENTS |
16 | ||||
Section 4.10 |
TAXES |
16 | ||||
Section 4.11 |
LITIGATION |
17 | ||||
Section 4.12 |
INSOLVENCY |
17 | ||||
Section 4.13 |
SECURITIES LAW MATTERS |
18 | ||||
Section 4.14 |
NO BROKER |
18 | ||||
Section 4.15 |
OWNERSHIP OF CERTAIN ASSETS |
18 | ||||
Section 4.16 |
EMPLOYEES |
18 | ||||
Section 4.17 |
NO OTHER REPRESENTATIONS OR WARRANTIES |
18 | ||||
Section 4.18 |
SURVIVAL OF REPRESENTATIONS AND WARRANTIES |
18 | ||||
ARTICLE V COVENANTS AND OTHER AGREEMENTS |
18 | |||||
Section 5.01 |
PRE-CLOSING COVENANTS |
18 | ||||
Section 5.02 |
COMMERCIALLY REASONABLE EFFORTS BY THE OPERATING PARTNERSHIP AND THE MANAGEMENT COMPANY | 20 | ||||
Section 5.03 |
TAX MATTERS |
20 | ||||
Section 5.04 |
CONSENT AND WAIVER OF RIGHTS UNDER ORGANIZATIONAL DOCUMENTS |
21 | ||||
Section 5.05 |
EXCLUDED ASSETS |
22 | ||||
Section 5.06 |
ALTERNATE TRANSACTION |
22 | ||||
Section 5.07 |
OBLIGATIONS OF MERGER SUB |
22 | ||||
ARTICLE VI GENERAL PROVISIONS |
23 | |||||
Section 6.01 |
NOTICES |
23 | ||||
Section 6.02 |
DEFINITIONS |
23 | ||||
Section 6.03 |
COUNTERPARTS |
27 | ||||
Section 6.04 |
ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES |
27 | ||||
Section 6.05 |
GOVERNING LAW |
27 | ||||
Section 6.06 |
ASSIGNMENT |
27 | ||||
Section 6.07 |
JURISDICTION |
27 | ||||
Section 6.08 |
DISPUTE RESOLUTION |
28 | ||||
Section 6.09 |
SEVERABILITY |
29 | ||||
Section 6.10 |
RULES OF CONSTRUCTION |
29 | ||||
Section 6.11 |
EQUITABLE REMEDIES |
30 | ||||
Section 6.12 |
TIME OF THE ESSENCE |
30 | ||||
Section 6.13 |
DESCRIPTIVE HEADINGS |
30 | ||||
Section 6.14 |
NO PERSONAL LIABILITY CONFERRED |
30 | ||||
Section 6.15 |
WAIVER OF SECTION 1542 PROTECTIONS |
30 | ||||
Section 6.16 |
AMENDMENTS |
30 |
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Schedule 2.05 |
Reimbursement Agreements |
|||
Schedule 3.01(b) |
List of Operating Partnership Subsidiaries |
|||
Schedule 4.01(b) |
List of Subsidiaries/List of Properties |
|||
Schedule 4.03 |
Capitalization |
|||
Schedule 4.08 |
Insurance Policies |
|||
Schedule 4.15 |
Ownership of Certain Assets |
|||
Schedule 5.05 |
Excluded Assets |
|||
Schedule 6.02(c) |
Calculation of Equity Value |
Exhibit A |
List of Xxxxxxx Entities |
|||
Exhibit B |
Operating Partnership Agreement |
|||
Exhibit C |
Form of Lock-Up Agreement |
|||
Exhibit D |
Form of Tax Matters Agreement |
|||
Exhibit E |
Form of Registration Rights Agreement |
|||
Exhibit F |
Order of Mergers and Contribution Transactions |
|||
Exhibit G |
Formation Transaction Documentation |
iii
DEFINED TERMS
TERM |
SECTION | |
Accredited Investor |
Section 6.02(a) | |
Affiliate |
Section 6.02(b) | |
Agreement |
Introduction | |
Allocated Share |
Section 6.02(c) | |
Alternate Transaction |
Section 6.02(d) | |
Business Day |
Section 6.02(e) | |
Certificate of Merger |
Section 1.02 | |
Closing |
Section 2.02 | |
Closing Date |
Section 2.02 | |
Code |
Section 6.02(f) | |
Consent Form |
Section 6.02(g) | |
Contributed Entities |
Recitals | |
Contributed Interest |
Recitals | |
Contributor |
Recitals | |
Decrease |
Section 6.02(c)(1) | |
Dispute |
Section 6.08(a) | |
DLLCA |
Recitals | |
Effective Time |
Section 1.02 | |
Elected OP Unit Percentage |
Section 6.02(h) | |
Elected REIT Shares Percentage |
Section 6.02(i) | |
Entity Specific Debt |
Section 6.02(j) | |
Equity Value |
Section 6.02(k) | |
Excluded Assets |
Section 6.02(l) | |
Formation Transaction Documentation |
Section 6.02(m) | |
Formation Transactions |
Section 6.02(n) | |
Fund V Subsequent Investment Amount |
Section 6.02(o) | |
Governmental Authority |
Section 6.02(p) | |
Interim Period |
Section 6.02(q) | |
JAMS |
Section 6.08(b) | |
Joinder Date |
Section 5.07 | |
Laws |
Section 6.02(r) | |
Liens |
Section 6.02(s) | |
Lock-up Agreement |
Section 6.02(t) | |
Management Company |
Recitals | |
Management Company Material Adverse Effect |
Section 6.02(u) | |
Management Company Subsidiary |
Section 4.01(b) | |
Managing Member |
Recitals | |
Merger Consideration |
Section 1.05(a) | |
Merger |
Recitals | |
Merger Sub |
Introduction | |
Offering |
Recitals | |
Offering Closing Date |
Section 6.02(u) | |
Offering Document |
Section 6.02(w) |
iv
Offering Price |
Section 6.02(x) | |
OP Material Adverse Effect |
Section 6.02(y) | |
OP Parties |
Introduction | |
OP Units |
Recitals | |
Operating Partnership |
Introduction | |
Operating Partnership Agreement |
Section 6.02(z) | |
Operating Partnership Subsidiary |
Section 3.01(b) | |
Organizational Documents |
Section 6.02(aa) | |
Outside Date |
Section 2.06 | |
Ownership Limits |
Section 1.05(a) | |
Person |
Section 6.02(bb) | |
Pre-Formation Interests |
Section 6.02(cc) | |
Pre-Formation Participants |
Section 6.02(dd) | |
Property |
Section 6.02(ee) | |
Register |
Section 2.03(a) | |
Registration Rights Agreement |
Section 6.02(ff) | |
REIT |
Introduction | |
REIT Shares |
Recitals | |
Xxxxxxx Entity |
Section 6.02(gg) | |
RIF V Fund |
Recitals | |
RIF V REIT |
Introduction | |
RIF Fund Contribution Agreements |
Recitals | |
RIF Fund Entity |
Recitals | |
RI LLC |
Recitals | |
Sale Consent |
Section 5.03(a) | |
Sponsor |
Recitals | |
SEC |
Section 2.01(a)(i) | |
Securities Act |
Section 6.02(hh) | |
Subsidiary |
Section 6.02(ii) | |
Surviving Entity |
Section 1.01 | |
Target Asset |
Section 6.02(jj) | |
Tax |
Section 6.02(kk) | |
Tax Matters Agreement |
Section 6.02(ll) | |
Tax Return |
Section 6.02(mm) | |
Underwriting Agreement |
Section 6.02(nn) | |
Valid Election |
Section 6.02(oo) |
v
THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of July 24, 2013 (this “Agreement”), by and among Xxxxxxx Industrial Realty, Inc., a Maryland corporation (the “REIT”), Xxxxxxx Industrial Realty, L.P., a Maryland limited partnership (the “Operating Partnership”) and a subsidiary of the REIT, Rexford Fund V Manager Merger Sub LLC, a Delaware limited liability company to be formed prior to the Effective Time (defined below) and to be indirectly wholly owned by the Operating Partnership (the “Merger Sub” and, together with the Operating Partnership, the “OP Parties” and each, an “OP Party”), and Xxxxxxx Fund V Manager LLC, a Delaware limited liability company (the “Management Company”). Certain capitalized terms are defined in Section 6.02 of this Agreement.
WHEREAS, concurrently with the execution of this Agreement, Xxxxxxx Industrial, LLC, a California limited liability company (“RI LLC”), will enter into an agreement and plan of merger pursuant to which RI LLC will merge with and into a direct wholly-owned subsidiary of the Operating Partnership, with RI LLC as the surviving entity, and the equity interests in RI LLC will be converted automatically into the right to receive cash, without interest, OP Units and/or REIT Shares;
WHEREAS, concurrently with the execution of this Agreement, Xxxxxxx Sponsor V LLC, a Delaware limited liability company (“Sponsor”), will enter into an agreement and plan of merger pursuant to which Sponsor will merge with and into a direct wholly-owned subsidiary of the Operating Partnership, with Sponsor as the surviving entity, and the equity interests in Sponsor will be converted automatically into the right to receive cash, without interest, OP Units and/or REIT Shares;
WHEREAS, concurrently with the execution of this Agreement, Xxxxxxx Industrial Fund V REIT, LLC, a Delaware limited liability company (“RIF V REIT”), will enter into an agreement and plan of merger with the REIT pursuant to which the RIF V REIT will merge with and into the REIT and the equity interests in the RIF V REIT will be converted automatically into the right to receive cash, without interest, or REIT Shares;
WHEREAS, concurrently with the execution of this Agreement, Xxxxxxx Industrial Fund V, LP, a Delaware limited partnership (“RIF V Fund”), will enter into an agreement and plan of merger with the Operating Partnership pursuant to which RIF V Fund will merge with and into the Operating Partnership and the partnership interests in RIF V Fund will be (a) converted automatically into the right to receive cash, without interest, REIT Shares and/or OP Units and (b) in the case of the partnership interests in RIF V Fund held by the Management Company or the REIT, cancelled;
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WHEREAS, in the event that all members of a Contributor return duly executed and completed Consent Forms approving the Formation Transactions, then, in lieu of the applicable RIF Fund Contribution Agreement, the REIT may elect to cause the applicable Contributor to enter into an agreement and plan of merger with the Operating Partnership pursuant to which such Contributor will merge with and into the Operating Partnership and the membership interests in such Contributor will be converted automatically into the right to receive cash, REIT Shares and/or OP Units;
2
ARTICLE I
Section 1.05 CONVERSION OF MANAGEMENT COMPANY INTERESTS.
(a) Under and subject to the terms and conditions of the respective Formation Transaction Documentation, each Pre-Formation Participant is irrevocably bound to accept and entitled to receive, as a result of and upon consummation of the Merger or other Formation Transactions, a specified share of the Xxxxxxx Entities as a whole in the form of the right to receive cash, REIT Shares and/or OP Units as calculated in this Section 1.05.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of the parties hereto, except as set forth in this Agreement, each Management Company
3
Interest shall be converted automatically into the right to receive cash, OP Units and/or REIT Shares with a value equal to the portion of the Equity Value of the Management Company represented by such Management Company Interest (collectively, but, for the avoidance of doubt, excluding any consideration payable to such Pre-Formation Participants pursuant to the Formation Transactions in respect of Pre-Formation Interests in any Xxxxxxx Entity other than the Management Company, referred to as the “Merger Consideration”) and each holder that receives OP Units in the Merger shall, upon receipt of such OP Units and the delivery of a Consent Form or a counterpart signature page to the Operating Partnership Agreement and such other documents and instruments as may be required in the sole discretion of the REIT to effect such holder’s admission as a limited partner of the Operating Partnership, be admitted as a limited partner of the Operating Partnership in accordance with the Maryland Revised Uniform Limited Partnership Act and the Operating Partnership Agreement. The portion of the Equity Value of the Management Company “represented by” a Management Company Interest shall be calculated using the same methodology used to calculate the allocated Share of a holder of such Management Company Interest.
(c) Subject to Section 1.07, the amount of cash, number of OP Units and/or REIT Shares comprising the Merger Consideration for each Management Company Interest so converted shall be as follows:
(i) Cash. One hundred percent (100%) of the Allocated Share attributable to a Pre-Formation Participant who is not an Accredited Investor shall be paid in cash.
(ii) OP Units. The Elected OP Unit Percentage of the Allocated Share attributable to a Pre-Formation Participant who is an Accredited Investor shall be distributed in in whole OP Units in the form of a number of OP Units equal to the applicable portion of such Allocated Share divided by the Offering Price; and
(iii) REIT Shares. The Elected REIT Shares Percentage of the Allocated Share attributable to a Pre-Formation Participant who is an Accredited Investor shall be distributed in whole REIT Shares in the form of a number of REIT Shares equal to the applicable portion of such Allocated Share divided by the Offering Price; provided, that, to the extent such distribution of REIT Shares to such Pre-Formation Participant would result in a violation of the restrictions on ownership and transfer set forth in Section 6.2.1 of the REIT’s charter (the “Ownership Limits”), such Pre-Formation Participant shall receive (x) the maximum number of whole REIT Shares that would not result in such a violation of the Ownership Limits, and (y) that number of whole OP Units equal to the remaining number of REIT Shares not distributed as a result of the application of the foregoing clause (x).
4
outstanding that is owned by the Operating Partnership or any of its direct or indirect wholly-owned Subsidiaries shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist and no consideration shall be delivered hereunder in exchange therefor and (iii) each interest in the Merger Sub will be converted into one issued and outstanding Management Company Interest.
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ARTICLE II
(i) Registration Statement. If the REIT undertakes a public Offering, the public Offering registration statement must have been declared effective under the Securities Act and will not be the subject of any stop order or proceedings by the Securities and Exchange Commission (“SEC”) seeking a stop order. This condition may not be waived by any party.
(ii) No Injunction. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction, stay or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of any of the transactions contemplated in this Agreement nor shall any of the same brought by a Governmental Authority of competent jurisdiction be pending or threatened that seeks the foregoing.
(iii) Operating Partnership Agreement. The Operating Partnership Agreement, in substantially the form attached hereto as Exhibit B, shall have been executed and delivered by the partners of the Operating Partnership and shall be in full force and effect and, except as contemplated by Section 2.03 or the other Formation Transaction Documents, shall not have been amended or modified.
(b) Conditions to the Obligations of the OP Parties. The obligations of the OP Parties to effect the Merger contemplated by this Agreement and to consummate the other transactions contemplated hereby to occur on the Closing Date are further subject to satisfaction of the following conditions (any of which may be waived by the Operating Partnership in whole or in part):
(i) Representations and Warranties. The representations and warranties of the Management Company contained in this Agreement shall be true and correct in all material respects at the Closing as if made again at that time (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date).
(ii) Performance by the Management Company. The Management Company shall have performed each of the agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date and the Management Company shall not have breached any of its covenants contained herein in any material respect.
6
(iii) Offering Closing. The closing of the Offering shall occur substantially concurrently with the Closing.
(iv) Consents, Etc. All necessary consents and approvals of Governmental Authorities or third parties (including lenders) for the Management Company to consummate the transactions contemplated hereby shall have been obtained.
(v) No Management Company Material Adverse Effect. There shall have not occurred between the date hereof and the Closing Date a Management Company Material Adverse Effect.
(vi) Formation Transactions. The Formation Transactions shall have been or shall be consummated substantially concurrently in accordance with the timing set forth in the respective Formation Transaction Documentation.
(vii) Lock-Up Agreement. Each of the Pre-Formation Participants owning interests in the Management Company shall have entered into the Lock-Up Agreement substantially in the form attached as Exhibit C.
(viii) Tax Matters Agreement. Any Pre-Formation Participant that will receive OP Units in the Merger and that (1) owns, directly or indirectly, an interest in any Property specified in the Tax Matters Agreement or (2) has been provided an opportunity to guarantee debt as set forth in the Tax Matters Agreement shall have entered into the Tax Matters Agreement substantially in the form attached as Exhibit D, if applicable.
(c) Conditions to the Obligations of the Management Company. The obligation of the Management Company to effect the Merger contemplated by this Agreement and to consummate the other transactions contemplated hereby to occur on the Closing Date are further subject to satisfaction of the following conditions (any of which may be waived by the Management Company in whole or in part):
(i) Representations and Warranties. Except as would not have an OP Material Adverse Effect, the representations and warranties of the OP Parties contained in this Agreement shall be true and correct at the Closing as if made again at that time (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date).
(ii) Performance by the OP Parties. Except as would not have an OP Material Adverse Effect, the OP Parties shall have performed all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date.
(iii) Registration Rights Agreement. The REIT shall have entered into the Registration Rights Agreement, substantially in the form attached as Exhibit E hereto. This condition may not be waived by any party hereto.
(iv) Tax Matters Agreement. If the Management Company (1) owns, directly or indirectly, an interest in any Property specified in the Tax Matters Agreement
7
or (2) has any members that have been provided an opportunity to guarantee debt as set forth in the Tax Matters Agreement, the REIT and the Operating Partnership shall have entered into the Tax Matters Agreement substantially in the form attached as Exhibit D, if applicable.
Section 2.03 DELIVERY OF MERGER CONSIDERATION.
(a) Subject to Section 5.03(a), as soon as reasonably practicable after the Effective Time, the Surviving Entity (or its successor in interest) shall deliver to each holder of Management Company Interests, whose Management Company Interests have been converted into the right to receive the Merger Consideration pursuant to Section 1.05(b) hereof, the Merger Consideration payable to such holder in the amounts and form provided in Section 1.05(c) hereof. The issuance of any OP Units and admission of the recipients thereof as limited partners of the Operating Partnership pursuant to Section 1.05(b) shall be evidenced by an entry to the Register (as defined in the Operating Partnership Agreement), and the Operating Partnership shall deliver, or cause to be delivered, an executed copy of the Amendment to each Pre-Formation Participant receiving OP Units hereunder. Any certificate representing REIT Shares issuable as Merger Consideration shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE CORPORATION AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST
8
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE CORPORATION’S CHARTER, (I) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION’S COMMON STOCK IN EXCESS OF 9.8% (IN VALUE OR NUMBER OF SHARES) OF THE OUTSTANDING SHARES OF COMMON STOCK OF THE CORPORATION UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (II) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK OF THE CORPORATION IN EXCESS OF 9.8% OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OF CAPITAL STOCK OF THE CORPORATION, UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (III) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN CAPITAL STOCK THAT COULD RESULT IN THE CORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (IV) NO PERSON MAY TRANSFER SHARES OF CAPITAL STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK WHICH CAUSES OR MAY CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION OR, IN THE CASE OF SUCH A PROPOSED OR ATTEMPTED TRANSACTION, GIVE AT LEAST 15 DAYS PRIOR WRITTEN NOTICE. IF ANY OF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP SET FORTH IN (I) THROUGH (III) ABOVE ARE VIOLATED, THE SHARES OF CAPITAL STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN ADDITION, THE CORPORATION MAY TAKE OTHER ACTIONS, INCLUDING REDEEMING SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS
9
IN ITS SOLE AND ABSOLUTE DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL UNDERLINED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CHARTER OF THE CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF CAPITAL STOCK OF THE CORPORATION ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE.
(b) The Surviving Entity (or its successor in interest) shall not be liable to any holder of a Management Company Interest for any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
10
Agreement or any other Formation Transaction Documentation, the non-breaching party’s right to pursue all legal remedies with respect to such breach will survive such termination unimpaired.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OP PARTIES
Each of the OP Parties hereby represents and warrants to the Management Company as follows:
(a) Each OP Party has been duly formed or incorporated and is validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation and has, or upon the effectiveness of the Operating Partnership Agreement, will have, all requisite power and authority to enter into this Agreement and the other Formation Transaction Documentation and to carry out the transactions contemplated hereby and thereby, and to own, lease and/or operate its property and to carry on its business as presently conducted and, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have an OP Material Adverse Effect.
(b) Schedule 3.01(b) sets forth as of the date hereof, (i) each Subsidiary of the Operating Partnership (each an “Operating Partnership Subsidiary”), (ii) the ownership interest therein of the Operating Partnership, and (iii) if not wholly owned by the Operating Partnership, the identity and ownership interest of each of the other owners of such Operating Partnership Subsidiary. Each Operating Partnership Subsidiary has been duly organized or formed and is validly existing and is in good standing under the Laws of its jurisdiction of organization or formation, as applicable, has all requisite power and authority to own, lease and/or operate its property and to carry on its business as presently conducted and, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have an OP Material Adverse Effect.
11
12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT COMPANY
Except as disclosed in the Offering Document or the schedules attached hereto, the Management Company represents and warrants to the OP Parties that as of the Closing Date:
Section 4.01 ORGANIZATION; AUTHORITY.
(a) The Management Company has been duly formed, is validly existing and in good standing under the Laws of its jurisdiction of formation, and has all requisite power and authority to enter into this Agreement, each agreement contemplated hereby and the other Formation Transaction Documentation to which it is a party (including any agreement, document
13
and instrument executed and delivered by or on behalf of the Management Company pursuant to this Agreement or the other Formation Transaction Documentation) and to carry out the transactions contemplated hereby and thereby, and to carry on its business as presently conducted. The Management Company, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Management Company Material Adverse Effect.
(b) Schedule 4.01(b) sets forth as of the date hereof with respect to the Management Company (i) each direct or indirect Subsidiary of the Management Company (each a “Management Company Subsidiary” and, collectively the “Management Company Subsidiaries”), (ii) the direct or indirect ownership interest therein of the Management Company, (iii) if not wholly owned by the Management Company, the identity and ownership interest of each of the other owners of such Subsidiary, and (iv) each real property owned directly or indirectly, in whole or in part, by such Subsidiary. Such Management Company Subsidiary has been duly organized and is validly existing and is in good standing under the Laws of its jurisdiction of organization, and has all requisite power and authority to own, lease and/or operate its property and to carry on its business as presently conducted. Such Management Company Subsidiary, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Management Company Material Adverse Effect. Except as set forth on Schedule 4.01(b), each of the Management Company and the Management Company Subsidiaries does not own any equity or ownership interest in any other Person.
(c) The OP Parties have been provided complete and accurate copies of Organizational Documents, as amended through the date hereof, and such Organizational Documents are in full force and effect as of the date hereof and have not been further modified or amended.
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Section 4.03 CAPITALIZATION. Schedule 4.03 sets forth as of the date hereof the ownership of the Management Company. All of the issued and outstanding equity interests of the Management Company and each Management Company Subsidiary are duly authorized, validly issued and fully paid; and are not subject to preemptive rights or appraisal, dissenters’ or other similar rights under the Organizational Documents of or any contract to which the Management Company is a party or otherwise bound, except for such preemptive rights, transfer restrictions, or appraisal, dissenters’ or other similar rights as would not prevent the Merger. There are no outstanding rights to purchase, subscriptions, warrants, options or any other security convertible into or exchangeable for equity interests in the Management Company or the Management Company Subsidiaries. Except as set forth in the Organizational Documents, the Management Company or its Management Company Subsidiaries is not a party to any agreement for the sale of its material assets, for the grant to any Person of any preferential right to purchase any such material assets or the acquisition of any material operating business, material assets or capital stock of any other corporation, entity or business, other than the purchase or sale of assets in the ordinary course of business.
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contemplated by the Formation Transaction Documentation) are assignable to the OP Parties, except in each case for items that, if not so obtained, obtainable and/or transferred, would not, individually or in the aggregate, reasonably be expected to have a Management Company Material Adverse Effect. Neither the Management Company nor its Management Company Subsidiaries, nor, to the knowledge of the Management Company, any third party has taken any action that (or failed to take any action the omission of which) would result in the revocation of any such notice, license, permit, certificate or authorization where such revocation or revocations would, individually or in the aggregate, reasonably be expected to have a Management Company Material Adverse Effect, nor has any one of them received any written notice of violation from any Governmental Authority or written notice of the intention of any entity to revoke any such notice, license, permit, certificate or authorization, that in each case has not been cured or otherwise resolved to the satisfaction of such Governmental Authority or other entity and except as would not, individually or in the aggregate, reasonably be expected to have a Management Company Material Adverse Effect.
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(a) The Management Company has timely and properly filed (or caused to be timely and properly filed) all Tax Returns required to be filed by it (after giving effect to any filing extension properly granted by a Governmental Authority having authority to do so), and all such Tax Returns are accurate and complete in all material respects.
(b) The Management Company has timely paid (or has had paid on its behalf) all Taxes as required to be paid by it.
(c) No income or material non-income Tax returns filed by the Management Company are subject to a pending or ongoing audit. No deficiencies for any income or material non-income Taxes have been proposed, asserted or assessed against the Management Company, and no requests for waivers of the time to assess any such Taxes are pending.
(d) Since its formation, the Management Company has been treated for United States federal income tax purposes as a partnership and not as a corporation or an association taxable as a corporation.
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Section 4.16 EMPLOYEES. The Management Company does not have, nor has ever had any employees.
ARTICLE V
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obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the Management Company shall not (and shall not permit any of its Management Company Subsidiaries to) without the prior written consent of the Operating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion:
(a) (i) other than distributions to the members of the Management Company in connection with such members’ payment of any Taxes related to their ownership of the membership interest of the Management Company or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any Management Company Interests, except in the ordinary course of business consistent with past practice and in accordance with the applicable governing document of the Management Company, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any Management Company Interests or make any other changes to the equity capital structure of the Management Company, or (iii) purchase, redeem or otherwise acquire any Management Company Interests or interests or any other securities thereof;
(b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests of the Management Company or any other assets of the Management Company;
(c) amend its certificate of formation and limited liability company agreement;
(d) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(e) materially alter the manner of keeping the Management Company’s books, accounts or records or the accounting practices therein reflected;
(f) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the Management Company as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax Return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
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(g) knowingly cause or permit the Management Company to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws;
(h) take any action or fail to take any action the result of which would have a Management Company Material Adverse Effect; or
(i) authorize, commit or agree to take any of the foregoing actions.
(a) So long as some portion of the Merger Consideration is in the form of OP Units, the parties hereto intend and agree that, for United States federal income tax purposes, the transactions contemplated by this Agreement shall constitute an “assets-over” partnership merger within the meaning of Treasury Regulations Section 1.708-1(c)(3)(i) pursuant to which the Management Company contributes all of its assets and liabilities to the Operating Partnership in exchange for OP Units in a transaction qualifying under Section 721(a) of the Code and immediately thereafter, the Management Company distributes such OP Units to the holders of Management Company Interests. As a result, (i) in accordance with Treasury Regulations Section 1.708-1(c)(4), any payment of cash or REIT Shares attributable to a holder of Management Company Interests shall be treated as a sale by such holder of its Management Company Interests and a purchase of such interests by the Operating Partnership for the cash and/or REIT Shares so paid under the terms of this Agreement, and (ii) the Management Company shall cause each such holder of Management Company Interests who receives cash and/or REIT Shares to explicitly agree and consent (the “Sale Consent”) to such treatment in their Consent Forms as a condition to electing such consideration. To the extent the Operating Partnership acquires any Management Company Interests as described in clause (i) above, or otherwise previously acquired any such interests, for United States federal income tax purposes the receipt by the Operating Partnership of the portion of property attributable to such interests shall be treated as a distribution by the Management Company in redemption of such interests. Notwithstanding Section 1.05 and any holder’s election as to the form of its Merger Consideration, if any holder of Management Company Interests (other than a non-Accredited Investor), fails to execute a Sale Consent prior to the Closing, such holder’s Merger Consideration shall consist solely of OP Units. Notwithstanding Section 1.07 and Section 2.03(a), any cash paid as the Merger Consideration holder of Management Company Interests shall be paid only after the receipt of a Sale Consent from such holder of Management Company Interests.
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(b) Each of the REIT, the Operating Partnership and the Management Company shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns related to the transactions pursuant to this Agreement and any audit, litigation or administrative, judicial or other inquiry or proceeding with respect to Taxes related to the transactions pursuant to this Agreement. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such action or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) The Operating Partnership shall prepare or cause to be prepared and file or cause to be filed all income Tax Returns of the Management Company which are due after the Closing Date. All such income Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by applicable Law.
(d) The Operating Partnership shall prepare or cause to be prepared all other Tax Returns of the Management Company.
(e) Prior to Closing, the Management Company shall deliver to the REIT a properly executed certificate prepared in accordance with Treasury Regulations section 1.1445-2(b) certifying the non-foreign status of the Management Company and of each holder of the Management Company Interests and any similar affidavits or other forms required under applicable state, local or foreign Tax Laws.
(f) Neither the REIT nor the Operating Partnership makes any representations or warranties to the Management Company or any holder of a Management Company Interest regarding the Tax treatment of the Merger or the other Formation Transactions, or with respect to any other Tax consequences to the Management Company or any holder of a Management Company Interest of this Agreement, the Merger or the other Formation Transactions. The Management Company acknowledges that the Management Company and the holders of Management Company Interests are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other Formation Transactions and agreements contemplated hereby.
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acknowledges that the agreements contained herein and the transactions contemplated hereby and any actions taken in contemplation of the transactions contemplated hereby may conflict with, and may not have been contemplated by, the Organizational Documents of the Management Company or other agreements among one or more holders of Management Company Interests or one or more of the members of the Management Company. With respect to the Management Company and each property in which the Management Company Interests represent a direct or indirect interest, the Management Company expressly gives all consents (and any consents necessary to authorize the proper parties in interest to give all consents) and waivers it is entitled to give that are necessary or desirable to facilitate the contribution or other Formation Transactions relating to the Management Company or such property. In addition, the Management Company agrees that if the transactions contemplated hereby occur, this Agreement shall be deemed to be an amendment to the Organizational Documents of the Management Company to the extent the terms herein conflict with the terms thereof, including without limitation, terms with respect to allocations, distributions and the like. In the event the transactions contemplated by this Agreement do not occur, nothing in this Agreement shall be deemed to be or construed as an amendment or modification of, or commitment of any kind to amend or modify, the Organizational Documents of the Management Company, which shall remain in full force and effect without modification.
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ARTICLE VI
(a) | if to the REIT or the OP Parties: |
Xxxxxxx Industrial Realty, Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxx
(b) | if to the Management Company: |
c/o Rexford Industrial, LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxx
(a) “Accredited Investor” has the meaning set forth under Regulation D of the Securities Act.
(b) “Affiliate” means, with respect to any Person, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
(c) “Allocated Share” means an amount of Merger Consideration that would be distributed to a Pre-Formation Participant that is the holder of an interest in a Xxxxxxx Entity in accordance with the provisions of the existing Organizational Documents of such entity relating to distributions of distributable net proceeds from sales of directly or indirectly owned properties or assets, and assuming the sale of the relevant Target Asset or Target Assets that are directly or indirectly owned by such entity for a value equal to such Target Asset’s or Target Assets’ respective Equity Value(s).
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(d) “Alternate Transaction” means any transaction structure, other than that contemplated by this Agreement, pursuant to which the REIT, the Operating Partnership or any of their Subsidiaries acquire all or a portion of the interests in the Management Company or the assets held directly or indirectly by the Management Company in a transaction pursuant to which each holder of Management Company Interests receives the amount of cash, the number of OP Units and/or the number of REIT Shares that were to be received by such holder pursuant to this Agreement (or a portion thereof equal in value to the value of the portion of such assets acquired by the REIT, the Operating Partnership or any of their Subsidiaries pursuant to such Alternate Transaction); provided, that such structure will not (i) result in a breach of the Management Company’s governing documents and (ii) give rise to dissenters’ or appraisal rights by the members of the Management Company, unless such rights have fully waived by all such members in the Consent Forms.
(e) “Business Day” means any day that is not a Saturday, Sunday or legal holiday in the State of California.
(f) “Code” means the Internal Revenue Code of 1986, as amended, together with the rules and regulations promulgated or issued thereunder.
(g) “Consent Form” means the form provided to each holder of Pre-Formation Interests to consent to the Formation Transactions and to make such holder’s irrevocable elections with respect to consideration to be received by such holder in the Formation Transactions.
(h) “Elected OP Unit Percentage” means, with respect to the Merger Consideration to be received by any Pre-Formation Participant, the percentage of the Allocated Share that the Pre-Formation Participant has made a Valid Election to receive in the form of OP Units.
(i) “Elected REIT Shares Percentage” means, with respect to the Merger Consideration to be received by any Pre-Formation Participant, the percentage of the Allocated Share that the Pre-Formation Participant has made a Valid Election to receive in the form of REIT Shares.
(j) “Entity Specific Debt” has the meaning set forth in Schedule 6.02(c) hereto.
(k) “Equity Value” has the meaning set forth in Schedule 6.02(c) hereto.
(l) “Excluded Assets” means the assets identified on Schedule 5.05.
(m) “Formation Transaction Documentation” means all of the agreements (including this Agreement) and related documents substantially in the forms accompanying the Request for Consent dated February 22, 2013 and identified in Exhibit G hereto, pursuant to which all of the Xxxxxxx Entities and/or the Pre-Formation Interests are to be acquired by the REIT or the Operating Partnership, directly or indirectly, as part of the Formation Transactions.
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(n) “Formation Transactions” means the transactions contemplated by this Agreement and the other Formation Transaction Documentation.
(o) “Fund V Subsequent Investment Amount” has the meaning set forth in Schedule 6.02(c) hereto.
(p) “Governmental Authority” means any government or agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign.
(q) “Interim Period” has the meaning set forth in Schedule 6.02(c) hereto.
(r) “Laws” means laws, statutes, rules, regulations, codes, orders, ordinances, judgments, injunctions, decrees and policies of any Governmental Authority, including, without limitation, zoning, land use or other similar rules or ordinances.
(s) “Liens” means all pledges, claims, liens, charges, restrictions, controls, easements, rights of way, exceptions, reservations, leases, licenses, grants, covenants and conditions, encumbrances and security interests of any kind or nature whatsoever.
(t) “Lock-Up Agreement” means that certain Lock-Up Agreement, by and between the underwriters and each investor of the REIT and/or the Operating Partnership.
(u) “Management Company Material Adverse Effect” means any material adverse change in the assets, business, condition (financial or otherwise), results of operation or prospects of the Management Company, taken as a whole.
(v) “Offering Closing Date” means the closing date of the Offering.
(w) “Offering Document” means either (i) in the event the REIT undertakes a public Offering, the REIT’s final prospectus as filed with the SEC; or (ii) in the event the REIT undertakes a private Offering, the REIT’s final offering memorandum (together with any supplements and amendments thereto) used in the Offering.
(x) “Offering Price” means the initial offering price of a REIT Share in the Offering.
(y) “OP Material Adverse Effect” means any material adverse change in any of the assets, business, condition (financial or otherwise), results of operation or prospects of the REIT and each Operating Partnership Subsidiary, taken as a whole.
(z) “Operating Partnership Agreement” means the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as in effect immediately prior to the Effective Time.
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(aa) “Organizational Documents” means the certificate of formation, certificate of incorporation and bylaws, certificate of limited partnership and limited partnership agreement, limited liability company agreement or operating agreement, of the Management Company or each other applicable Person, as applicable.
(bb) “Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.
(cc) “Pre-Formation Interests” means the equity interests directly or indirectly held by the Pre-Formation Participants in the Xxxxxxx Entities and in the “Xxxxxxx Properties” as defined in that certain Confidential Request for Consent and Investment Election dated February 22, 2013.
(dd) “Pre-Formation Participants” means the holders of the equity interests in the relevant RIF Fund Entity and the Management Company, Sponsor and RI LLC immediately prior to the Formation Transactions, and shall include any other Person contributing any interest or Property to the REIT, the Operating Partnership or any Subsidiary thereof in the Formation Transactions.
(ee) “Property” means each real property owned directly or indirectly, in whole or in part, by the Xxxxxxx Entities.
(ff) “Registration Rights Agreement” means that certain Registration Rights Agreement, by and among the REIT, the Operating Partnership and the parties identified as a signatory on Schedule A thereto.
(gg) “Xxxxxxx Entity” means a RIF Fund Entity, the Management Company, Sponsor and RI LLC and each of their respective Subsidiaries, as applicable. As used herein, “Xxxxxxx Entities” refer to each Xxxxxxx Entity, collectively.
(hh) “Securities Act” means the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder.
(ii) “Subsidiary” of any Person means any corporation, partnership, limited liability company, joint venture, trust or other legal entity of which such Person owns (either directly or through or together with another Subsidiary of such Person) either (i) a general partner, managing member or other similar interest, or (ii)(A) ten percent (10%) or more of the voting power of the voting capital stock or other equity interests, or (B) ten percent (10%) or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other legal entity.
(jj) “Target Asset” has the meaning set forth in Schedule 6.02(c) hereto.
(kk) “Tax” means all federal, state, local and foreign income, gross receipts, license, property, withholding, sales, franchise, employment, payroll, goods and services, stamp, environmental, customs duties, capital stock, social security, transfer, alternative minimum, excise and other taxes, tariffs or governmental charges of any nature whatsoever, including estimated taxes, together with penalties, interest or additions to Tax with respect thereto, whether or not disputed.
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(ll) “Tax Matters Agreement” means that certain Tax Matters Agreement by and among the REIT, the Operating Partnership and the other parties identified as signatories therein.
(mm) “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
(nn) “Underwriting Agreement” means that certain underwriting agreement, by and between the REIT, the Operating Partnership and certain underwriters set forth therein, pursuant to which the REIT will issue and sell shares in the Offering.
(oo) “Valid Election” means, with respect to any Management Company Interest, an irrevocable election to receive all or a portion of its Allocated Share in the form of OP Units and/or REIT Shares as indicated on the properly completed and timely received Consent Form of the holder of the Management Company Interest or a Consent Form as to which any deficiencies have been waived by the Operating Partnership.
Section 6.05 GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of California, regardless of any Laws that might otherwise govern under applicable principles of conflicts of laws thereof.
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courts would have subject matter jurisdiction with respect to such dispute and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper.
(a) Upon any dispute, controversy or claim arising out of or relating to this Agreement or the enforcement, breach, termination or validity thereof (“Dispute”), the party raising the Dispute will give written notice to the other parties to the Dispute describing the nature of the Dispute following which the parties to such Dispute shall attempt for a period of ten (10) Business Days from receipt by the parties of notice of such Dispute to resolve such Dispute by negotiation between representatives of the parties hereto who have authority to settle such Dispute. All such negotiations shall be confidential and any statements or offers made therein shall be treated as compromise and settlement negotiations for purposes of any applicable rules of evidence and shall not be admissible as evidence in any subsequent proceeding for any purpose. The statute of limitations applicable to the commencement of a lawsuit shall apply to the commencement of an arbitration hereunder, except that no defense based on the running of the statute of limitations will be available based upon the passage of time during any such negotiation. Regardless of the foregoing, a party shall have the right to seek immediate injunctive relief pursuant to Section 6.08(c) below without regard to any such ten (10) Business Day negotiation period.
(b) Any Dispute (including the determination of the scope or applicability of this agreement to arbitrate) that is not resolved pursuant to Section 6.08(a) above shall be submitted to final and binding arbitration in California before one neutral and impartial arbitrator, in accordance with the Laws of the State of California for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures, as in effect on the date hereof. Each of the Operating Partnership, on the one hand, and the Management Company, on the other hand, shall appoint one arbitrator within fifteen (15) days of a demand for arbitration. If the Operating Partnership and the Management Company cannot mutually agree upon an arbitrator within such 15-day period, the arbitrator shall be appointed by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, as in effect on the date hereof. The arbitrator shall designate the place and time of the hearing. The hearing shall be scheduled to begin as soon as practicable and no later than sixty (60) days after the appointment of the arbitrator (unless such period is extended by the arbitrator for good cause shown) and shall be conducted as expeditiously as possible. The award, which shall set forth the arbitrator’s findings of fact and conclusions of law, shall be filed with JAMS and mailed to the parties no later than thirty (30) days after the close of the arbitration hearing. The arbitration award shall be final and binding on the parties and not subject to collateral attack. Judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.
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(c) Notwithstanding the parties’ agreement to submit all Disputes to final and binding arbitration before JAMS, the parties shall have the right to seek and obtain temporary or preliminary injunctive relief in any court having jurisdiction thereof. Such courts shall have authority to, among other things, grant temporary or provisional injunctive relief in order to protect any party’s rights under this Agreement. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect.
(d) The prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees, and the non-prevailing party shall pay all expenses and fees of JAMS, all costs of the stenographic record, all expenses of witnesses or proofs that may have been produced at the direction of the arbitrator, and the fees, costs, and expenses of the arbitrator. The arbitrator shall allocate such costs and designate the prevailing party or parties for these purposes.
(a) The parties hereto agree that they have had the opportunity to be represented by counsel during the negotiation, preparation and execution of this Agreement and, therefore, waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(b) The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Unless explicitly stated otherwise herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.
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Section 6.11 EQUITABLE REMEDIES. The parties agree that irreparable damage would occur to the Operating Partnership in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Operating Partnership shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by the Management Company and to enforce specifically the terms and provisions hereof in any federal or state court located in California, this being in addition to any other remedy to which the Operating Partnership is entitled under this Agreement or otherwise at law or in equity.
Section 6.15 WAIVER OF SECTION 1542 PROTECTIONS. As of the Closing Date, each of the parties hereto expressly acknowledges that it has had, or has had and waived, the opportunity to be advised by independent legal counsel and hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the California Civil Code and does so understanding and acknowledging the significance and consequence of such specific waiver of Section 1542 which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
[SIGNATURE PAGES FOLLOW]
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XXXXXXX INDUSTRIAL REALTY, INC., a Maryland corporation | ||
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Co-Chief Executive Officer |
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Co-Chief Executive Officer |
XXXXXXX INDUSTRIAL REALTY, L.P., a Maryland limited partnership | ||
By: | XXXXXXX INDUSTRIAL REALTY, INC., a Maryland Corporation | |
Its: | General Partner |
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Co-Chief Executive Officer |
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Co-Chief Executive Officer |
XXXXXXX FUND V MANAGER MERGER SUB LLC, a Delaware limited liability company | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Manager |
[Signature Page to Fund V Manager Merger Agreement]
XXXXXXX FUND V MANAGER, LLC, a Delaware limited liability company | ||
By: | XXXXXXX SPONSOR V LLC, a Delaware limited liability company | |
Its: | Managing Member |
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Management Committee Member |
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Management Committee Member |
[Signature Page to Fund V Manager Merger Agreement]