Exhibit 3.1
THIRD AMENDMENT
TO
THIRTEENTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PROLOGIS, L.P.
February 4, 2020
THIS THIRD AMENDMENT (this “Amendment”)
to the THIRTEENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of PROLOGIS, L.P. is made and entered into as of February
4, 2020.
W I T N E S S E T H:
WHEREAS, Prologis, L.P. (the “Partnership”),
a Delaware limited partnership, exists pursuant to that certain Thirteenth Amended and Restated Agreement of Limited Partnership
dated as of June 3, 2011 (as amended by the First Amendment dated as of February 27, 2014 and the Second Amendment, dated
as of October 7, 2015, and as it may be amended or supplemented from time to time, the “Partnership Agreement”),
and the Delaware Revised Uniform Limited Partnership Act;
WHEREAS, Prologis, Inc., a Maryland
corporation (the “Company”), is the sole general partner of the Partnership;
WHEREAS, the Company has entered
into an Agreement and Plan of Merger (as it may be amended or supplemented from time to time, the “Merger Agreement”),
by and among the Company, the Partnership, Lambda REIT Acquisition LLC (“Merger Sub”), Lambda OP Acquisition
LLC (“OP Merger Sub”), Liberty Property Trust (“LPT”), Liberty Property Limited
Partnership (“Liberty OP”) and Leaf Holdco Property Trust;
WHEREAS, the Merger Agreement provides,
among other things, that (i) the Company, certain of its subsidiaries and Merger Sub shall cause the contribution of all of the
outstanding equity interests of LPT to the Partnership (the “Contribution”) in exchange for the issuance
by the Partnership to certain of the Company’s subsidiaries of newly issued Common Units equal to the aggregate number of
shares of common stock, par value $0.01 per share, of the Company issued in the Topco Merger (as such term is defined in the Merger
Agreement) (the “First Unit Issuance”); (ii) immediately following the Contribution and Issuance
Effective Time, OP Merger Sub shall be merged with and into Liberty OP, with Liberty OP being the surviving entity and becoming
an indirect wholly owned subsidiary of the Partnership (the “Partnership Merger” and the date and time
at which the Partnership Merger becomes effective, the “Partnership Merger Effective Time”); (iii) each
of the limited partnership interests of Liberty OP (other than any Liberty OP Preferred Unit (as defined below)) that is issued
and outstanding immediately prior to the Partnership Merger Effective Time will automatically be converted into a number of new
validly issued Common Units in an amount equal to the Exchange Ratio (as defined in the Merger Agreement), and each holder of
Common Units will be admitted as a limited partner of the Partnership following the Partnership Merger Effective Time in accordance
with the of the Partnership Agreement; (iv) each of the partnership interests in Liberty OP designated as a “6.25% Series
I-2 Cumulative Redeemable Preferred Partnership Interest” (a “Liberty OP Preferred Unit”) under
the second amended and restated agreement of limited partnership of Liberty OP, as amended from time to time, issued and outstanding
immediately prior to the Partnership Merger Effective Time shall be automatically converted into one new validly issued limited
partnership interest in the Partnership to be designated as a “6.25% Series T Cumulative Redeemable Preferred Partnership
Unit” under the Partnership Agreement (the “New Preferred OP Units”) and each holder of New Preferred
OP Units shall be admitted as a limited partner of the Partnership in accordance with the terms of the Partnership Agreement;
and (v) in connection with the foregoing transactions, the Company, as the general partner of the Partnership, shall cause the
Partnership Agreement to be amended as described in the Merger Agreement;
WHEREAS, in connection with and in
furtherance of the foregoing, the Company desires to establish a class of partnership interests having the rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein,
such partnership interest to be expressed as a number of partnership units to be referred to as 6.25% Series T Cumulative Redeemable
Preferred Partnership Units;
WHEREAS, Section 4.3.C
of the Partnership Agreement provides that the General Partner may accept additional capital contributions of cash, real property
or other non-cash assets and in connection with any such additional capital contributions (of cash or property), the General Partner
is authorized to cause the Partnership from time to time to issue additional partnership units or other partnership interests in
one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating,
optional or other special rights, powers, and duties, including rights, powers, and duties senior to then existing limited partnership
interests, all as shall be determined by the General Partner in its sole and absolute discretion subject to Delaware law, and as
set forth by amendment to the Partnership Agreement, including without limitation: (i) the allocations of items of Partnership
income, gain, loss, deduction, and credit to such class or series of partnership interests; (ii) the right of each such class
or series of partnership interests to share in Partnership distributions; (iii) the rights of each such class or series of
partnership interests upon dissolution and liquidation of the Partnership; and (iv) the right to vote;
WHEREAS, in the event that the Partnership
issues additional partnership interests pursuant to Section 4.3.C of the Partnership Agreement, the General Partner shall
make such revisions to the Partnership Agreement (including but not limited to the revisions described in Sections 5.4,
6.2.C, and 8.6 thereof) as it determines are necessary to reflect the issuance of such additional partnership interests;
WHEREAS, pursuant to Sections
7.3.D(ii) and (iii) of the Partnership Agreement, the Partnership Agreement may be amended by the General Partner without
the Consent of Partners to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.C, the admission
of Partners (which may be effected through the replacement of Exhibit A with an amended Exhibit A), and
to set forth or amend the designations, rights, powers, duties and preferences of the holders of any additional Partnership Interests
issued pursuant to Article 4; and
WHEREAS, pursuant to Section 12.2.B
of the Partnership Agreement, the admission of any person as an Additional Limited Partner shall become effective on the date upon
which the name of such person is recorded on the books and records of the Partnership, following the receipt of the Capital Contribution
in respect of such Limited Partner, the documents set forth in Section 12.2.A of the Partnership Agreement and the
consent of the General Partner to such admission.
NOW, THEREFORE, pursuant to Sections 2.4
and 7.3.D(ii) and (iii) of the Partnership Agreement, the General Partner hereby amends the Partnership Agreement
as follows:
Section 1.
DEFINED TERMS.
Capitalized terms used but not defined herein
shall have the definitions assigned to such terms in the Partnership Agreement. If the same term is defined both herein and in
the Partnership Agreement, the definition herein shall supersede and replace in its entirety the definition set forth in the Partnership
Agreement for all purposes. The following defined terms used in this Amendment or elsewhere in the Partnership Agreement shall
have the meanings specified below:
“Series T Preferred Capital”
means a Capital Account balance equal to the product of (i) the number of Series T Preferred Units then held by the Partner multiplied
by (ii) the sum of $25 and any Preferred Distribution Shortfall per Series T Preferred Unit.
“Series T Preferred Limited Partner”
means any Person that holds Series T Preferred Units and is named as a Series T Preferred Limited Partner in the books and records
of the Partnership (including, if applicable, Exhibit A attached hereto, as such Exhibit may be amended from time to
time, to the extent applicable to the holding of such Series T Preferred Units as provided in Exhibit M hereto).
“Series T Preferred Unit”
means a Partnership Unit which is designated as a 6.25% Series T Cumulative Redeemable Preferred Partnership Units having the rights,
powers, privileges, restrictions, qualifications and limitations set forth in Exhibit M hereto and elsewhere in this
Amendment and the Partnership Agreement in respect of the Series T Preferred Limited Partner.
“Series T Priority Return”
shall mean an amount equal to 6.25% per annum, as the same may be adjusted pursuant to Section 3(a) of Exhibit M hereto,
of a 360-day year of twelve (12) 30-day months (and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on the ratio of the actual number of days elapsed in
such period to ninety (90) days), cumulative to the extent not distributed for any given distribution period pursuant to Article
5 of the Partnership Agreement, of the stated value of $25 per Series T Preferred Unit, commencing on the date of issuance
of such Series T Preferred Unit.
Section 2.
DEFINED TERMS AMENDMENTS.
The definition of “Junior Units”
in Section 1 of the Partnership Agreement is amended by inserting the following text at
the end of the last sentence:
“and the Series T Preferred
Units”
The definition of “Parity Preferred
Unit” in Section 1 of the Partnership Agreement is amended by inserting the following text in between the words “the Series S Preferred Units” and “with respect to distributions…”:
“and the Series T Preferred
Units”
The definition of “Partnership Interest”
in Section 1 of the Partnership Agreement is amended by inserting the following text to the last sentence in between the
words “the Series S Preferred Units” and “are the only Partnership Interests…”:
“and the Series T Preferred
Units”
The definition of “Preferred Unit”
in Section 1 of the Partnership Agreement is amended by inserting the following text at the end of the last sentence:
“and the Series T Preferred
Units”
The definition of “Priority Return”
in Section 1 of the Partnership Agreement is amended by inserting the following text at the end of the last sentence:
“and (viii) the Series T Preferred
Units, the Series T Priority Return”
Section 3.
EXHIBIT M TERMS.
In making distributions pursuant to Section 5.1
and Section 13.2 of the Partnership Agreement and allocations pursuant to Article 6 of the Partnership Agreement,
the General Partner of the Partnership shall take into account the provisions of Exhibit M hereto.
Section 4.
SECTION 6.2.B AMENDMENT.
Section 6.2.B.2(a) of the Partnership
Agreement is amended by inserting the following text at the end of the parenthetical thereof:
“and the Series T Preferred
Capital”
Section 5.
SECTION 6.2.C AMENDMENT.
Section 6.2.C of the Partnership
Agreement is amended by inserting the following text at the end of the first sentence thereof:
“and the Series T Preferred
Units”
Section 6.
NEW EXHIBIT M.
The Partnership Agreement is hereby supplemented
by adding after Exhibit L thereof a new Exhibit M as follows:
EXHIBIT M
SERIES T PREFERRED UNITS
| Section 1. | Capital Contributions. |
The initial Capital Contribution of each
Series T Preferred Limited Partner is set forth opposite the name of such Series T Preferred Limited Partner on Exhibit A
hereto.
Section 2. Designation and Number. A series of Partnership Units in the Partnership designated as the “6.25% Series T Cumulative Redeemable Preferred Partnership Units” (the “Series T Preferred Units”) is hereby established. The maximum number of Series T Preferred Units shall be 213,483.
(a) Payment
of Distributions. Subject to the rights of holders of Parity Preferred Units and holders of Partnership Units ranking
senior to the Series T Preferred Units as to payment of distributions, pursuant to Section 5.1 and Section 24.3.A
of the Partnership Agreement, holders of Series T Preferred Units will be entitled to receive, when, as and if declared by
the Partnership acting through the General Partner, out of Available Cash, cumulative preferential cash distributions at the rate
per annum of 6.25% of the stated value of $25 per Series T Preferred Unit. All distributions shall be cumulative, shall accrue
from the original date of issuance and will be payable (i) quarterly in arrears, on or before March 31, June 30, September
30 and December 31 of each year commencing on the first such date to occur after the original date of issuance, and (ii) in the
event of a redemption of Series T Preferred Units, on the redemption date (each a “Series T Preferred Unit Distribution
Payment Date”). The amount of the distribution payable for any period will be computed on the basis of a 360-day year
of twelve (12) 30-day months and for any period shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed based on the ratio of the actual number of days elapsed in such period to
ninety (90) days. If any date on which distributions are to be made on the Series T Preferred Units is not a Business Day, then
payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if
made on such date. Distributions on the Series T Preferred Units will be made to the holders of record of the Series T Preferred
Units on the relevant record dates to be fixed by the Partnership acting through the General Partner, which record dates shall
in no event exceed fifteen (15) Business Days prior to the relevant Preferred Unit Distribution Payment Date.
(b) Distributions
Cumulative. Distributions on the Series T Preferred Units will accrue whether or not the terms and provisions of any agreement
of the Partnership, including any agreement relating to its indebtedness at any time prohibit the declaration, setting aside for
payment or current payment of distributions, whether or not the Partnership has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such distributions are authorized. Accrued but unpaid distributions
on the Series T Preferred Units will accumulate as of the Series T Preferred Unit Distribution Payment Date on which they first
become payable. Distributions on account of arrears for any past distribution periods may be declared and paid at any time, without
reference to a regular Series T Preferred Unit Distribution Payment Date to holders of record of the Series T Preferred Units
on the record date fixed by the Partnership acting through the General Partner, which date shall not exceed fifteen (15) Business
Days prior to the payment date. Accumulated and unpaid distributions will not bear interest.
(c) Priority
as to Distributions.
(i)
So long as any Series T Preferred Units are outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any Junior Units, nor shall any cash or other property be set aside
for or applied to the purchase, redemption or other acquisition for consideration of any Series T Preferred Units, any Parity
Preferred Units or any Junior Units, unless, in each case, all distributions accumulated on all Series T Preferred Units and all
classes and series of outstanding Parity Preferred Units have been paid in full or a sum sufficient for such full payment has
been irrevocably deposited in trust for immediate payment. The foregoing sentence will not prohibit (a) distributions payable
solely in Junior Units, (b) the conversion or exchange of Junior Units or Parity Preferred Units into Partnership Interests of
the Partnership ranking junior to the Series T Preferred Units as to distributions and rights upon the voluntary or involuntary
liquidation, dissolution or winding up of the Partnership, (c) the redemption of Partnership Interests corresponding to any
Parity Preferred Stock or Junior Stock to be purchased by the General Partner pursuant to the Charter to preserve the General
Partner’s status as a real estate investment trust; provided that such redemption shall be upon the same terms as
the corresponding stock purchase pursuant to the Charter or (d) the authorization, declaration, payment, or setting apart for
payment, of distributions of cash or other property on or with respect to Parity Preferred Units (including Series Q Preferred
Units) for or in respect of the then current distribution period; provided that full cumulative distributions have been
or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment
on the Series T Preferred Units for all full quarterly distribution periods terminating on or prior to the distribution payment
date for such Parity Preferred Units.
(ii)
So long as distributions have not been paid in full (or a sum sufficient for such full payment is not irrevocably deposited
in trust for immediate payment) upon the Series T Preferred Units, all distributions authorized and declared on the Series T Preferred
Units and all classes or series of outstanding Parity Preferred Units shall be authorized and declared so that the amount of distributions
authorized and declared per Series T Preferred Unit and such other classes or series of Parity Preferred Units shall in all cases
bear to each other the same ratio that accrued distributions per Series T Preferred Unit and such other classes or series of Parity
Preferred Units (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if
such class or series of Parity Preferred Units do not have cumulative distribution rights) bear to each other. No interest or any
sum of money in lieu of interest shall be payable in respect of any distribution, payment or payments on Series T Preferred
Units which may be in arrears.
(d) No Further Rights. Holders of Series T Preferred Units shall not be entitled to any distributions, whether
payable in cash, other property or otherwise, in excess of the full cumulative distributions described in this Amendment.
| Section 5. | Liquidation Proceeds. |
(a) Upon
any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Partnership, distributions on the Series
T Preferred Units shall be made in accordance with Article 13 of the Partnership Agreement.
(b) Notice.
Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be
given by (i) fax and (ii) by first class mail, postage prepaid, not less than twenty (20) and not more than sixty (60) days prior
to the payment date stated therein, to each record holder of the Series T Preferred Units at the respective addresses of such
holders as the same shall appear on the transfer records of the Partnership.
(c)
No Further Rights. After payment of the full amount of the liquidating distributions to which they are entitled,
the holders of Series T Preferred Units will have no right or claim to any of the remaining assets of the Partnership.
(d) Consolidation,
Merger or Certain Other Transactions. The consolidation or merger of the Partnership with or into any other corporation,
trust, partnership, limited liability company or other entity (or of any other corporation, trust, partnership, limited liability
company or other entity with or into the Partnership), or the sale, lease, exchange, transfer or conveyance of all or substantially
all of the property or business of the Partnership shall not be deemed to constitute a liquidation, dissolution or winding-up
of the Partnership; provided that upon the sale, lease, exchange, transfer or conveyance of all or substantially all of
the property or business of the Partnership, if the common stock of the General Partner shall no longer be traded on a nationally
recognized exchange, prior to the Partnership making any distributions to the holders of Junior Units, the Partnership shall set
aside and reserve an amount equal to the aggregate Capital Accounts of all Parity Preferred Units at the time of such sale, lease,
exchange, transfer or conveyance of all or substantially all of the property or business of the Partnership and shall not distribute
the amounts so reserved until the liquidation of the Partnership and distribution of amounts pursuant to Article 13 of the Partnership
Agreement.
(a) Option
of Series T Partners to Cause Optional Redemption.
(i) Each
holder of the Series T Preferred Units may, at its sole option, at any time after the date of this amendment, but not more
than one time during any calendar quarter, require the Partnership to redeem such holder’s Series T Preferred Units, in
whole or in part (but, with respect to partial redemptions, not in an amount less than one thousand (1,000) units in any
given redemption), at any time or from time to time, upon ten (10) days written notice, at a redemption price, payable in
cash, equal to the original Capital Contribution of such holder with respect to such Units plus the cumulative Series T
Priority Return with respect to such Units, whether or not declared, to the redemption date to the extent not previously
distributed (the “Series T Redemption Price”).
(b) Mandatory
Redemption at the Option of the Partnership. On or after the date following the date of expiration of the Protected Period
with respect to any Series T Preferred Holder, the Partnership at its sole option shall have the right to redeem the Series T
Preferred Units held by any Series T Preferred Holder, in whole or in part, at any time or from time to time, upon not less
than thirty (30) nor more than sixty (60) days written notice, at a redemption price, payable in cash, equal to the Series T Redemption
Price for such holder; provided, however, that no redemption pursuant to this Section 6 will be permitted if the
Series T Redemption Price does not equal or exceed the original Capital Contribution of such holder plus the cumulative Series
T Priority Return, as the case may be, whether or not declared, to the redemption date to the extent not previously distributed.
(c) Procedures
for Redemption.
(i)
In the case of a redemption at the option of a holder of Series T Preferred Units pursuant to Section 6(a), such holder
shall provide written notice of such redemption to the Partnership at the executive offices of its general partner. The Partnership
will pay the Series T Redemption Price within ten (10) days of receipt of the holder’s notice of redemption. If the Series
T Preferred Units are evidenced by a certificate and if fewer than all Series T Preferred Units evidenced by any certificate are
being redeemed, a new certificate shall be issued, upon surrender of the certificate evidencing all Series T Preferred Units,
evidencing the unredeemed Series T Preferred Units without cost to the holder thereof. On and after the date of such redemption,
distributions will cease to accumulate on the Series T Preferred Units or portions thereof called for redemption, unless the Partnership
defaults in the payment thereof. If any date fixed for redemption of Series T Preferred Units is not a Business Day, then payment
of the Series T Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay). If payment of the Series T Redemption Price is not made by the Partnership
on the redemption date, distributions on such Series T Preferred Units will continue to accumulate from the original redemption
date to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes
of calculating the applicable Redemption Price.
(ii) In
the case of a redemption at the option of the Partnership pursuant to Section 6(b), notice of redemption (which shall be
irrevocable) will be mailed by the Partnership, by certified mail, postage prepaid, not less than thirty (30) nor more than
sixty (60) days prior to the redemption date, addressed to the respective holders of record of the Series T Preferred Units
at their respective addresses as they appear on the records of the Partnership. No failure to give or defect in such notice
or in the transmission thereof shall affect the validity of the proceedings for the redemption of any Series T Preferred
Units except as to the holder to whom such notice was defective or not given or received. In addition to any information
required by law, each such notice shall state: (1) the redemption date; (2) the Series T Redemption Price; (3) the
aggregate number of Series T Preferred Units to be redeemed and if fewer than all of the outstanding Series T Preferred Units
are to be redeemed, the number of Series T Preferred Units to be redeemed held by such holder; (4) the place or places where
the Series T Preferred Units are to be surrendered for payment of the Redemption Price; (5) that distributions on the Series
T Preferred Units to be redeemed will cease to accumulate on such redemption date; and (6) that payment of the Redemption
Price will be made upon presentation and surrender of such Series T Preferred Units.
(iii)
If the Series T Preferred Units are evidenced by a certificate and if fewer than all Series T Preferred Units evidenced
by any certificate are being redeemed, a new certificate shall be issued, upon surrender of the certificate evidencing all Series
T Preferred Units, evidencing the unredeemed Series T Preferred Units without cost to the holder thereof. On and after the date
of such redemption, distributions will cease to accumulate on the Series T Preferred Units or portions thereof called for redemption,
unless the Partnership defaults in the payment thereof. If any date fixed for redemption of Series T Preferred Units is not a Business
Day, then payment of the Series T Redemption Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such delay). If payment of the Series T Redemption Price
is not made by the Partnership on the redemption date, distributions on such Series T Preferred Units will continue to accumulate
from the original redemption date to the date of payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the applicable Redemption Price.
(a)
Holders of the Series T Preferred Units will not have any voting rights or right to consent except as set forth below.
(b) So
long as any Series T Preferred Units remain outstanding, the Partnership shall not, without the affirmative vote of the
holders of at least two-thirds of the Series T Preferred Units outstanding at the time, (i) (A) authorize or create, or
increase the authorized or issued amount of, any class or series of Partnership Interests senior to the Series T Preferred
Units with respect to payment of distributions or rights upon liquidation, dissolution or winding-up, (B) reclassify any
Partnership Interests of the Partnership into any such senior Partnership Interest, or (C) create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any such senior Partnership Interests; (ii) (A)
authorize or create, or increase the authorized or issued amount of any Parity Preferred Units, (B) reclassify any
Partnership Interest into a Parity Preferred Unit, or (C) create, authorize or issue any obligations or security convertible
into or evidencing the right to purchase any Parity Preferred Unit; provided, however, that restrictions
contained in this clause (ii) of this paragraph (b) shall apply only to Parity Preferred Units that are issued to an
Affiliate of the Partnership other than on arms’ length terms, and to no other issuance, including, without limitation,
an issuance to the General Partner, the purpose of which is to allow the General Partner to issue corresponding Preferred
Shares to persons who are not Affiliates of the Partnership; (iii) either (A) consolidate or merge into or with any
corporation or other entity or (B) amend, alter or repeal the provisions of the Partnership Agreement, whether by merger
or consolidation or otherwise, in such a way that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series T Preferred Units or the holders thereof; provided, however,
that with respect to the occurrence of a merger or consolidation, so long as (1) the Partnership is the surviving entity
and the Series T Preferred Units remain outstanding with the terms thereof unchanged, or (2) the resulting, surviving or
transferee entity is a partnership, limited liability company or other pass-through entity organized under the laws of any
state, and such entity substitutes for the Series T Preferred Units other interests in such entity having substantially the
same terms and rights as the Series T Preferred Units, including with respect to distributions, redemption, tax protection,
voting rights and rights upon liquidation, dissolution or winding-up, then the occurrence of any such event shall not be
deemed to materially and adversely affect the rights, privileges or voting powers of the holders of the Series T Preferred
Units; provided, further, that any increase in the amount of Partnership Interests or the creation or issuance
of any other class or series of Partnership Interests shall not be deemed to materially and adversely affect the rights,
preferences, privileges or voting powers of the Series T Preferred Units, if such Partnership Units rank (y) junior to the
Series T Preferred Units with respect to payment of distributions or the distribution of assets upon liquidation, dissolution
or winding up, or (z) on a parity with the Series T Preferred Units with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up; provided, however, that any Preferred Units
issued in reliance on the preceding clause (z) shall have been issued to an Affiliate of the Partnership on arms’
length terms, or to the General Partner in order to allow the General Partner to issue corresponding Preferred Shares to
persons who are not Affiliates of the Partnership; or (iv) amend or modify the terms of this Amendment; provided, however,
that with respect to clauses (i) and (ii) of this paragraph (b), if (1) the holders of the then outstanding Parity Preferred
Units other than the Series T Preferred Units shall have approved such action and (2) the Series T Preferred Units
are affected by such action in substantially the same manner as are the then outstanding Parity Preferred Units, then the
holders of the Series T Preferred Units shall be deemed to have approved such action without the need for any vote of
such holders. In the event of any conflict or inconsistency between this Section 7 and Article 14 of the
Partnership Agreement, this Section 7 shall control.
Section 8. Transfer Restrictions. The Series T Preferred Units shall be subject to the provisions of Article 11 of the Partnership Agreement; provided, however, that the General Partner shall act reasonably in exercising its discretion pursuant to the provisions of Article 11 of the Partnership Agreement and shall not withhold its consent to any transfer to any Person (other than, for the avoidance of doubt, pursuant to Section 11.6.E(ix) of the Partnership Agreement), and the admission of such Person as a Substituted Limited Partner, which Person does not violate the requirements of Section 11.6.E of the Partnership Agreement and such transfers do not cause the total number of holders of Series T Preferred Units which would be considered partners under Treasury Regulations Section 1.7704-1(h)(3), at any time the Partnership is satisfying the private placement safe harbor of Treasury Regulations Section 1.7704-1(h), to exceed the lesser of (i) six (6) and (ii) the maximum number that would permit the Partnership to continue to satisfy such safe harbor (but in assessing the status of such safe harbor, (1) substituting “90” for “100”; and (2) taking into account any number of partners that the General Partner reasonably anticipates becoming partners within the meaning of the Treasury Regulations Section 1.7704-1(h)(3) within six months of the date of such transfer by the Series T Preferred Unit holders).
| Section 9. | No Exchange or Conversion Rights. |
(a) Holders of Series T Preferred Units shall not be entitled to any Redemption rights provided to Limited Partners pursuant
to Section 8.6 of the Partnership Agreement.
(b) Except
as set forth in this Amendment, the holders of the Series T Preferred Units shall not have any rights to convert, redeem
or exchange their Series T Preferred Units for any other property (including cash) of the Partnership or the General Partner,
including for units of any other class or series of units or into any other securities of, or interest in, the Partnership or
the General Partner.
| Section 10. | No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series T Preferred
Units. |
Section 11. Admission of Limited Partners: Exhibits to Partnership. In accordance with Article 12 of the Partnership Agreement, the Series T Preferred Partners are hereby admitted as Additional Limited Partners. Exhibit A to the Partnership Agreement is hereby amended to reflect the issuance of the Series T Preferred Units provided for herein.
Section 12. Tax Protection Provisions for the Series T Preferred Partners. The holders of the Series T Preferred Units shall be entitled to certain rights with respect to the ownership of their Interests as follows:
(a) Tax
Protection Definitions.
(i)
“Aggregate Protected Amount Per Protected Partner” shall mean, for each Protected Partner, the amount
set forth in Exhibit B to this Amendment with respect to such Protected Partner.
(ii)
“Guarantee Opportunity” shall have the meaning set forth in Section 12(b).
(iii)
“Indirect Owner” means, in the case of a Protected Partner that is an entity that is classified as a
partnership or disregarded entity for federal income tax purposes, any person owning an equity interest in such Protected Partner,
and, in the case of any Indirect Owner that itself is an entity that is classified as a partnership or disregarded entity for federal
income tax purposes, any person owning an equity interest in such entity.
(iv)
“Protected Partners” shall mean the Partners listed on Exhibit A on the date of the execution
of this Amendment and any person who holds Protected Units and acquired such Protected Units from a Protected Partner in a transaction
in which such transferee’s adjusted basis, as determined for federal income tax purposes, is determined, in whole or in part,
by reference to the adjusted basis of the Protected Partner in such Protected Units. Notwithstanding the foregoing, a person who
acquires Protected Units as the result of the death of a Protected Partner shall not be considered a Protected Partner with respect
to such Protected Units if such death results in a step-up in tax basis in such Protected Units.
(v)
“Protected Period” shall mean, for each Protected Partner, the period identified for such Protected Partner
in Exhibit B.
(vi) “Protected
Units” shall mean (1) solely those Series T Preferred Units issued on the date of the execution of this Amendment
and held by a Protected Partner and (2) any Partnership Units thereafter issued by the Partnership to Protected Partners in
exchange for Protected Units held by Protected Partners in a transaction in which the transferee’s adjusted basis in
the issued Partnership Units is determined, in whole or in part, by reference to the transferee’s basis in Protected
Units. Notwithstanding the foregoing, a Protected Unit shall cease to constitute a Protected Unit upon (1) the death of the
Protected Partner holding such Protected Unit and such death results in a step-up in the tax basis such Protected Unit or
(2) the sale, exchange, transfer or other disposition of such Protected Unit (other than any sale or exchange
transaction in which the transferee’s basis is determined, in whole or in part, by reference to the adjusted basis of
the transferor). In addition, upon the death of any Indirect Owner in a Protected Partner (if such death results in a step-up
in the tax basis in such Protected Units), or upon an Indirect Owner’s sale, exchange, transfer or other disposition of
some or all of such Indirect Owner’s equity interest in a Protected Partner (other than any sale or exchange
transaction in which the transferee’s basis is determined, in whole or in part, by reference to the adjusted basis of
the transferor Indirect Owner), the Protected Units treated as held by such Protected Partner shall be reduced such that the
Protected Units held by such Protected Partner shall equal the Protected Units that would have been held by the Indirect
Owners in the aggregate, following such event, had the Indirect Owners directly received Protected Units in the Contribution
and the Indirect Owner had either directly transferred a portion of such Protected Units or died holding such Protected Units
(if such death results in a step-up in the tax basis such Protected Units and taking into account all prior transactions
involving the death of an Indirect Owner in such Protected Partner or the sale, exchange, transfer or other disposition of an
Indirect Owner’s equity interest in such Protected Partner (other than a sale or exchange transaction in which the
transferee’s basis is determined in whole or in part by reference to the adjusted basis of the transferor Indirect
Owner)).
(vii)
“Qualifying Debt” shall mean indebtedness of the Partnership, directly or indirectly, provided
that (i) such indebtedness is a recourse liability of the Partnership with respect to which the holder has recourse against all
or substantially all of the assets of the Partnership in the event there is an event of default under the indebtedness, and (ii)
no holder of such indebtedness, to the knowledge of the Partnership or the General Partner, has an interest in the Partnership
other than as a creditor or is related to a person who has an interest in the Partnership other than as a creditor, in each case
within the meaning of Treasury Regulations Section 1.465-8.
(b) Obligation
of Partnership to Provide Debt Protection.
(i) The
Partnership, during the Protected Period, shall make available to each Protected Partner the opportunity (a
“Guarantee Opportunity”) to have such Protected Partner or its Indirect Owners guarantee Qualifying Debt
substantially in the form of the Guaranty of Collection attached as Exhibit C to this Amendment (as may be amended
from time to time, in the General Partner’s reasonable discretion, in order to comply with the form required in Section
12(b)(ii)) on the date upon which the Partnership Merger becomes effective. Any such Guarantee Opportunity will be made
available to each Protected Partner in an amount equal to the amount listed in Exhibit B as the Aggregate Protected
Amount Per Protected Partner; provided that the Aggregate Protected Amount Per Protected Partner with respect to a Protected
Partner shall be reduced to the extent that the Protected Units with respect to such Protected Partner are redeemed pursuant
to Section 6 or to the extent that the Protected Units with respect to such Protected Partner otherwise cease to be Protected
Units. Each Protected Partner and its Indirect Owners may allocate such Guarantee Opportunity in any manner they choose. In
the event that, during the Protected Period, the Partnership refinances or otherwise no longer continues to maintain any
Qualifying Debt with respect to which one or more Protected Partners (or their Indirect Owners) that have executed the
Guaranty of Collection, the Partnership shall make available to each such Protected Partner or Indirect Owner a new Guarantee
Opportunity to guarantee an amount of the new Qualifying Debt equal to the amount of the refinanced or repaid Qualifying Debt
that was guaranteed by such Protected Partner or Indirect Owner immediately prior to the date of the refinancing or repayment
pursuant to the Guaranty of Collection. The Partnership shall provide notice of the proposed refinancing or repayment and
related Guarantee Opportunity to each affected Protected Partner at least fifteen (15) Business Days in advance of the
closing of such refinancing or repayment.
(ii)
Any such Guaranty Opportunity shall be in the form and substance as required under the Treasury Regulations (including,
temporary, proposed and final Treasury Regulations and as such regulations may be amended from time to time) promulgated under
Sections 752 and 704 of the Code in order for such Guaranty Opportunity to be recognized as a payment obligation for purposes of
Treasury Regulations Section 1.752-2, as reasonably determined by the General Partner.
(iii)
Neither the Partnership nor the General Partner makes any representation or warranty to any Protected Partner or Indirect
Owner that providing a guarantee entered into pursuant to this Section 12(b) will be respected for federal income tax purposes
as providing such Protected Partner or Indirect Owner with an allocation of any such liability for purposes of Code Section 752
or as causing such Protected Partner or Indirect Owner to be “at risk” with respect to such liability for purposes
of Code Section 465; provided, however, that the Partnership shall report debt so guaranteed as allocable for such
purposes to the extent provided or permitted under the Code, the applicable Treasury Regulations, or other appropriate authority.
(c) Indemnification for Breaches of Section 12(b).
(i) In
the event that the Partnership breaches its obligations to a Protected Partner (or an Indirect Owner thereof) set forth in
Section 12(b), each such Protected Partner shall receive from the Partnership as damages an amount equal to the aggregate
federal, state and local income taxes incurred by such Protected Partner (or Indirect Owner thereof) as a result of the gain
recognized by such Protected Partner (or Indirect Owner thereof) by reason of such breach plus an additional amount so that,
after the payment by such Protected Partner (or Indirect Owner thereof) of all taxes on amounts received pursuant to this
Section 12(c), such Protected Partner (or Indirect Owner thereof) retains an amount equal to its total tax liability incurred
as a result of such breach. For purposes of the preceding sentence, (i) all income arising from a transaction or event that
is treated as ordinary income under the applicable provisions of the Code and all payments under this Section 12(c)(i) shall
be treated as subject to federal, state and local income tax at an effective tax rate imposed on ordinary income of
individuals residing in the city and state of residence of such Protected Partner, determined using the maximum federal rate
of tax on ordinary income and the maximum state and local rates of tax on ordinary income then in effect in such city and
state, (ii) all income arising from a transaction or event that is treated as “unrecaptured section 1250 gain”
within the meaning of Code Section 1(h)(6) with respect to such Protected Partner shall be subject to federal, state and
local income tax at the effective tax rate imposed on the unrecaptured section 1250 gain of individuals residing in the city
and state of residence of such Protected Partner, (iii) all other income arising from the transaction or event shall be
subject to federal, state, and local income tax at the effective tax rate imposed on long-term capital gains of individuals
residing in the city and state of residence of such Protected Partner, determined using the maximum federal, state and local
rates on long-term capital gains then in effect, (iv) any amounts giving rise to a payment pursuant to this Section 12(c)(i)
will be determined assuming that the transaction or event giving rise to the Partnership’s obligation to make a payment
was the only transaction or event reported on the Protected Partner’s tax return (i.e., without giving effect to any
loss carry forwards or other deductions attributable to such Protected Partner); provided, however, that tax
effect will be given to any suspended losses of a Protected Partner (or Indirect Owner thereof) with respect to its direct or
indirect investment in the Partnership, (v) any amounts payable with respect to state and local income taxes shall be assumed
to be deductible for federal income tax purposes to the fullest extent of the law, and (vi) any amounts payable with respect
to local income taxes shall be assumed to be deductible for state income tax purposes to the fullest extent of the law. The
Partnership shall be considered to have satisfied its obligations under Section 12(b), and therefore shall have no liability
under this Section 12(c) for breach of such Section 12(b), if it offers a Protected Partner a Guarantee Opportunity in
accordance with Section 12(b), and such Protected Partner fails to accept such Guarantee Opportunity. In no event shall the
Partnership’s liability under this Section 12(c) with respect to any Protected Partner for a breach of Section 12(b)
exceed such Protected Partner’s tax on gain recognized with respect to such Protected Partner’s Aggregate
Protected Amount Per Protected Partner plus any additional amounts payable so that such Protected Partner retains an amount
equal to the tax on any gain recognized with respect to such Aggregate Protected Amount Per Protected Partner.
(ii)
Notwithstanding any provision of this Agreement to the contrary, the sole and exclusive rights and remedies of any Protected
Partner (or Indirect Owner thereof) for a breach or violation of the covenants set forth in Section 12(b) shall be a claim for
damages against the Partnership, computed as set forth in Section 12(c), and no Protected Partner (or Indirect Owner thereof) shall
be entitled to pursue a claim for specific performance of the covenants set forth in Section 12(b).
Section 13. Notice of Death and Sale Events. Each Protected Partner hereby covenants and agrees to provide, on its own behalf or through its legal representatives, the Partnership with written notice of any change in the direct or indirect ownership of Protected Units (including, but not limited to, the death of such Protected Partner or any Indirect Owner thereof) promptly after any such change in ownership.
| Section 14. | In-Kind Redemption of Series T Preferred Units. |
(a) Subject
to a minimum $5,000,000 aggregate threshold for Series T Preferred Units being redeemed in any single in-kind redemption for
one or more properties and the conditions and limitations set forth below, any holder of Series T Preferred Units or group of
such holders (“In-Kind Redeeming Preferred Partners”) may request that the Partnership redeem all, but not
less than all, of their Series T Preferred Units for an in-kind distribution of one or more properties identified by such
In-Kind Redeeming Preferred Partners (“Identified Property”) which may include either (i) properties
held by the Partnership, but only to the extent the distribution of such property is consented to in writing by the General
Partner which consent may be granted or withheld in its sole discretion (“Owned Properties”), or (ii)
properties acquired by the Partnership from third parties (“New Properties”). Subject to Section 14(e),
such Owned Properties or New Properties shall have a net equity value equal to the Series T Redemption Price of the Series T
Preferred Units being redeemed (which value shall be 97.5% of the Series T Redemption Price on such Series T Preferred Units
being redeemed in the case of New Properties), after taking into account such indebtedness as the Preferred Limited Partner
Representative directs the Partnership to assume, incur or take “subject to” in the case of New Properties. The
In-Kind Redeeming Preferred Partners shall appoint a single representative, in writing, in connection with a specific
redemption pursuant to Section 14 to coordinate certain matters and exercise all of the rights of the In-Kind Redeeming
Preferred Partners set forth in Section 14 (“Preferred Limited Partner Representative”); provided
that if all In-Kind Redeeming Preferred Partners in connection with a specific redemption pursuant to Section 14 do not
designate a Preferred Limited Partner Representative in writing, the General Partner shall designate one of the In-Kind
Redeeming Preferred Partners as the Preferred Limited Partner Representative and such designation shall be conclusive for all
purposes of this Agreement. The financing of an Identified Property prior to a redemption, the coordination of any guaranties
or similar arrangements necessary to address the tax protection needs of the In-Kind Redeeming Preferred Partners, and the
negotiation, if necessary, of the purchase and sale contract relating to the properties, shall be arranged for and
coordinated by the Preferred Limited Partner Representative. The Partnership’s only obligation with respect to the
financing of any Owned or New Property shall be to reasonably cooperate with the Preferred Limited Partner Representative to
arrange for the incurrence, assumption or taking of title “subject to” such financing and neither the Partnership
nor the General Partner shall be required to incur any costs, including but not limited to application fees, assumption fees,
counsel fees, mortgage recording or transfer fees, or any personal liability (beyond its interest in the applicable New
Properties) under any financing incurred or assumed in connection with the acquisition of any Owned or New Properties, except
for liability as a result of the Partnership’s own acts or omissions pursuant to any “carveouts” from
non-recourse provisions, and except for liability to fund such down payments and equity contributions as may be necessary to
satisfy the loan to value and other underwriting requirements of the lender (which amount, subject to an increase of up to
10% of the appraised value of the property pursuant to Section 14(e), shall not be in excess of the Series T Redemption Price
of the Series T Preferred Units being redeemed for Owned Properties or 97.5% of the Series T Redemption Price of the Series T
Preferred Units being redeemed for New Properties). In-Kind Redeeming Preferred Partners may exercise this right at any time.
The Partnership and the General Partner shall not be responsible for the tax treatment of the transaction to the In-Kind
Redeeming Preferred Partners. As a precondition to the Partnership’s obligation to cooperate under this Section 14, the
In-Kind Redeeming Preferred Partners must acknowledge that neither the Partnership nor the General Partner or any of their
Affiliates shall have any responsibility for any action, failure to act or breach of any agreement by the seller or any
lender with respect to the New Properties so long as the Partnership, the General Partner or such Affiliates, as applicable,
have used commercially reasonable efforts, to the extent they have the ability to do so, to prevent such action, failure to
act or breach. The Partnership and the General Partner shall report any distribution of Identified Properties to In-Kind
Redeeming Preferred Partners as tax-free for applicable income tax purposes to the extent provided or permitted under the
Code, the applicable Treasury Regulations, or other appropriate authority.
(b)
In connection with a redemption of Series T Preferred Units in exchange for New Properties, the In-Kind Redeeming Preferred
Partners may request that the Partnership acquire stabilized properties equal to 97.5% of the Series T Redemption Price of their
Series T Preferred Units and the Partnership shall have the reasonable approval rights, as described below, regarding the selection
of any New Properties. The Preferred Limited Partner Representative shall negotiate the purchase and sale contract relating to
New Properties and will endeavor to negotiate a usual and customary agreement with the reasonable cooperation of the Partnership.
In connection with the redemption of the applicable Series T Preferred Units in exchange for the New Properties, the sales/redemption
contract will be on terms and conditions no less favorable than those agreed to by the Preferred Limited Partner Representative
in connection with the purchase of the New Properties. In exercising its right to approve the purchase of New Properties pursuant
to this (b), the General Partner may consider, among other matters, (i) whether the asset is stabilized and does not require capital
expenditures; (ii) whether the property produces sufficient cash flow; (iii) whether there are unusual environmental or any other
risks associated with the property; (iv) whether the property is insurable without undue expense; and (v) the terms of the proposed
purchase and sale agreement. Following the acquisition of such properties by the Partnership (or a single member limited liability
company wholly-owned by the Partnership), the In-Kind Redeeming Preferred Partners shall have the right to require the Partnership
to distribute such New Properties or limited liability company interests to them in redemption of the Series T Preferred Units
of the In-Kind Redeeming Preferred Partners being redeemed (the “Call Right”) and the Partnership shall have
the right to require the In-Kind Redeeming Preferred Partners to acquire the New Properties or limited liability company interests
in redemption of the Series T Preferred Units of the In-Kind Redeeming Preferred Partners being redeemed based upon the greater
of the then appraised value of the New Properties or the cost of acquiring the New Properties and of any improvements made by the
Partnership to the New Properties. New Properties may be transferred by the Partnership to the applicable In-Kind Redeeming Preferred
Partners at any time between the 90th and the 110th day following the acquisition of the subject New Properties upon not less than
thirty (30) days written notice from the Partnership to the applicable In-Kind Redeeming Preferred Partners and the applicable
In-Kind Redeeming Preferred Partners may require the Partnership to transfer such New Properties to them pursuant to the Call Right
any time between the 180th and the 200th day following the acquisition of the subject New Properties upon not less than thirty
(30) days notice from the applicable In-Kind Redeeming Preferred Partners to the Partnership.
(c)
In connection with a redemption of Series T Preferred Units in exchange for Owned Properties, upon such a request by the
In-Kind Redeeming Preferred Partners to acquire an Owned Property, the Partnership and the Preferred Limited Partner Representative
shall mutually agree on the value of the Owned Property (the “Agreed Value”) and the Agreed Value of the Owned
Property shall be the appraised value of such property for the purposes of Section 14 of this Agreement.
(d)
With respect to any individual In-Kind Redeeming Preferred Partner, any redemption or series of redemptions pursuant to
this Section 14 shall be for all, but not less than all, of such In-Kind Redeeming Preferred Partner’s Series T Preferred
Units.
(e) In
connection with any in-kind redemption of Series T Preferred Units pursuant to this Section 14, the Partnership may make cash
payments to the In-Kind Redeeming Preferred Partners, or such In-Kind Redeeming Preferred Partners may make cash payments to
the Partnership, as applicable, to the extent necessary to equate the value of the property received in the redemption to the
Series T Redemption Price of the Series T Preferred Units being redeemed; provided, however, that in each
case the In-Kind Redeeming Preferred Partner agrees that (i) such cash payments shall not cause the Partnership to breach
any tax covenant with respect to unrealized gain set forth in Section 12 and (ii) one hundred percent (100%) of the
ownership interest in the Identified Property shall be distributed as part of the redemption transaction. Notwithstanding the
foregoing, no cash payments made under this (e) may exceed ten percent (10%) of the appraised value of the property.
(f)
During the Partnership’s ownership of a New Property, profit and loss from such property shall be allocated to all
of the Partners, without special allocation, to In-Kind Redeeming Preferred Partners.
(g)
In each case where a property is distributed to one or more In-Kind Redeeming Preferred Partners pursuant to this Section
14, the parties shall execute a usual and customary redemption/purchase and sale agreement, and, in the case of New Properties,
such agreement shall be on terms and conditions no less favorable than the corresponding purchase agreement for the subject New
Property. The General Partner and the Partnership shall cooperate in all reasonable respects in responding to requests for information
from the Preferred Limited Partners that is in the possession of the General Partner or the Partnership or is reasonably obtainable
by the General Partner or the Partnership and any Preferred Limited Partner Representative so that Preferred Limited Partners who
may intend to exercise the rights of In-Kind Redeeming Preferred Partners hereunder may reasonably evaluate the properties that
they may elect to acquire pursuant to their rights under this Section 14 and all criteria that may be relevant thereto, including,
without limitation, criteria that may have bearing on the tax attributes of such properties in the hands of such potential In-Kind
Redeeming Preferred Partners after giving effect to such potential redemption.
Section 15. Reaffirmation. Except as modified herein, all terms and conditions of the Partnership Agreement shall remain in full force and effect, which terms and conditions the General Partner hereby ratifies and affirms.
IN WITNESS WHEREOF,
this Amendment has been executed as of the date first above written.
| |
PROLOGIS, INC., a Maryland corporation the general
partner |
| |
|
| |
By: |
/s/ Michael T. Blair |
| |
Name: |
Michael T. Blair |
| |
Title: |
Managing Director and Assistant Secretary |
SIGNATURE PAGE TO THIRD AMENDMENT
EXHIBIT A TO THIRD AMENDMENT
Name and Address of
Series T Preferred Partner | |
Number of Series T
Preferred Units Being
Issued | | |
Initial Capital
Contribution | |
Del Heil
15 Madrigal
San Clemente, CA 92673 | |
| 1,972.05 | | |
$ | 49,301.25 | |
Luke V. McCarthy
2428 Ridgeway Road
San Marino, CA 91108 | |
| 1,972.05 | | |
$ | 49,301.25 | |
Forbes W. Burdette
15715 Castlewoods Drive
Sherman Oaks, CA 91403 | |
| 493.28 | | |
$ | 12,332.00 | |
Goodman Family Trust (Gary Goodman and/or Victoria Goodman, Trustee)
31001 Paseo Boscana
San Juan Capistrano, CA 92675-2924 | |
| 493.28 | | |
$ | 12,332.00 | |
Roger J. Roelle
1083 Tamarisk Drive
Napa, CA 94559-3512 | |
| 374.93 | | |
$ | 9,373.25 | |
Debbie Christensen
10 Gentle Breeze
Newport Coast, CA 92657 | |
| 296.38 | | |
$ | 7,409.50 | |
Kris Nielsen
106 Bothun Road
Berthoud, CO 80513 | |
| 256.59 | | |
$ | 6,414.75 | |
John R. Provine
P.O. Box 8769
Aspen, CO 81612 | |
| 1,972.05 | | |
$ | 49,301.25 | |
Hubbell Realty Corporation
6900 Westown Parkway
West Des Moines, IA 50266 | |
| 4,057.21 | | |
$ | 101,430.25 | |
Jack W. Shoemaker
9 Maverick Lane
Rolling Hills Estate CA 90274 | |
| 1,546.85 | | |
$ | 38,671.25 | |
Ronald E. Soderling TTEE
901 Dove Street
Newport Beach CA 92660 | |
| 288,005.70 | | |
$ | 7,200,142.50 | |
| Total | |
| 301,500.07 | | |
$ | 7,537,501.75 | |
EXHIBIT B TO THIRD AMENDMENT
Name of
Series T Preferred Partner | |
Protected Period | | |
Aggregate Protected Amount Per Protected
Partner | |
| Forbes W. Burdette | |
| 1/31/2023 | | |
$ | 750,000 | |
| Goodman Family Trust | |
| 1/31/2023 | | |
$ | 750,000 | |
| Roger J. Roelle | |
| 1/31/2023 | | |
$ | 500,000 | |
| Debbie Christensen | |
| 1/31/2023 | | |
$ | 340,000 | |
| Kris Nielsen | |
| 1/31/2023 | | |
$ | 250,000 | |
| Hubbell Realty Corporation | |
| 12/17/2013 | | |
$ | 1,200,000 | |
| Jack W. Shoemaker | |
| 2/21/2019 | | |
$ | 50,000 | |
| Ronald E. Soderling TTEE | |
| 7/1/2027 | | |
$ | 4,000,000 | |
EXHIBIT C TO THIRD AMENDMENT
Form of Guaranty of Collection
GUARANTY OF COLLECTION
THIS GUARANTY OF COLLECTION
is made as of [●] (this “Agreement”), by the persons listed on Schedule “A”, (each, a “Guarantor”),
to and for the benefit of [●], in its capacity as lender (the “Lender”) of the Secured Debt (defined below)
(as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms) and all
its successors and assigns.
RECITALS:
WHEREAS, pursuant to
that certain [LOAN]by and among [●] (the “Borrower”) and the Lender (the “Secured Debt”),
the [●] are collectively called the “Loan Documents”),
WHEREAS, the Guarantor
owns a direct equity interest in Prologis, L.P., a Delaware limited partnership (“Prologis OP”), which is the
indirect owner of all of the outstanding ownership interests in the Borrower;
WHEREAS, Guarantor
has duly authorized the execution, delivery and performance of this Guaranty in order to guarantee a portion of the Borrower's
obligations with respect to the Loan, subject to, and otherwise in accordance with, the terms and conditions hereinafter set forth;
WHEREAS, the Guarantor
directly benefits from the Secured Debt being made to the Borrower;
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Guarantor hereby agrees as follows:
1.
Guaranty. Subject to the terms and conditions set forth in this Agreement, the Guarantor hereby irrevocably,
unconditionally, absolutely and directly agrees to pay to the Lender its Fixed Percentage (as set forth on Schedule A attached
hereto) of the unpaid principal amount of the Secured Debt set forth in this Section 1 and as limited under the other provisions
of this Agreement, including, without limitation, Section 3, together with the Fixed Percentage of the interest thereon, in each
case to the extent provided for in the Loan Documents (the “Guaranteed Obligations”); provided, however, that
the Guarantor shall have no obligation to make a payment hereunder with respect to any other costs, fees, expenses, penalties,
charges or similar items payable by the Borrower or any other person or entity (a “Person”) that has guaranteed
any payment under the Loan Documents other than the Guarantor (each, a “Borrower Party”, and collectively, the
“Borrower Parties”) in respect of the Secured Debt or under the Loan Documents.
2.
Guaranty of Collection and Not of Payment. Notwithstanding any other provision of this Agreement, this Agreement
is a guaranty of collection and not of payment, and Guarantor shall not be obligated to make any payment hereunder until each of
the following is true: (a) Borrower shall have failed to make a payment due to the Lender in respect of such Guaranteed Obligations,
and (b) the Lender shall have exhausted all Lender Remedies (as defined below). The term “Lender Remedies”
shall mean all rights and remedies at law and in equity that the Lender may have against Borrower to collect, or obtain payment
of, the Secured Debt, including, without limitation, foreclosure or similar proceedings, litigation and collection on all applicable
insurance policies.
3.
Limitation/Tax Characterization. Notwithstanding any other term or condition of this Agreement it is agreed
that Guarantor’s maximum liability under this Agreement with respect to amounts that are not recovered from the Borrower
shall be equal to the lesser of: (A) (i) the Fixed Percentage (as defined below) multiplied by (ii) the amount of the Secured Debt
that the Lender is unable to recover from the Borrower, prior to exercising any rights against a Guarantor, or (B) Guarantor’s
“Guaranteed Amount”, as set forth on Schedule A hereto.
(a)
The “Fixed Percentage” is the amount set forth in Schedule A and shall be determined as the fraction,
the numerator of which is the Guarantor’s Guaranteed Amount, as set forth on Schedule A hereto, and the denominator of which
is the amount outstanding under the Secured Debt as set forth in Section 1 hereof, as determined from time to time.
(b)
The Fixed Percentage and the Guarantee Amount are intended to satisfy the requirements for a “vertical slice”
guarantee within the meaning of. Reg. Section 1.752-2(b)(3)(ii)(C)(2) as promulgated under Section 752 of the Internal Revenue
Code of 1986, as amended, and shall, to the extent possible, be interpreted consistently therewith.
(c)
This Agreement shall inure to the benefit of and be binding upon Guarantor and the Lender and its successors and assigns;
provided, however, that Guarantor may not assign any of its obligations hereunder, and any such assignment shall be null and void.
4.
Notice. As a condition to the enforcement of this Agreement, Guarantor shall have received written notice
of any failure by Borrower to pay any Guaranteed Obligations to the Lender. Except for the notice required under the preceding
sentence, Guarantor hereby waives notice of acceptance of this Agreement, demand of payment, presentment of this or any instrument,
notice of dishonor, protest and notice of protest, or other action taken in reliance hereon and all other demands and notices of
any description in connection with this Agreement. Subject to the last sentence of Section 2, Guarantor further waives and forgoes
all defenses which may be available by virtue of any valuation, moratorium law or other similar law now or hereafter in effect,
and any right to require the marshalling of assets.
5. Termination
of Guaranty; Modification of Secured Debt or Loan Documents. Subject to paragraph 3, this Guaranty is irrevocable as to
any and all of the Guaranteed Obligations; provided that this Guaranty shall terminate upon satisfaction in full of the
Obligations under the Loan Documents. Without in any manner limiting the generality of the foregoing, the Lender or any
subsequent lender under the Loan Documents may, from time to time, without notice to or consent of Guarantor, agree to any
amendment, waiver, modification or alteration of the Loan Documents (including, without limitation, the granting of security
interests in the assets of Borrower and subsidiaries) relating to Borrower and their rights and obligations thereunder
(including, without limitation, renewal, waiver or variation of the maturity of the indebtedness evidenced by the Loan
Documents, increase or reduction of the rate of interest payable under the Loan Documents and release, substitution or
addition of any guarantor or endorser), it being understood and agreed by the Lender, however, that Guarantor's obligations
hereunder are subject, in all events, to the limitations set forth in paragraph 1; provided that, upon (i) any material
change to the Secured Debt or Loan Documents, including, without limitation, any change to the maturity date or the interest
rate under the Secured Debt or Loan Documents; or (ii) any agreement by the Lender or Borrower to subordinate, in right of
payment or rank, any of the Obligations under the Secured Debt or Loan Documents to any other indebtedness or guaranty of
indebtedness, then Prologis OP shall give Guarantor prompt written notice (which notice, Prologis OP, in any event, shall
endeavor to give not less than one (1) week after such change or agreement) of such change or agreement and, within thirty
(30) days of Guarantor's receipt of notice thereof, Guarantor may elect to terminate Guarantor's obligations under this
Guaranty by written notice to the Lender and Prologis OP. Termination of this Guaranty by the Guarantor pursuant to this
Section 5 shall take effect as of the date of the change or agreement giving rise to such termination right, provided, that
the Guarantor shall have the option to elect, by so indicating in its notice of termination, that the termination of this
Guaranty shall take effect on any date subsequent to such change or agreement as shall be specified by the Guarantor in such
notice (it being agreed that, if the Guarantor shall terminate this Guaranty in accordance with the foregoing, then no claim
may be asserted against the Guarantor under this Guaranty upon or after such termination of this Guaranty takes effect in
accordance with the foregoing, regardless of any circumstance whatsoever). Termination of this Guaranty by reason of this
Section 5 shall not in any way release, discharge, impair, or otherwise affect the obligations of Guarantor arising under
this Guaranty prior to such termination or otherwise preclude the exercise by Lender of any rights under this Guaranty
arising in connection with obligations of Guarantor.
6.
Absolute Obligation. Subject to the provisions of Sections 1, 2, 3, 4, and 5 the obligations of Guarantor
hereunder shall be absolute and unconditional and shall not be subject to any reduction, limitation, impairment or termination
for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any setoff, counterclaim, deduction, diminution, abatement, suspension, reduction, recoupment or termination whatsoever
by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations. Without limiting the generality of the
foregoing, subject to the provisions of Sections 1,2,3,4, and 5, the obligations of Guarantor hereunder shall not be released,
discharged, impaired or otherwise affected by any circumstance or condition whatsoever (whether or not the Borrower, any other
Borrower Party, Guarantor, or any Lender has knowledge thereof) which may or might in any manner or to any extent vary the risk
of the Guarantor or otherwise operate as a release or discharge of the Guarantor as a matter of law or equity (other than the payment
in full of all of the Guaranteed Obligations), including, without limitation:
(a) any
amendment, modification, addition, deletion or supplement to or other change to any of the terms of the Loan Documents, or
any assignment or transfer of any thereof, or any furnishing, acceptance, surrender, substitution, modification or release of
any security for, or guaranty of, the Guaranteed Obligations;
(b)
any failure, omission or delay on the part of the Borrower or any other Borrower Party to comply with any term of any of
the Loan Documents;
(c)
any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained
in the Loan Documents or any of them or any delay on the part of the Lender to enforce, assert or exercise any right, power or
remedy conferred on the Lender in the Loan Documents;
(d)
any extension of the time for payment of the principal of or premium (if any) or interest on any of the Guaranteed Obligations,
or of the time for performance of any other obligations, covenants or agreements under or arising out of the Loan Documents or
any of them, or the extension or the renewal thereof,
(e)
to the extent permitted by applicable law, any voluntary or involuntary bankruptcy, insolvency, reorganization, moratorium,
arrangement, adjustment, readjustment, composition, assignment for the benefit of creditors, receivership, conservatorship, custodianship,
liquidation, marshaling of assets and liabilities or similar proceedings with respect to the Borrower, any other Borrower Party
or the Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding (including, without limitation, any automatic stay incident to any such proceeding);
(f)
any limitation, invalidity, irregularity or unenforceability, in whole or in part, limiting the liability or obligation
of the Borrower or any other Borrower Party or any security therefor or guarantee thereof or the Lender's recourse to any such
security or limiting the Lender's right to a deficiency judgment against the Borrower, any other Borrower Party, the Guarantor
or any other Person; and
(g)
any other act, omission, occurrence, circumstance, happening or event whatsoever, whether similar or dissimilar to the foregoing,
whether foreseen or unforeseen, and any other circumstance which might otherwise constitute a legal or equitable defense, release
or discharge (including the release or discharge of the liabilities of a guarantor or surety or which might otherwise limit recourse
against the Borrower, any other Borrower Party, the Guarantor or any other Person, whether or not the Borrower, any other Borrower
Party, the Guarantor, or the Lender shall have notice or knowledge of the foregoing).
7. Liability
between Parties. Guarantor shall have no right of indemnification or contribution from, or subrogation against, the
Borrower or any Borrower Party, or any direct or indirect owner of such Persons, or any other of the undersigned, it being
the intention and understanding of Guarantor that Guarantor bears his portion of the ultimate risk of loss. If following the
occurrence of each of the conditions set forth in Section 2(a), (b) and (c) of this Agreement, a Borrower Party makes a
payment to the Lender that reduces the liability of a Guarantor, Guarantor shall indemnify (with no right to contribution or
subrogation) such Borrower Party, and only to the extent that, the Guarantor would have been required to make a payment under
this Guarantee had the Borrower Party not made such payment.
8.
Continuity of Guaranteed Obligations Bankruptcy or Insolvency. If all or any part of any payment applied to
any Guaranteed Obligation is or must be recovered, rescinded or returned to the Borrower, a Guarantor or any other Person (other
than the Lender) for any reason whatsoever (including, without limitation, bankruptcy, or insolvency of any party), such Guaranteed
Obligation shall be deemed to have continued in existence and this Agreement shall continue in effect as to such Guaranteed Obligation,
all as though such payment had not been made. For the avoidance of doubt, the bankruptcy, insolvency, or dissolution of, or the
commencement of any case or proceeding under any bankruptcy, insolvency, or similar law in respect of, the Borrower or any other
Borrower Party shall not require a Guarantor to make any payment under this Agreement until all of the conditions in Section 2
and Section 4 have been satisfied (including, without limitation, the exhaustion of all Lender Remedies).
9.
No Waiver. No delay or omission on the part of the Lender in exercising any rights hereunder shall operate
as a waiver of such rights or any other rights, and no waiver of any right on any one occasion shall result in a waiver of such
right on any future occasion or of any other rights; nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right.
10.
Representations and Warranties. Guarantor represents, warrants, and agrees that (a) this Agreement has been
duly executed and delivered by such Guarantor, and constitutes the Guarantor's legal, valid and binding obligation enforceable
in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer or other laws offering creditors
rights, and by general equitable principles; (b) the making and performance of this Agreement does not and will not violate the
provisions of any applicable law, regulation or order applicable to or binding on the Guarantor, and does not and will not result
in the breach of, or constitute a default or require any consent under, any material agreement, instrument, or document to which
the Guarantor is a party or by which the Guarantor or any of its property may be bound or affected; (c) all consents, approvals,
licenses and authorizations of, and filings and registrations with, any governmental authority or regulatory body or other third
party for the execution, delivery and performance of this Guarantee by the Guarantor required to have been made or obtained by
Guarantor have been obtained or made and are in full force and effect; (d) Guarantor has, and shall maintain, sufficient assets
and an adequate net worth to perform all of his obligations under this Agreement, and shall provide notice to Lender of any transfer
of assets constituting more than ten percent (10%) of the fair market value of Guarantor’s gross assets for less than full
and adequate consideration including, without limitation, any gift; and (e) by virtue of the Guarantor's relationship with the
Borrower, and Guarantor has received adequate consideration for this Agreement.
11. Enforcement
Expenses. Guarantor hereby agrees to pay all out-of-pocket costs and expenses of the Lender in connection with the
enforcement of this Agreement (including, without limitation, the reasonable fees and disbursements of counsel employed by
the Lender); provided that no payment shall be due and owing under this Section 10 during the pendency of any good faith
dispute between the Guarantor and the Lender regarding the enforcement of this Agreement against the Guarantor and such
payment shall be due only if (A) Guarantor agrees to make such payment or (B) a court of competent jurisdiction has
determined pursuant to a final non-appealable order that this Agreement may be enforced against the Guarantor. In the case of
a joint action or dispute between one or more Guarantor and the Lender, Guarantor involved in such action or dispute shall be
liable for the amounts due under this Section 10 in proportion to its Guarantee Percentage in relation to the total Guarantee
Percentages of the Guarantor thus involved, provided that a Guarantor who settles such dispute or action prior to the other
Guarantor involved doing so shall not be liable for expenses incurred after such settlement if they are not related to such
Guarantor any more.
12.
Fraudulent Conveyance. Notwithstanding any provision of this Agreement to the contrary, it is intended that
this Agreement, Guarantor's guarantee of the Guaranteed Obligations hereunder and any liens and security interests securing a Guarantor's
obligations under this Agreement, not constitute a Fraudulent Conveyance (as defined below). Consequently, Guarantor agrees that
if this Agreement, such Guarantor's guarantee of the Guaranteed Obligations hereunder or any liens or security interests securing
the Guarantor's obligations under this Agreement, would, but for the application of this sentence, constitute a Fraudulent Conveyance,
this Agreement, such guarantee and each such lien and security interest shall be valid and enforceable only to the maximum extent
that would not cause this Agreement, such guarantee or such lien or security interest to constitute a Fraudulent Conveyance, and
this Agreement shall automatically be deemed to have been amended accordingly at all relevant times. For purposes of this Section
11, the term “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of the United States Bankruptcy
Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent
transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
13. Exculpation
of Lenders. Guarantor acknowledges and agrees that none of Lender, or any of its successors or assigns, or any officer,
director, partner, trustee, equity holder, agent, employee, attorney, attorney-in-fact, advisor or controlling Person of any
of the foregoing (collectively, the “Lender Parties”) shall have any duty (including any fiduciary duty or
any other express or implied duty), liability, obligation or responsibility whatsoever to the Guarantor arising from, in
connection with or relating to (i) the Secured Debt and other extensions of credit contemplated by the Loan Documents, or
(ii) any of the transactions contemplated by this Agreement or the Loan Documents, including, without limitation, any actual
or alleged breach, misrepresentation or failure to perform any of their respective duties or obligations (including, but not
limited to, any failure to fund or otherwise extend credit) under any Loan Document or any agreement, certificate or
instrument related thereto (clauses (i) and (ii), collectively, the “Financing Matters”). No Lender Party
shall be liable to the Guarantor for any action taken or not taken by such Lender Party in connection with any of the
Financing Matters; provided, that, for the avoidance of doubt, the foregoing sentence shall not, in and of itself, operate as
a waiver of defenses by the Guarantor to enforcement of this Agreement. Guarantor hereby waives, releases and forever
discharges each of the Lender Parties from any and all actions, causes of action, suits, debts, losses, costs, controversies,
damages, liabilities, judgments, claims and demands whatsoever, in law or equity or otherwise, whether known or unknown
(collectively, “Claims”) directly or indirectly arising out of or relating to any of the Financing
Matters, that the Guarantor ever had, now has or hereafter can, shall or may have against any of the Lender Parties, except
to the extent arising as a result of (x) a demand for payment hereunder prior to the conditions in Section 2 and Section 4
being satisfied or (y) any act of gross negligence or willful misconduct committed by such Person at any time following the
date hereof as determined by a court of competent jurisdiction pursuant to a final non-appealable order. Furthermore,
Guarantor covenants not to sue any Lender Party in connection with or assert any Claim which such Guarantor may hereafter
have in connection with any Financing Matter, except to the extent arising as a result of (x) a demand for payment hereunder
prior to the conditions in Section 2 and Section 4 being satisfied or (y) any act of gross negligence or willful misconduct
committed by such Person at any time following the date hereof as determined by a court of competent jurisdiction pursuant to
a final non-appealable order. Each of the Lender Parties shall be an intended third party beneficiary of this Section 12 and
may enforce the terms of this Section 12 as if such Lender Party were a direct party to this Agreement, and this Section 12
may not be amended, supplemented, waived or otherwise modified without the prior written consent of the Lender.
14.
Miscellaneous.
(a)
This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in New York.
(b)
Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of
any State of New York court or federal court of the United States of America sitting in the State of New York and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and the Lender hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding shall be heard and determined exclusively in any such New York court or, to the extent permitted by law, in such federal
court. Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that any party (other than the Guarantor) may otherwise have to bring any action or proceeding relating to this Agreement in the
courts of any jurisdiction. Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement in any New York or federal court. Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c)
This Agreement constitutes the entire agreement of the parties hereto (and the Lender shall, for the purpose of this Guaranty,
be deemed to be a party hereto) with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral or written, between the parties related thereto.
(d)
This Agreement is for the benefit of Lender and shall be executed by Guarantor, the executed Guarantee shall be delivered
to Lender by Borrower.
(e)
Each reference herein to the Lender shall be deemed to include the successors and assigns of the Lender under the Loan Documents;
it being understood that this Agreement shall not be for the benefit of, or be assigned to, any refinancing or refunding source
with respect to the Guaranteed Obligations (it being acknowledged that an amendment, restatement, waiver or other modification
of the terms of the Loan Documents shall not constitute a refinancing or refunding for purposes of this provision) without the
prior written consent of the Guarantor against whom this Agreement is intended to be enforceable, provided, that in no event shall
the foregoing prevent or restrict any Lender from making an assignment, selling a participation in, pledging or granting a security
interest in or otherwise transferring all or any portion of its interests in the Secured Debt (and its corresponding interest in
the guarantee provided for hereunder) under the applicable provisions of Loan Documents (as in effect on the date hereof, except
to the extent the applicable Guarantor consents to any subsequent amendment or other modification to such provisions) or impair
any Lender's rights under this Agreement as a result of any such assignment, participation, pledge, security interest or transfer
made in accordance with such provisions.
(f)
This Agreement is for the benefit only of the Lender, shall be enforceable by it alone, is not intended to confer upon any
third party any rights or remedies hereunder, and shall not be construed as for the benefit of any third party; provided, however,
that (i) the Lender shall be permitted, in its sole discretion, to pay or to direct the Guarantor to pay any and all amounts payable
pursuant to this Agreement to the Lender or any third party, and (ii) each of the Lender Parties may enforce the provisions of
Section 13 of this Agreement.
(g)
EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF AND THEREOF. THE PARTIES AGREE THAT ANY SUCH ACTION OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY
IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
15.
Amendments; Notices; Etc.
(a)
This Agreement may not be modified or amended except by an instrument or instruments in writing signed by each of the parties
hereto.
(b) All
notices and other communications hereunder will be in writing and given by certified or registered mail, return receipt
requested, nationally recognized overnight delivery service, such as Federal Express or personal delivery against receipt to
the party to whom it is given, in each case, at such party's address or facsimile number set forth below or such other
address or facsimile number as such party may hereafter specify by notice to the other parties hereto given in accordance
herewith. Any such notice or other communication shall be deemed to have been given as of the date so personally delivered or
transmitted by facsimile or like transmission (with confirmation of receipt), on the next business day when sent by overnight
delivery services or five days after the date so mailed if by certified or registered mail:
| If to the Borrower: | |
c/o Prologis, L.P. |
| | |
1800 Wazee Street, Suite 500 |
| | |
Denver, CO 80202 |
| | |
Attention: Legal Department |
| | |
|
| With a copy to: | |
c/o Prologis, L.P. |
| | |
Pier 1, Bay 1 |
| | |
San Francisco, CA 94111 |
| | |
Attention: Tax Department |
| | |
|
| If to Guarantor: | |
See Address on Guarantor’s Signature Page |
or to such other address as any party to
whom notice is given may have previously furnished to the others in writing in the manner set forth above.
(c)
If any term or provision of this Agreement, or the application thereof to any Person or circumstance, shall to any extent
be held invalid or unenforceable in any jurisdiction, then (i) as to such jurisdiction, the remainder of this Agreement, or the
application of such term or provision to Persons or circumstances other than those as to which such term or provision is held invalid
or unenforceable in such jurisdiction, shall not be affected thereby, (ii) the court making such determination shall have the power
to reduce the scope, duration, area or applicability of such provision, to delete specific words or phrases, or to replace any
invalid or unenforceable provision with a provision that is valid and enforceable and comes closest to expressing the intention
of the invalid or unenforceable provision, and (iii) each remaining term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by applicable law. Any such invalidity or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
(d)
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement,
and will become effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies
of executed counterparts transmitted by telecopy, telefax or other electronic transmission service shall be considered original
executed counterparts for purposes of this Section 14(d), provided that receipt of copies of such counterparts is confirmed.
Schedule A
| Guarantor |
Fixed Percentage (rounded)
at Date of Agreement |
Guarantee Amount |
| |
|
|
IN WITNESS WHEREOF, the Guarantor has executed
this Agreement as of the date first above written.
Schedule A
| Guarantor |
Fixed Percentage (rounded)
at Date of Agreement |
Guarantee Amount |
| |
|
|
