GUARANTY AGREEMENT
Exhibit
10.5
EXECUTION VERSION
THIS GUARANTY AGREEMENT (this “Guaranty”) dated as of June 3, 2011 is issued by
Prologis, Inc., a Maryland corporation formerly known as AMB Property Corporation, and Prologis,
L.P., a Delaware limited partnership formerly known as AMB Property, L.P. (each a “Guarantor” and
together the “Guarantors”), for the benefit of the Credit Parties (as defined below).
Schedule 1 hereto lists the location for various capitalized terms used herein.
R E C I T A L S:
1. PLD International Incorporated (“Borrower”), various lenders (the
“Lenders”) and X.X. Xxxxxx Europe Limited, as administrative agent (“Administrative
Agent”; Administrative Agent and the Lenders, together with their successors and assigns and
each Indemnitee (as defined in the Credit Facility referred to below), are referred to as the
“Credit Parties”), have entered into a Senior Bridge Loan Agreement dated as of April 21,
2011 (as amended, modified, restated or supplemented from time to time, the “Credit
Facility”), pursuant to which the Lenders have agreed to extend credit to Borrower.
2. Pursuant to various transactions among Guarantors and their affiliates and Prologis, a
Maryland real estate investment trust formerly known as ProLogis, and its affiliates, Borrower has
become an indirect subsidiary of each Guarantor.
3. Accordingly, Guarantors will benefit from credit extensions made by the Credit Parties to
Borrower and are willing to guarantee repayment of such obligations as more fully set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Guarantors agree as follows:
SECTION 1
NATURE AND SCOPE OF GUARANTY
1.1 Definition of Guaranteed Debt. As used herein, the term “Guaranteed Debt” means:
(a) All principal, interest and other indebtedness, obligations and liabilities of Borrower to
the Credit Parties at any time created or arising under or in connection with the Credit Facility;
and
(b) All costs, expenses and fees, including court costs and reasonable attorneys’ fees, in
each case arising in connection with the collection of any or all amounts, indebtedness,
obligations and liabilities of Guarantors under this Guaranty.
1.2 Guaranteed Debt Not Reduced by Offset. The Guaranteed Debt, and the liabilities and
obligations of Guarantors hereunder, shall not be reduced, discharged or released because of any
existing or future offset, claim or defense (other than the defense of indefeasible
payment and satisfaction in full in cash) of Borrower, either Guarantor or any other Person against
any Credit Party or against payment of the Guaranteed Debt, whether such offset, claim or defense
arises in connection with the Guaranteed Debt (or the transactions creating the Guaranteed Debt) or
otherwise.
1.3 Guaranty of Obligation. Each Guarantor irrevocably and unconditionally guarantees (a) the
due and punctual payment of the Guaranteed Debt and (b) the timely performance of all other
obligations now or hereafter owed by Borrower to the Credit Parties under the Credit Facility.
Each Guarantor irrevocably and unconditionally covenants and agrees that it is liable for the
Guaranteed Debt as primary obligor.
1.4 Nature of Guaranty. This Guaranty is intended to be an irrevocable, absolute and
continuing guaranty of payment and is not merely a guaranty of collection. This Guaranty may not
be revoked by either Guarantor. The fact that at any time or from time to time the Guaranteed Debt
may be increased, reduced or paid in full shall not release, discharge or reduce the obligation of
either Guarantor with respect to indebtedness or obligations of Borrower to the Credit Parties
thereafter incurred (or other Guaranteed Debt thereafter arising) under or in connection with the
Credit Facility. This Guaranty may be enforced by the Credit Parties and shall not be discharged
by the assignment or negotiation of all or part of the Guaranteed Debt.
1.5 Payment by Guarantors. If all or any part of the Guaranteed Debt shall not be paid when
due, whether at maturity or earlier by acceleration or otherwise, then Guarantors shall,
immediately upon demand by Administrative Agent, and without presentment, protest, notice of
protest, notice of nonpayment, notice of intention to accelerate or acceleration, or any other
notice whatsoever, pay, in the currency required by the Credit Facility, the amount due on the
Guaranteed Debt to Administrative Agent at the account specified by Administrative Agent in
accordance with Section 3.8.2 of the Credit Facility. Any such demand may be made at any time
coincident with or after the time for payment of all or part of the Guaranteed Debt, and may be
made from time to time with respect to the same or different items of Guaranteed Debt. Any such
demand shall be deemed made, given and received in accordance with Section 6.2.
1.6 Payment of Expenses. If a Guarantor should breach or fail to timely perform any provision
of this Guaranty, then such Guarantor shall, immediately upon demand by Administrative Agent, pay
to Administrative Agent, for the benefit of the Credit Parties, all costs and expenses (including
court costs and reasonable attorneys’ fees) incurred by the Credit Parties in the enforcement
hereof or the preservation of the Credit Parties’ rights hereunder. The covenant contained in this
Section 1.6 shall survive the payment of the Guaranteed Debt.
1.7 No Duty to Pursue Others. It shall not be necessary for any Credit Party (and each
Guarantor hereby waives any right that such Guarantor may have to require any Credit Party), in
order to enforce payment by such Guarantor, first to (a) institute suit or exhaust its remedies
against Borrower or any other Person liable on the Guaranteed Debt, (b) enforce the Credit Parties’
rights against any security which shall ever have been given to secure the Guaranteed Debt, (c)
join such Guarantor or any other Person liable on the Guaranteed Debt in any action seeking to
enforce this Guaranty, (d) exhaust any remedies available to the Credit Parties against any
security which shall ever have been given to secure the Guaranteed Debt or
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 2 -
(e) resort to any other means of obtaining payment of the Guaranteed Debt. The Credit Parties
shall not be required to mitigate damages or take any other action to reduce, collect or enforce
the Guaranteed Debt. Further, each Guarantor expressly waives each and every right to which it may
be entitled by virtue of the suretyship law of New York and each other applicable jurisdiction.
1.8 Waiver of Notices, etc. Each Guarantor agrees to the provisions of the Credit Facility
and waives notice of (a) any loan or advance made by any Credit Party to Borrower, (b) acceptance
of this Guaranty, (c) any amendment or extension of the Credit Facility or any other instrument or
document pertaining to all or any part of the Guaranteed Debt, (d) the execution and delivery by
Borrower and any Credit Party of any amendment or any other modification to the Credit Facility or
any document related thereto, (e) the occurrence of any Event of Default, (f) any transfer of the
Guaranteed Debt, or any part thereof, (g) sale or foreclosure (or posting or advertising for sale
or foreclosure) of any collateral for the Guaranteed Debt, (h) protest, proof of nonpayment or
default by Borrower or a Guarantor, (i) the release of any other guarantor of the Guaranteed Debt
and (j) any other action at any time taken or omitted by any Credit Party and, generally, all
demands and notices of every kind in connection with this Guaranty, the Credit Facility and any
other document or agreement evidencing, securing or relating to any of the Guaranteed Debt.
1.9 Effect of Bankruptcy, Other Matters. If, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief law, or any judgment, order or decision
thereunder, or for any other reason, (a) any Credit Party must rescind or restore any payment, or
any part thereof, received in satisfaction of the Guaranteed Debt, any prior release or discharge
from the terms of this Guaranty shall be without effect, and this Guaranty shall remain in full
force and effect; or (b) Borrower shall cease to be liable to the Credit Parties for any of the
Guaranteed Debt (other than by reason of the indefeasible payment in full thereof), then the
obligations of each Guarantor under this Guaranty shall remain in full force and effect. The
Credit Parties and Guarantors intend that Guarantors’ obligations hereunder shall not be discharged
except by Guarantors’ performance of such obligations and then only to the extent of such
performance. Without limiting the generality of the foregoing, the Credit Parties and Guarantors
intend that the filing of any bankruptcy or similar proceeding by or against Borrower or any other
Person obligated on any portion of the Guaranteed Debt shall not affect the obligations of
Guarantors under this Guaranty or the rights of the Credit Parties under this Guaranty, including
the right or ability of the Credit Parties to pursue or institute suit against either Guarantor for
the entire Guaranteed Debt.
1.10 Taxes. Each Guarantor hereby agrees to comply with the requirements of Section 4.1 of
the Credit Facility with respect to any payments made by such Guarantor hereunder to any Credit
Party.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 3 -
SECTION 2
ADDITIONAL EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTORS’ OBLIGATIONS
OR DISCHARGING GUARANTORS’ OBLIGATIONS
Each Guarantor agrees that such Guarantor’s obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the following, and waives
any common law, equitable, statutory or other right (including any right to notice) which such
Guarantor might otherwise have as a result of or in connection with any of the following:
2.1 Modifications, etc. Any renewal, extension, increase, modification, alteration or
rearrangement of all or any part of the Guaranteed Debt or of the Credit Facility.
2.2 Adjustment, etc. Any adjustment, indulgence, forbearance or compromise that might be
granted or given by any Credit Party to Borrower, such Guarantor, the other Guarantor or any other
Person liable for any of the Guaranteed Debt.
2.3 Condition, Composition or Structure of Borrower or Guarantors. The insolvency,
bankruptcy, arrangement, adjustment, composition, restructure, liquidation, dissolution or lack of
power of Borrower, such Guarantor or any other Person at any time liable for the payment of all or
part of the Guaranteed Debt; any sale, lease or transfer of any or all of the assets of Borrower,
such Guarantor, the other Guarantor or any other Person liable for any of the Guaranteed Debt; any
change in the name, business, location, composition or structure of, or in the shareholders,
partners or members (whether by accession, secession, cessation, death, dissolution, transfer of
assets or other matter) of, or any reorganization of, Borrower, such Guarantor, the other Guarantor
or any other Person liable for any of the Guaranteed Debt.
2.4 Invalidity of Guaranteed Debt. The invalidity, illegality or unenforceability of any of
the Guaranteed Debt or any document or agreement executed in connection with the Guaranteed Debt,
for any reason whatsoever, including the fact that (a) the Guaranteed Debt, or any part thereof,
exceeds the amount permitted by law, (b) the act of creating the Guaranteed Debt or any part
thereof is ultra xxxxx, (c) any officer or representative executing the Credit Facility or any
other document creating the Guaranteed Debt acted in excess of such officer’s or representative’s
authority, (d) the Guaranteed Debt violates applicable usury laws, (e) Borrower has valid
defenses, claims or offsets (whether at law, in equity, or by agreement) which render the
Guaranteed Debt wholly or partially uncollectible from Borrower (except that Guarantors do not
waive the right to claim that Borrower (or another Person on behalf of Borrower) has made payment
of the Guaranteed Debt in full in cash), (f) the creation, performance or repayment of the
Guaranteed Debt (or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Debt or executed in connection with the Guaranteed Debt, or
given to secure the repayment of the Guaranteed Debt) is illegal, uncollectible or unenforceable or
(g) the Credit Facility or any other document or instrument pertaining to the Guaranteed Debt has
been forged or otherwise is irregular or not genuine or authentic.
2.5 Release of Obligors. Any full or partial release of the liability of Borrower on the
Guaranteed Debt or any part thereof, or of any co-guarantor, or any other Person now or
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 4 -
hereafter liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed Debt or any part
thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be
required to pay the Guaranteed Debt in full without assistance or support of any other Person, and
such Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation,
belief, understanding or agreement that other Persons will be liable to perform the Guaranteed
Debt, or that the Credit Parties will look to other Persons to perform the Guaranteed Debt;
notwithstanding the foregoing, neither Guarantor waives or releases (expressly or impliedly) any
right of subrogation, reimbursement or contribution which it may have, after payment in full in
cash of the Guaranteed Debt, against others liable on the Guaranteed Debt; such Guarantor’s rights
of subrogation and reimbursement are, however, subordinate to the rights and claims of the Credit
Parties.
2.6 Other Security. The taking or accepting of any security, collateral, guaranty or other
assurance of payment for all or any part of the Guaranteed Debt.
2.7 Release of Collateral, etc. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or security at any time existing in
connection with, or assuring or securing payment of, all or any part of the Guaranteed Debt.
2.8 Care and Diligence. The failure of any Credit Party or any other Person to exercise
diligence or reasonable care or to act or comply with any duty in the administration, preservation,
protection, enforcement, sale, application, disposal or other handling or treatment of all or any
part of Guaranteed Debt or any collateral, property or security at any time securing any portion
thereof, including the failure to conduct any foreclosure or other remedy fairly, in a commercially
reasonable manner or in such a way so as to obtain the best possible price or a favorable price.
2.9 Status of Liens. The fact that any collateral, security, security interest or lien
contemplated or intended to be given, created or granted as security for the repayment of the
Guaranteed Debt shall not be properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized and agreed by Guarantors
that Guarantors are not entering into this Guaranty in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of any of the collateral for the
Guaranteed Debt; notwithstanding the foregoing, neither Guarantor waives or releases (expressly or
impliedly) any right to be subrogated to the rights of the Credit Parties or any other Person in
any collateral or security for the Guaranteed Debt after payment in full in cash of the Guaranteed
Debt; such Guarantor’s rights of subrogation are, however, subordinate to the rights, claims, liens
and security interests of the Credit Parties.
2.10 Offset. Any existing or future right of offset, claim or defense of Borrower against the
Credit Parties or any other Person, or against payment of the Guaranteed Debt, whether such right
of offset, claim or defense arises in connection with the Guaranteed Debt (or the transactions
creating the Guaranteed Debt) or otherwise.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 5 -
2.11 Merger. The reorganization, merger or consolidation of Borrower or either Guarantor into
or with any other Person.
2.12 Preference. Any payment by Borrower to any Credit Party being determined to be a
preference under any bankruptcy law, or for any reason any Credit Party is required to refund such
payment or pay such amount to Borrower or any other Person.
2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken with
respect to the Credit Facility, the Guaranteed Debt or the security and collateral therefor,
whether or not such action or omission prejudices Guarantors or increases the likelihood or risk
that Guarantors will be required to pay the Guaranteed Debt pursuant to the terms hereof; it being
the unambiguous and unequivocal intention of Guarantors that Guarantors shall be obligated to pay
the Guaranteed Debt when due, notwithstanding any occurrence, circumstance, event, action or
omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or
particularly described herein, except for the indefeasible full and final payment and satisfaction
in full in cash of the Guaranteed Debt.
SECTION 3
REPRESENTATIONS AND WARRANTIES
Each Guarantor represents and warrants to the Credit Parties that:
3.1 Existence, Qualification and Power. Such Guarantor (a) is duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and carry on its business and
(ii) execute, deliver and perform its obligations under this Guaranty, and (c) is duly qualified
and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in clause (b)(i) and (c) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect.
3.2 Authorization; No Contravention. The execution, delivery and performance by such
Guarantor of this Guaranty have been duly authorized by all necessary corporate or other
organizational action, and do not and will not: (a) contravene the terms of any of its Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, or require any payment to be made under (i) any Contractual Obligation to which it is a
party or affecting it or its properties, (ii) the Merger Agreement or (iii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which it or its property is
subject; or (c) violate any Law.
3.3 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, such Guarantor of this Guaranty.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 6 -
3.4 Binding Effect. This Guaranty has been duly executed and delivered by such Guarantor.
This Guaranty constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, subject to applicable Debtor Relief Laws and
general principles of equity.
3.5 Margin Regulations. Such Guarantor is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Federal Reserve Bank), or extending credit for the purpose of
purchasing or carrying margin stock.
3.6 Investment Company Act. Such Guarantor is not, and is not required to be registered as,
an “investment company” under the Investment Company Act of 1940.
3.7 Benefit. Such Guarantor has received, or will receive, direct or indirect benefit from
the issuance of this Guaranty and the incurrence of the Guaranteed Debt.
3.8 Familiarity and Reliance. Such Guarantor is familiar with, and has independently reviewed
books and records regarding, the financial condition of Borrower and is familiar with the value of
any and all collateral intended to be created as security for the payment of the Guaranteed Debt;
it being understood that such Guarantor is not relying on such financial condition or such
collateral as an inducement to enter into this Guaranty.
3.9 No Representation by the Credit Parties. No Credit Party or any other Person has made any
representation, warranty or statement to such Guarantor in order to induce such Guarantor to
execute this Guaranty.
3.10 Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this
Guaranty and the contingent obligation evidenced hereby, such Guarantor has (i) assets with a fair
market value exceeding its liabilities, (ii) sufficient cash flow to enable it to pay its
liabilities as they mature and (iii) sufficient capital to conduct its business.
3.11 Disclosure. Such Guarantor has disclosed to the Credit Parties all agreements,
instruments and corporate or other restrictions to which such Guarantor is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of such Guarantor to any Credit Party in
connection with the transactions contemplated hereby and the negotiation of this Guaranty or
delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading in any material respect; provided that, with respect
to projected financial information, if any, such Guarantor represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 7 -
3.12 Pari Passu Obligations. Such Guarantor’s obligations hereunder (i) rank at least pari
passu in right of payment with all other senior unsecured debt of such Guarantor and (ii) are
ratably secured by all collateral, if any, securing obligations of such Guarantor or any of its
Affiliates under the Syndicated Agreement.
All representations and warranties made by Guarantors in this Section 3 shall survive the
execution hereof.
SECTION 4
COVENANTS
4.1 Global Agreement Covenants. During the Availability Period and thereafter so long as any
Guaranteed Debt shall remain outstanding, each Guarantor shall observe and perform each covenant
applicable to such Guarantor set forth in Sections 10.1 through 10.10, 10.12, 11.1 through 11.6 and
11.8 of the Syndicated Agreement (or, if applicable, the corresponding provisions of any subsequent
Syndicated Agreement) as if such covenants (and all related definitions) were set forth herein
mutatis mutandis; provided that neither Guarantor shall be obligated to give any notice or
provide any information hereunder if Administrative Agent receives or otherwise has access to such
notice or information as a result of Administrative Agent being a Lender under the Syndicated
Agreement.
SECTION 5
SUBORDINATION OF CERTAIN INDEBTEDNESS
5.1 Subordination of Guarantor Claims. As used herein, the term “Guarantor Claims”
shall mean, with respect to a Guarantor, all debts and liabilities of Borrower to such Guarantor,
whether such debts and liabilities now exist or are hereafter incurred or arise, and whether the
obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and
several or otherwise, and irrespective of whether such debts or liabilities be evidenced by note,
contract, open account or otherwise, and irrespective of the Person in whose favor such debts or
liabilities may, at their inception, have been or may hereafter be created, or the manner in which
they have been or may hereafter be acquired by such Guarantor. The Guarantor Claims shall include
all rights and claims of the applicable Guarantor against Borrower (arising as a result of
subrogation or otherwise) as a result of such Guarantor’s payment of all or a portion of the
Guaranteed Debt. Until the Guaranteed Debt shall be paid and satisfied in full and Guarantors
shall have performed all of their obligations hereunder, neither Guarantor shall, at any time an
Event of Default exists, receive or collect, directly or indirectly, from Borrower or any other
Person any amount upon the Guarantor Claims.
5.2 Claims in Bankruptcy. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief or other insolvency proceedings involving Borrower as debtor, the
Administrative Agent shall have the right (a) to prove the claims of the Credit Parties in such
proceedings so as to establish its rights hereunder and (b) to receive directly from the receiver,
trustee or other court custodian all dividends and payments which would otherwise be payable
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 8 -
upon any Guarantor Claim. Each Guarantor hereby assigns such dividends and payments to the
Administrative Agent. If the Administrative Agent receives, for application upon the Guaranteed
Debt, any such dividend or payment which is otherwise payable to a Guarantor, and which, as between
Borrower and such Guarantor, shall constitute a credit upon the Guarantor Claims, then upon payment
to the Credit Parties in full of the Guaranteed Debt, such Guarantor shall become subrogated to the
rights of the Credit Parties to the extent that such dividends and payments on the Guarantor Claims
have contributed toward the liquidation of the Guaranteed Debt, and such subrogation shall be with
respect to that proportion of the Guaranteed Debt which would have been unpaid if the
Administrative Agent had not received dividends or payments upon the Guarantor Claims.
5.3 Payments Held in Trust. In the event that, notwithstanding Sections 5.1 and
5.2, a Guarantor should receive any funds, payment, claim or distribution which is
prohibited by such Sections, such Guarantor agrees to hold in trust for the Administrative Agent,
in kind, all funds, payments, claims or distributions so received, and agrees that it shall have
absolutely no dominion over such funds, payments, claim or distributions so received except to pay
them promptly to the Administrative Agent and such Guarantor covenants promptly to pay the same to
the Administrative Agent (subject to any agreement between such Guarantor and any holder of
indebtedness that ranks pari passu with the obligations of such Guarantor hereunder).
5.4 Liens Subordinate. Each Guarantor agrees that any lien, security interest, judgment lien,
charge or other encumbrance upon Borrower’s assets securing payment of the Guarantor Claims of such
Guarantor shall be and remain inferior and subordinate to any lien, security interest, judgment
lien, charge or other encumbrance upon Borrower’s assets securing payment of the Guaranteed Debt,
regardless of whether such encumbrance in favor of such Guarantor or the Administrative Agent
presently exists or is hereafter created or attaches. Without the prior written consent of the
Administrative Agent, neither Guarantor shall (a) exercise or enforce any creditor’s right it may
have against Borrower or (b) foreclose, repossess, sequester or otherwise take steps or institute
any action or proceeding (judicial or otherwise, including the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any
lien, mortgage, deed of trust, security interest, collateral right, judgment or other encumbrance
on assets of Borrower held by such Guarantor.
5.5 Notation of Records. If requested by the Administrative Agent, each Guarantor agrees that
all promissory notes, accounts receivable ledgers or other evidences of the Guarantor Claims
accepted by or held by such Guarantor shall contain a specific written notice thereon that the
indebtedness evidenced thereby is subordinated under the terms of this Guaranty.
SECTION 6
MISCELLANEOUS
6.1 Waiver. No failure to exercise, and no delay in exercising, on the part of any Credit
Party, any right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any other right.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 9 -
The rights of the Credit Parties hereunder shall be in addition to all other rights provided
by law. No modification or waiver of any provision of this Guaranty, or consent to departure
therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other instances without such
notice or demand.
6.2 Notices. Any notice or other communication required or permitted to be given by this
Guaranty must be (a) given in writing and personally delivered or mailed by prepaid certified or
registered mail, return receipt requested, or (b) sent by facsimile, in each case to the party to
whom such notice or communication is directed at the address of such party set forth below:
Guarantors:
Prologis, Inc./Prologis, L.P.
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
Administrative Agent:
X.X. Xxxxxx Europe Limited
000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxx, XX0X 0XX
Attention: Xxxxx Xxx
Fax: x00 000 000 0000
000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxx, XX0X 0XX
Attention: Xxxxx Xxx
Fax: x00 000 000 0000
Any such notice or other communication shall be deemed to have been given (whether actually
received or not) on the day on which it is personally delivered as aforesaid (or, if such day is
not a Business Day, on the immediately following Business Day) or, if mailed, five Business Days
after the day it is mailed as aforesaid, or, if transmitted by facsimile, on the day that such
notice is transmitted as aforesaid (or, if such day is not a Business Day, on the immediately
following Business Day). Either party may change its address for purposes of this Guaranty by
giving notice of such change to the other party pursuant to this Section 6.2.
6.3 Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this Guaranty, such
provision shall be fully severable and this Guaranty shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty,
unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic
understandings and intentions of the parties as expressed herein.
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 10 -
6.4 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR IN SUCH FEDERAL COURT. EACH 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 GUARANTY OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) ABOVE. EACH GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN SECTION 6.2. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e) WAIVER OF JURY TRIAL. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 11 -
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH GUARANTOR
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER.
6.5 Entirety and Amendments. Without limiting the foregoing, this Guaranty supersedes all
other prior agreements and understandings, if any, relating to, and embodies the entire agreement
between Guarantors and the Credit Parties with respect to, the subject matter hereof. Any
provision incorporated by reference into this Guaranty from the Syndicated Agreement shall be
amended or waived concurrently with any amendment or waiver of the corresponding provision of the
Syndicated Agreement, without any further action by Guarantors or any Credit Party;
provided that no amendment made pursuant to this Section 6.5 (including in
connection with a refinancing of the Syndicated Agreement) that would result in the Lenders being
treated differently than the lenders under the Syndicated Agreement shall be made pursuant to this
paragraph without the prior written consent of the Required Lenders. This Guaranty may be amended
(a) so long as no Event of Default exists, by Guarantors upon written notice to Administrative
Agent if the provisions of such amendment are substantially for the benefit of the Credit Parties
or (b) by a written document signed by Guarantors and Administrative Agent.
6.6 Parties Bound; Assignment. This Guaranty shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, assigns, and legal representatives;
provided that neither Guarantor may, without the prior written consent of the
Administrative Agent, assign any of its rights, powers, duties or obligations hereunder.
6.7 Certain Rules of Construction. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty. Section and Schedule references are to
this Agreement unless otherwise specified. The term “including” is not limiting and means
“including without limitation.”
6.8 Termination. This Guaranty shall terminate when all obligations under the Credit Facility
have been indefeasibly paid in full and all commitments under the Credit Facility have been
terminated.
6.9 Multiple Counterparts. This Guaranty may be executed in any number of counterparts, all
of which taken together shall constitute one and the same agreement.
6.10 Rights and Remedies. The exercise by the Credit Parties of any right or remedy hereunder
or under any other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
6.11 Joint and Several Liability. The obligations of Guarantors hereunder are joint and
several.
[Signature page follows]
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
- 12 -
PROLOGIS, INC. | ||||||
(f/k/a AMB Property Corporation), | ||||||
a Maryland corporation | ||||||
By Name: |
/s/ Xxxxxxx
X. Xxxxxx, Xx. |
|||||
Title: | Senior Vice President | |||||
PROLOGIS, L.P. | ||||||
(f/k/a AMB Property, L.P.), | ||||||
a Delaware limited partnership | ||||||
By: | PROLOGIS, INC. (f/k/a AMB Property Corporation), its General Partner | |||||
By Name: |
/s/ Xxxxxxx
X. Xxxxxx, Xx. |
|||||
Title: | Senior Vice President |
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
S-1
Accepted and Agreed: | ||||
X.X. XXXXXX EUROPE LIMITED, | ||||
as Administrative Agent | ||||
By: |
/s/ Xxxxxx Xxxxxxxx | |||
Name: |
||||
Title:
|
||||
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)
S-2
SCHEDULE 1
Location of Defined Terms
Administrative Agent
|
See the Recitals | |
Affiliate
|
See the Credit Facility | |
Availability Period
|
See the Credit Facility | |
Borrower
|
See the Recitals | |
Business Day
|
See the Credit Facility | |
Contractual Obligation
|
See the Credit Facility | |
Credit Facility
|
See the Recitals | |
Credit Parties
|
See the Recitals | |
Debtor Relief Laws
|
See the Credit Facility | |
Event of Default
|
See the Credit Facility | |
Federal Reserve Bank
|
See the Credit Facility | |
Global Agreement
|
See the Credit Facility | |
Governmental Authority
|
See the Credit Facility | |
Guarantor Claims
|
See Section 5.1 | |
Guaranteed Debt
|
See Section 1.1 | |
Guarantor
|
See the Preamble | |
Guaranty
|
See the Preamble | |
Laws
|
See the Credit Facility | |
Lenders
|
See the Recitals | |
Lien
|
See the Credit Facility | |
Loan Document
|
See the Credit Facility | |
Material Adverse Effect
|
See the Credit Facility | |
Merger Agreement
|
See the Credit Facility | |
Organization Documents
|
See the Credit Facility | |
Person
|
See the Credit Facility | |
Syndicated Agreement
|
See the Credit Facility |
Guaranty Agreement
(Senior Bridge Loan Agreement)
(Senior Bridge Loan Agreement)