NINTH SUPPLEMENTAL
INDENTURE
NINTH SUPPLEMENTAL
INDENTURE, dated as of October 1, 2009 (this “
Supplemental Indenture ”), by and between PROLOGIS
(formerly ProLogis Trust and prior thereto Security Capital
Industrial Trust), a real estate investment trust organized under
the laws of the State of Maryland having its principal office at
4545 Airport Way, Denver, Colorado 80239 (the “
Company ”), and U.S. BANK NATIONAL ASSOCIATION (as
successor in interest to State Street Bank and Trust Company),
having a corporate trust office at Corporate Trust Services, 100
Wall Street, Suite 1600, New York, New York 10005, as
successor Trustee (in such capacity, the “ Trustee
”) under the Base Indenture (defined below). Section 1.2
of this Supplemental Indenture sets forth the definitions of
certain capitalized terms used in this Supplemental
Indenture.
WHEREAS, the
Company and the Trustee have heretofore entered into an Indenture,
dated as of March 1, 1995, (the “ Original
Indenture ”) as amended by a First Supplemental
Indenture, dated as of February 9, 2005 (the “ First
Supplemental Indenture ”), a Second Supplemental
Indenture, dated as of November 2, 2005 (the “ Second
Supplemental Indenture ”), a Third Supplemental
Indenture, dated as of November 2, 2005, a Fourth Supplemental
Indenture, dated as of March 26, 2007, a Fifth Supplemental
Indenture, dated as of November 8, 2007, a Sixth Supplemental
Indenture, dated as of May 7, 2008, a Seventh Supplemental
Indenture, dated as of May 7, 2008 (the “ Seventh
Supplemental Indenture ”), and an Eighth Supplemental
Indenture, dated as of August 14, 2009 (as so supplemented, the
“ Base Indenture ”), providing for the issuance
by the Company from time to time of its senior debt securities
evidencing its unsubordinated indebtedness.
WHEREAS,
Section 902 of the Base Indenture provides for the Company and
the Trustee, with the consent of the Holders of not less than a
majority in principal amount of all Outstanding Securities affected
by such supplemental indenture, to enter into an indenture
supplemental to the Base Indenture.
WHEREAS, the
Company has solicited the consent of Holders of its 5.25% Senior
Notes due 2010; 5.50% Senior Notes due 2012; 5.50% Senior Notes due
2013; 7.81% Senior Notes due 2015; 9.34% Senior Notes due 2015;
5.625% Senior Notes due 2015; 5.75% Senior Notes due 2016; 8.65%
Senior Notes due 2016; 5.625% Senior Notes due 2016; 7.625% Senior
Notes due 2017; and 6.625% Senior Notes due 2018 (collectively, the
“ Consent Securities ”) to the amendments
effected by this Supplemental Indenture.
WHEREAS, the
Holders of at least a majority in aggregate principal amount of:
(i) the outstanding Consent Securities voting as a single
class; (ii) the outstanding Consent Securities that are
subject to the Second Supplemental Indenture voting as a single
class; and (iii) the outstanding Consent Securities that are
subject to the Seventh Supplemental Indenture voting as a single
class have consented to the amendments effected by this
Supplemental Indenture.
WHEREAS, the Board
of Trustees of the Company has duly adopted resolutions authorizing
the Company to execute and deliver this Supplemental
Indenture.
WHEREAS, all
things necessary to make the Base Indenture, as hereby modified, a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE,
THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in
consideration of the premises and of the covenants contained herein
and in the Base Indenture, the Company and the Trustee mutually
covenant and agree, for the equal and proportionate benefit of all
Holders of (i) the Consent Securities and (ii) Securities
issued on or after the date of this Supplemental Indenture (unless,
with respect to Securities referenced in the immediately preceding
clause (ii), otherwise provided in the Officers’ Certificate
or supplemental indenture authorizing any such series of
Securities), as follows:
ARTICLE ONE
RELATION TO BASE INDENTURE; DEFINITIONS
Section 1.1.
Relation to Base Indenture . This Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.2.
Definitions . For all purposes of this Supplemental
Indenture, except as otherwise expressly provided for or unless the
context otherwise requires:
(a)
Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Base
Indenture.
(b)
All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
(c)
Pursuant to Section 902 of the Base Indenture, the following
terms and definitions are hereby added or, to the extent that any
such term exists in the Base Indenture, amends and restates the
definition of such term:
“ Annual
Service Charge ” as of any date means the maximum amount
which is payable in any period for interest on, and original issue
discount of, Debt of the Company and its Subsidiaries and the
amount of dividends which are payable in respect of any
Disqualified Stock.
“
Consolidated Income Available for Debt Service ” for
any period means Earnings from Operations of the Company and its
Subsidiaries plus amounts which have been deducted, and minus
amounts which have been added, for the following (without
duplication): (a) interest on Debt of the Company and its
Subsidiaries, (b) provision for taxes of the Company and its
Subsidiaries based on income, (c) amortization of debt
discount, (d) provisions for unrealized gains and losses,
depreciation and amortization, and the effect of any other non-cash
items, (e) extraordinary, non-recurring and other unusual
items (including, without limitation, any costs and fees incurred
in connection with any debt financing or amendments thereto, any
acquisition, disposition, recapitalization or similar transaction
(regardless of whether such transaction is completed)),
(f) the effect of any noncash charge resulting from a change
in accounting principles in determining Earnings from Operations
for such
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period,
(g) amortization of deferred charges and (h) any of the
items described in clauses (d) and (e) above that were
included in Earnings from Operations on account of an Equity
Investee.
“
Debt ” of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, excluding any
accrued expense or trade payable, whether or not contingent, in
respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured
by any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued
or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, or all conditional sale
obligations or obligations under any title retention agreement,
(iv) the principal amount of all obligations of the Company or
any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock or (v) any lease of
property by the Company or any Subsidiary as lessee which is
reflected on the Company’s Consolidated Balance Sheet as a
capitalized lease in accordance with GAAP and to the extent, in the
case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of
credit) would appear as a liability on the Company’s
Consolidated Balance Sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by
the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Debt of another
Person (other than the Company or any Subsidiary).
“
Disqualified Stock ” means, with respect to any
Person, any Capital Stock of such Person which by the terms of such
Capital Stock (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon
the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or
exercisable for Debt or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity of the series
of Debt Securities.
“
Earnings from Operations ” for any period means net
earnings excluding gains and losses on sales of investments, net,
as reflected in the financial statements of the Company and its
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
“
Encumbrance ” means any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property
owned by the Company or any Subsidiary securing indebtedness for
borrowed money, other than a Permitted Encumbrance.
“ Equity
Investee ” means any Person in which the Company or any
Subsidiary holds an ownership interest that is accounted for by the
Company or a Subsidiary under the equity method of
accounting.
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“
GAAP ” means generally accepted accounting principles
as used in the United States applied on a consistent basis as in
effect from time to time; provided, that solely for purposes of
calculating the financ
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