AMENDMENT AND SUPPLEMENT NO.
1
to
Amended And Restated Security Agency Agreement
THIS AMENDMENT AND
SUPPLEMENT NO 1 (this “ Supplement ”)
dated as of August 21, 2009 amends and supplements the Amended
and Restated Security Agency Agreement (the “
SAA ”) dated as of October 6, 2005 among
BANK OF AMERICA, N.A. (“ Bank of America
”) , as Global Administrative Agent (as defined therein)
on behalf of the Global Lenders (as defined therein), certain other
creditors (or the representatives of such creditors) of ProLogis, a
Maryland real estate investment trust (“
ProLogis ”), and Bank of America, as Collateral
Agent (as defined therein).
WHEREAS, Bank of
America, in its capacity as Global Administrative Agent, Collateral
Agent and ProLogis are parties to the SAA;
WHEREAS, in
connection with a Third Amendment (the “ Third
Amendment ”) to the Global Credit Agreement (as
defined in the SAA), Global Administrative Agent, Collateral Agent
and ProLogis have agreed to supplement the provisions of the SAA
to, among other things, permit ProLogis to grant liens on specified
collateral to certain specified holders of Designated Senior Debt
(as defined in the SAA), which collateral will not be shared with
other holders of Designated Senior Debt;
WHEREAS, pursuant
to the Third Amendment, the Majority Credit Parties (as defined in
the SAA) have approved and agreed to this Supplement and authorized
and directed Global Administrative Agent to sign this Supplement on
their behalf;
NOW, THEREFORE,
Global Administrative Agent (in such capacity and on behalf of
Global Lenders that constitute Majority Credit Parties), Collateral
Agent and ProLogis agree as follows:
SECTION 1.
DEFINITIONS AND INTERPRETATION.
(a) In
addition to terms defined in the preamble and recitals to this
Supplement, (i) capitalized terms have the respective meanings set
forth in the SAA unless otherwise defined herein or the context
otherwise requires and (ii) the following terms have the
respective meanings indicated below:
“
Addition Notice ” means a notice from ProLogis
to Collateral Agent substantially in the form of Attachment
B .
“
Deletion Notice ” means a notice from ProLogis
to Collateral Agent substantially in the form of Attachment
C .
“
Grantor ” means any Person that has granted a
Lien on Specified Property.
“
Specified DS Debt ” is defined in
Section 2(a) .
“
Specified Holders ” is defined in
Section 2(a) .
“
Specified Property ” means, subject to
Section 2(c) , specific property designated in
writing by ProLogis pursuant to a Specified Property Notice or an
Addition Notice.
“
Specified Property Notice ” is defined in
Section 2(a) .
Amendment and Supplement
No. 1 to
Amended and Restated Security Agency Agreement
“
Specified Property Pool ” means, with respect
to any Specified DS Debt, the pool of Specified Property on which
Liens have been granted to secure such Specified DS
Debt.
“
Specified Property Proceeds ” means any
proceeds of any Specified Property received by any applicable
Specified Holder on or after the Trigger Date, including any
proceeds of any foreclosure, realization, collection, sale or other
disposition of such Specified Property, any amount paid or payable
under or in connection with such Specified Property, any insurance
proceeds payable in respect of such Specified Property, any
proceeds of any condemnation or other taking of such Specified
Property, and any non-cash proceeds of such Specified Property (and
any subsequent proceeds thereof).
(b) The rules
of interpretation set forth in Section 1.2 of the Global
Credit Agreement shall apply in interpreting this Supplement
(including all Attachments hereto) as if such rules were fully set
forth herein.
SECTION 2.
DESIGNATION OF SPECIFIED PROPERTY.
(a) ProLogis
may from time to time, in its sole and complete discretion, grant,
and/or cause one or more of its Affiliates to grant, Liens on
Specified Property to certain specified Credit Parties or an agent
therefor (any such grantee, together with any Credit Parties for
which such grantee acts as agent, the “ Specified
Holders ” with respect to such Specified Property) to
secure specified Designated Senior Debt held by such Specified
Holders (“ Specified DS Debt ”).
Concurrently with any such grant, ProLogis will deliver to
Collateral Agent a duly-completed notice thereof substantially in
the form of Attachment A (a “ Specified
Property Notice ”)
(b) Subject
to the agreements between ProLogis and the applicable Specified
Holders, ProLogis may add Specified Property to, or delete
Specified Property from, a Specified Property Pool by delivering to
Collateral Agent an Addition Notice or a Deletion Notice, as
applicable. If at any time all Specified Property is deleted from a
Specified Property Pool, then the Designated Senior Debt previously
secured by such Specified Property Pool shall cease to be Specified
DS Debt.
(c) Notwithstanding
any other provision of this Supplement, (i) no Collateral
shall at any time constitute Specified Property or otherwise be
included in any Specified Property Pool; and (ii) any
voluntary payment by any Grantor from any source other than
Specified Property and Specified Property Proceeds, or recovery
from any property of any Grantor that does not constitute Specified
Property Proceeds, shall be subject to the sharing and equalization
provisions of the SAA.
SECTION 3.
EFFECT OF RECEIPT OF SPECIFIED PROPERTY PROCEEDS UNDER
SAA.
(a) Notwithstanding
any other provision of this Supplement or the SAA, (i) the
receipt by any Specified Holder of Specified Property Proceeds
shall not constitute a Recovery; (ii) no Specified Property
Proceeds (or any effect of the reduction of Credit Obligations as a
result of the application of such Specified Property Proceeds)
shall be included in the calculation of any Aggregate Recovery
Percentage, the Final Aggregate Recovery Percentage, any Final
Recovery Percentage, any Recovery Percentage or any Recovery
Shortfall; and (iii) without limiting the effect of the
foregoing clause (ii) , so long as any Specified Holder of
any Specified DS Debt has not irrevocably received payment in full
of such Specified DS Debt, for purposes of the SAA (including for
the purpose of determining any amount to be applied pursuant to
Section 4 thereof), the amount of such Specified DS Debt held
by such Specified Holder at any time shall be deemed to be equal to
(and the amount of the Credit Obligations and Shared Credit
Obligations held by such Specified Holder shall be deemed to
include) the sum of (A) the actual amount of such Specified DS
Debt then held by such Specified Holder plus (B) the aggregate
amount of
Amendment and Supplement
No. 1 to
Amended and Restated Security Agency Agreement
2
all Specified
Property Proceeds previously applied to the payment of such
Specified DS Debt of such Specified Holder on or after the Trigger
Date.
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