AMENDMENT AND SUPPLEMENT NO. 2 to Amended And Restated Security Agency Agreement
Exhibit 10.1
THIS AMENDMENT AND SUPPLEMENT NO. 2 (this “Supplement”) dated as of March 12, 2010 amends and
supplements the Amended and Restated Security Agency Agreement (as previously amended and
supplemented, 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).
RECITALS
WHEREAS, Bank of America, in its capacity as Global Administrative Agent, Collateral Agent and
ProLogis are parties to the SAA;
WHEREAS, Global Administrative Agent, Collateral Agent and ProLogis have agreed to amend
certain provisions of the SAA; and
WHEREAS, (a) the Required Lenders under and as defined in the Global Credit Agreement (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; and (b) the Majority Credit Parties
(as defined in the SAA) have approved and agreed to this Supplement and authorized and directed
Collateral 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, capitalized
terms have the respective meanings set forth in the SAA unless otherwise defined herein or the
context otherwise requires.
(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. AMENDMENTS.
(a) Section 1(a) of the SAA is amended by adding the following definitions in appropriate
alphabetical sequence:
“Indenture” means the Indenture dated as of March 1, 1995 between
ProLogis (then known as Security Capital Industrial Trust) and US Bank Trust
National Association (as successor to State Street Bank and Trust Company), as
trustee.
“Note Agreement” means (i) the Indenture, (ii) the Trust Deed and (iii)
any other indenture, trust deed or similar document governing indebtedness of
ProLogis or an Affiliate thereof that ProLogis specifies, in the Notice of
Designated Senior Debt delivered to Collateral Agent with respect to such
indebtedness, is to be a “Note Agreement” hereunder.
“Trust Deed” means the Trust Deed dated as of April 13, 2004 among PLD
International Finance LLC, ProLogis and ABN AMRO Trustees Limited, as Trustee,
pursuant to which PLD International Finance LLC issued €350,000,000 of 4.375%
Notes due 2011.
(b) Section 1(a) is further amended by replacing the definitions of “Financing Agreements”,
“Noteholder” and “Representative” with the following, respectively:
“Financing Agreements” means this Agreement, the Global Credit Agreement,
each Other DSD Agreement (including the Indenture and the Trust Deed), each
Hedging Agreement, each Security Document, each Guaranty and any other
instrument, document or agreement entered into in connection with any of the
foregoing or any Credit Obligation.
“Noteholder” means the holders of (a) debt securities issued under the
Indenture, (b) debt securities issued under the Trust Deed and (c) any other
publicly-traded debt securities issued by ProLogis or an Affiliate thereof
that have been designated by ProLogis as Other DS Debt, in each case in their
capacities as holders of such securities and not in any other capacity.
“Representative” means (a) with respect to Credit Obligations arising
under the Indenture, the trustee under the Indenture and any successor thereto
in such capacity; (b) with respect to Credit Obligations arising under the
Trust Deed, the trustee under the Trust Deed and any successor thereto in such
capacity, and (c) with respect to any other Credit Obligations, the agent,
trustee or other representative for the holders of such Credit Obligations;
provided that if there is no such agent, trustee or other
representative for any holder of such other Credit Obligations, then
“Representative” shall mean such holder.
(c) Sections 8(d) and (e) of the SAA are amended in their entirety to read as follows,
respectively:
(d) Subject to any limitation set forth in the applicable Financing
Agreement or Notice of Designated Senior Debt (and, in the case of the
Indenture, the Trust Deed and any other Note Agreement, subject to compliance
with the requirements of Section 8(e)), ProLogis may revoke the classification
of Designated Senior Debt with respect to all, but not less than all, of the
indebtedness arising under any Financing Agreement upon delivery of notice to
Collateral Agent in the manner provided in Section 11(a).
(e) Notwithstanding anything contained herein to the contrary (but
subject to the proviso below), ProLogis may, by notice to Collateral Agent, (i)
revoke the
2
classification of any one or more of the Indenture, the Trust Deed or any other
Note Agreement as an Other DSD Agreement, and concurrently revoke the
classification of all, but not less than all, of the indebtedness arising under
the Indenture, the Trust Deed or such other Note Agreement, as the case may be,
as Other DS Debt, in any such case not less than 90 days after disclosing such
revocation (in a footnote or otherwise) in a Form 10-Q or 10-K filed with the
United States Securities Exchange Commission (and upon such revocation, the
obligations under the Indenture, the Trust Deed or such other Note Agreement,
as the case may be, shall no longer constitute Designated Senior Debt or Credit
Obligations); provided that ProLogis may (in its sole discretion), by
notice to Collateral Agent, agree that it will not, at any time prior to a date
(or the occurrence of an event) specified by ProLogis in such notice, revoke
the Designated Senior Debt classification of the indebtedness arising under any
one or more of the Indenture, the Trust Deed or any other Note Agreement, in
which case the classification of the applicable indebtedness may not be revoked
until such specified date (or the occurrence of such event).
SECTION 3. NOTICE OF NON-REVOCATION.
ProLogis hereby notifies Collateral Agent that it will not, at any time prior to the earlier
of (i) August 21, 2012 or (ii) the date on which the Global Credit Agreement terminates, revoke the
Designated Senior Debt classification of any indebtedness of ProLogis under the Indenture or the
Trust Deed.
SECTION 4. MISCELLANEOUS.
(a) Nothing contained in this Supplement constitutes a waiver, amendment or modification of
any provision of the Global Credit Agreement or any other Loan Document (as defined in the Global
Credit Agreement) other than the SAA.
(b) The provisions of Sections 11(f), (j), (k), (m), (p) and (q) of the SAA are incorporated
herein by reference as if fully set forth herein, mutatis mutandis.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first above
written.
| BANK OF AMERICA, N.A., as
Global Administrative Agent, individually in such capacity and on
behalf of the Majority Credit Parties |
||||
| By: | /s/ Will X. Xxxxxx, Xx. | |||
| Will X. Xxxxxx, Xx. | ||||
| Senior Vice President | ||||
| BANK OF AMERICA, N.A., as Collateral Agent |
||||
| By: | /s/ Will X. Xxxxxx, Xx. | |||
| Will X. Xxxxxx, Xx. | ||||
| Senior Vice President | ||||
Signature Page to Amendment and Supplement No. 2 to
Amended and Restated Security Agency Agreement
Amended and Restated Security Agency Agreement
| Acknowledged and agreed: PROLOGIS, a Maryland real estate investment trust |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Xxxxxxx X. Xxxxxx, Xx. | ||||
| Senior Vice President and Treasurer | ||||
Signature Page to Amendment and Supplement No. 2 to
Amended and Restated Security Agency Agreement
Amended and Restated Security Agency Agreement
