THIRTEENTH SUPPLEMENTAL INDENTURE
EXHIBIT 4.27
THIRTEENTH SUPPLEMENTAL INDENTURE
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of , 2011 (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 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000 (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, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, 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.
RECITALS OF THE COMPANY
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, 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 (the “Fourth Supplemental
Indenture”), a Fifth Supplemental Indenture, dated as of November 8, 2007 (the “Fifth
Supplemental Indenture”), a Sixth Supplemental Indenture, dated as of May 7, 2008 (the
“Sixth Supplemental Indenture”), a Seventh Supplemental Indenture, dated as of May 7, 2008
(the “Seventh Supplemental Indenture”), an Eighth Supplemental Indenture, dated as of
August 14, 2009 (the “Eighth Supplemental Indenture”), a Ninth Supplemental Indenture, dated
as of October 1, 2009 (the “Ninth Supplemental Indenture”), a Tenth Supplemental Indenture,
dated as of March 16, 2010 (the “Tenth Supplemental Indenture”), an Eleventh Supplemental
Indenture, dated as of , 2011 (the “Eleventh Supplemental
Indenture”), and a Twelfth Supplemental Indenture, dated as of , 2011
(the “Twelfth Supplemental Indenture”) (as so amended and 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, AMB Property, L.P., has solicited the consent of Holders of the Company’s 5.50% Notes
due 2012; 5.50% Notes due 2013; 7.625% Notes due 2014; 7.81% Notes due 2015; 9.34% Notes due 2015;
5.625% Notes due 2015; 3.25% Convertible Senior Notes due 2015; 5.75% Notes due 2016; 8.65% Notes
due 2016; 5.625% Notes due 2016; 7.625% Notes due 2017; 6.25% Notes due 2017; 6.625% Notes due
2018; 7.375% Notes due 2019; 6.875% Notes due 2020; 2.25% Convertible Senior Notes due 2037; 1.875%
Convertible Senior Notes due 2037; and 2.625% Convertible Senior Notes due 2038 (collectively, the
“Consent Securities”) to the amendments effected by this Supplemental Indenture.
1
WHEREAS, the Holders of not less than a majority in aggregate principal amount of all of the
Outstanding (i) Consent Securities voting as a single class, (ii) Consent Securities, excluding the
2.25% Convertible Senior Notes due 2037, 1.875% Convertible Senior Notes due 2037 and 2.625%
Convertible Senior Notes due 2038, voting as a single class, (iii) 2.25% Convertible Senior Notes
due 2037, 1.875% Convertible Senior Notes due 2037 and 2.625% Convertible Senior Notes due 2038,
voting as a single class, (iv) Consent Securities, excluding the 3.25% Convertible Senior Notes due
2015, 2.25% Convertible Senior Notes due 2037, 1.875% Convertible Senior Notes due 2037 and 2.625%
Convertible Senior Notes due 2038, voting as a single class, and (v) Consent Securities, excluding
the 9.34% Notes due 2015, 8.65% Notes due 2016, 7.81% Notes due 2015, 7.625% Notes due 2017 and
5.50% Notes due 2013, voting as a single class, have consented to the applicable 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, as
applicable, 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
AMENDMENTS TO BASE INDENTURE AND CONSENT SECURITIES
AMENDMENTS TO BASE INDENTURE AND CONSENT SECURITIES
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, Sections and clauses, unless otherwise specified, refer
to the corresponding Articles, Sections and clauses of this Supplemental Indenture.
Section 1.3. Amendments to the Base Indenture Pursuant to Section 902 of the Base
Indenture.
(a) Clauses (5) and (6) of Section 501 (Events of Default) of the Original Indenture are
hereby deleted in their entirety and replaced with “[Intentionally Omitted]” and all
cross-references and definitions related thereto are deleted in their entirety.
2
(b) Article Eight (Consolidation, Merger, Sale, Lease or Conveyance) of the Original Indenture
is hereby deleted in its entirety and replaced with “[Intentionally Omitted]” and all
cross-references and definitions related thereto are deleted in their entirety.
(c) The Original Indenture is hereby amended by deleting the following Sections of the
Original Indenture and all cross-references and definitions related thereto in their entirety:
Section 1006 (Maintenance of Properties);
Section 1007 (Insurance);
Section 1008 (Payment of Taxes and Other Claims); and
Section 1009 (Provision of Financial Information).
All such deleted Sections are replaced with “[Intentionally Omitted]”.
(d) Section 2.2 (Provision of Financial Information) of each of the Second Supplemental
Indenture and Seventh Supplemental Indenture is hereby deleted in its entirety and replaced with
“[Intentionally Omitted]” and all cross-references and definitions related thereto are deleted in
their entirety.
(e) Section 2.3 (Events of Default) of the Second Supplemental Indenture is hereby deleted in
its entirety and replaced with “[Intentionally Omitted]” and all cross-references and definitions
related thereto are deleted in their entirety.
(f) Section 2.1
(Limitations on Incurrence of Debt) of the Eighth Supplemental Indenture is
hereby deleted in its entirety and replaced with the following:
“Section 1004 of the Original Indenture and all cross-references and definitions related
thereto, as amended by Section 2.1 of the First Supplemental Indenture, dated as of February
9, 2005, between the Company and the Trustee, Section 2.1 of the Second Supplemental
Indenture and Section 2.1 of the Seventh Supplemental Indenture, shall not apply to the
Securities issued on or after the date of this Supplemental Indenture.”
(g) Section 2.1 (Limitations on Incurrence of Debt) of the Ninth Supplemental Indenture is
hereby deleted in its entirety and replaced with the following:
“Section 1004 of the Original Indenture and all cross-references and definitions related
thereto, as amended by Section 2.1 of the First Supplemental Indenture, Section 2.1 of the
Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture, shall
not apply to the Consent Securities.”
(h) Section 2.2
(Events of Default) of each of the Eighth Supplemental Indenture and Ninth
Supplemental Indenture is hereby deleted in its entirety and replaced with “[Intentionally
Omitted]” and all cross-references and definitions related thereto are deleted in their entirety.
(i) Section 4.05 (Exclusion of Certain Provisions from Base Indenture) of each of the Fourth
Supplemental Indenture, Fifth Supplemental Indenture, Sixth Supplemental Indenture and Tenth
Supplemental Indenture is hereby deleted in its entirety and replaced with the following:
3
“Section 1004, Section 1006, Section 1007, Section 1008, Section 1009 and Section 1011 of
the Base Indenture shall not apply to the Notes. Section 1002, Section 1003, Section 1005,
Section 1010 and Section 1012 of the Base Indenture shall be applicable to the Notes.”
(j) The introductory phrase of Section 5.01 (Events of Default) of each of the Fourth
Supplemental Indenture, Fifth Supplemental Indenture and Sixth Supplemental Indenture, which states
as follows: “The provisions of Section 501(2) and Section 501(3) of the Base Indenture shall not be
applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base
Indenture, the following events, in addition to the events described in clauses (1), (4), (5) (as
amended by the Second Supplemental Indenture to the Base Indenture), (6) (as amended by the Second
Supplemental Indenture to the Base Indenture), (7) and (8) of the Base Indenture, shall be Events
of Default with respect to the Notes:”, is hereby amended in its entirety to read: “The provisions
of Section 501(2), Section 501(3), Section 501(5) and Section 501(6) of the Base Indenture shall
not be applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base
Indenture, the following events, in addition to the events described in clauses (1), (4), (7) and
(8) of Section 501 of the Base Indenture, shall be Events of Default with respect to the Notes:”.
(k) The introductory phrase of Section 5.01 (Events of Default) of the Tenth Supplemental
Indenture, which states as follows: “The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to the events described in clauses
(1), (4), (5) (as amended by the Ninth Supplemental Indenture to the Base Indenture), (6) (as
amended by the Ninth Supplemental Indenture to the Base Indenture), (7) and (8) of Section 501 of
the Base Indenture, shall be Events of Default with respect to the Notes:”, is hereby amended in
its entirety to read: “The provisions of Section 501(2), Section 501(3), Section 501(5) and Section
501(6) of the Base Indenture shall not be applicable to the Notes. As contemplated under Section
301 and Section 501(9) of the Base Indenture, the following events, in addition to the events
described in clauses (1), (4), (7) and (8) of Section 501 of the Base Indenture, shall be Events of
Default with respect to the Notes:”.
(l) Article VII (Consolidation, Merger, Sale, Conveyance and Lease) of each of the Fourth
Supplemental Indenture, Fifth Supplemental Indenture, Sixth Supplemental Indenture and Tenth
Supplemental Indenture is hereby deleted in its entirety and replaced with “[Intentionally
Omitted]” and all cross-references and definitions related thereto are deleted in their entirety.
Section 1.4. Amendments to the Consent Securities Pursuant to Section 902 of the Base
Indenture.
The Consent Securities are hereby further amended to delete all provisions and all
cross-references and definitions related thereto inconsistent with the amendments to the Base
Indenture effected by this Supplemental Indenture.
4
ARTICLE TWO
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 2.1. This Supplemental Indenture shall be effective as of the opening of business on
the date first above written upon the execution and delivery hereof by each of the parties hereto.
Notwithstanding the foregoing, the amendments, supplements or modifications as set forth in this
Supplemental Indenture shall not become operative with respect to the Consent Securities unless and
until AMB Property, L.P. pays to the Holders of the Consent Securities who have consented to such
amendments, supplements or modifications effected by this Supplemental Indenture any applicable
consent fees in accordance with, and as contemplated by, the terms of that Prospectus, dated
, 2011, relating to the solicitation of such consents by AMB Property, L.P.
Section 2.2. Except as expressly modified or amended hereby, the Base Indenture continues in
full force and effect and is in all respects confirmed, ratified and preserved. Notwithstanding
the foregoing, in the case of conflict, the provisions of this Supplemental Indenture shall
control.
Section 2.3. This Supplemental Indenture and all its provisions shall be deemed a part of the
Base Indenture in the manner and to the extent herein and therein provided.
Section 2.4. For the avoidance of doubt, this Supplemental Indenture shall not amend,
supplement or otherwise modify the Eleventh Supplemental Indenture and Twelfth Supplemental
Indenture.
Section 2.5. This Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 2.6. This Supplemental Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 2.7. The Trustee shall not have any responsibility for the Recitals of the Company
hereto, which Recitals are made by the Company alone, or for the validity or sufficiency of this
Supplemental Indenture.
[Remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth
Supplemental Indenture to be duly executed and the Company has caused its seal
to be hereunto affixed and attested, all as of the day and year first above
written.
| PROLOGIS |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[SEAL]
Attest:
| By: | |||
| Name: | |||
| Title: | |||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee as aforesaid |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Thirteenth Supplemental Indenture]
