NINTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
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 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 (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
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 financial covenants contained herein, “GAAP”
means generally accepted accounting principles as used in the United States on August
14, 2009 consistently applied.
“Pari Passu Debt” means (i) any Debt of the Company or a Subsidiary that is
secured only by Encumbrances that also secure the Securities issued hereunder on an
equal and ratable basis and (ii) any series of Securities issued hereunder that is
secured only by Encumbrances that also secure all other series of Securities issued
hereunder on an equal and ratable basis.
“Permitted Encumbrances” means leases, Encumbrances securing taxes,
assessments and similar charges, mechanics liens and other similar Encumbrances.
“Refinancing Debt” means Debt issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding Debt (including the principal
amount, accrued interest and premium, if any, of such Debt plus any fees and expenses
incurred in connection with such refinancing); provided that (a) if such new Debt, or
the proceeds of such new Debt, are used to refinance or refund Debt that is subordinated
in right of payment to the Securities of any series, such new Debt shall only be
permitted if it is expressly made subordinate in right of payment to the Securities of
such series at least to the extent that the Debt to be refinanced is subordinated to the
Securities of such series and (b) such new Debt does not mature prior to the stated
maturity of the Debt to be refinanced or refunded, and the weighted average life of such
new Debt is at least equal to the remaining weighted average life of the Debt to be
refinanced or refunded.
“Subsidiary” means, with respect to any Person, any corporation or other
entity of which a majority of (a) the voting power of the voting equity securities or
(b) in the case of a partnership or any other entity other than a corporation, the
outstanding equity interests of which are owned, directly or indirectly, by such Person.
For the purposes of this definition, “voting equity securities” means equity securities
having voting power for the election of directors, whether at all times or only so long
as no senior class of security has such voting power by reason of any contingency.
“Total Assets” as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries determined
in accordance with GAAP (but excluding accounts receivable and intangibles).
“Total Unencumbered Assets” means the sum of (i) Undepreciated Real Estate
Assets not subject to an Encumbrance and (ii) the value (determined in accordance
with GAAP) of all other assets (other than accounts receivable and intangibles) of
the Company and its Subsidiaries not subject to an Encumbrance.
“Undepreciated Real Estate Assets” as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries
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on such date, before depreciation, amortization and impairment charges
determined on a consolidated basis in accordance with GAAP.
“Unsecured Debt” means Debt of the types described in clauses (i), (iii)
and (iv) of the definition thereof which is not secured by any mortgage, lien, charge,
pledge or security interest of any kind upon any of the properties of the Company or any
Subsidiary.
(d) Pursuant to Section 902 of the Base Indenture, all definitions set forth in Section
1.2 of the Second Supplemental Indenture and Section 1.2 of the Seventh Supplemental
Indenture that relate to defined terms, the references to which are eliminated as a result
of the amended and restated definitions and covenants contained herein, are deleted in their
entirety.
ARTICLE TWO
COVENANTS AND DEFAULTS
COVENANTS AND DEFAULTS
Section 2.1. Limitations on Incurrence of Debt. Pursuant to Section 902 of the Base
Indenture: (i) Section 1004 of the Base Indenture is hereby amended and restated in its entirety as
set forth below (which covenants shall replace and apply in lieu of the covenants set forth in
Section 1004 of the Original Indenture, 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);
and (ii) the covenants set forth in 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 are hereby
deleted in their entirety:
(a) The Company will not, and will not permit any Subsidiary to, incur any Debt if,
immediately after giving effect to the incurrence of such additional Debt and the
application of the proceeds thereof, the aggregate principal amount of all outstanding Debt
of the Company and its Subsidiaries on a consolidated basis determined in accordance with
GAAP is greater than 60% of the sum of (without duplication) (i) Total Assets as of the end
of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if
such filing is not permitted under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering proceeds received
(to the extent such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the incurrence of
such additional Debt.
(b) In addition to the limitation set forth in subsection (a) of this Section 1004, the
Company will not, and will not permit any Subsidiary to, incur any Debt if the ratio of
Consolidated Income Available for Debt Service to the Annual Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which such additional
Debt is to be incurred shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated on
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the
assumption that (i) such Debt and any other Debt incurred by the Company and its
Subsidiaries since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such
period; (ii) the repayment or retirement of any other Debt by the Company and its
Subsidiaries since the first day of such four-quarter period had been incurred, repaid or
retired at the beginning of such period (except that, in making such computation, the amount
of Debt under any revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period); (iii) in the case of Acquired Debt or Debt
incurred in connection with any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma calculation;
and (iv) in the case of any acquisition or disposition by the Company or its Subsidiaries of
any asset or group of assets since the first day of such four-quarter period, whether by
merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition
or any related repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being included in
such pro forma calculation.
(c) In addition to the limitation set forth in subsections (a) and (b) of this Section
1004, no Subsidiary may incur any Unsecured Debt; provided, however, that the Company or a
Subsidiary may acquire an entity that becomes a Subsidiary that has Unsecured Debt if the
incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any
Subsidiary) was not intended to evade the foregoing restrictions and the incurrence of such
Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) would
otherwise be permitted under this Indenture.
(d) In addition to the limitation set forth in subsections (a), (b) and (c) of this
Section 1004, the Company and its Subsidiaries may not at any time own Total Unencumbered
Assets equal to less than 150% of the aggregate outstanding principal amount of the
Unsecured Debt and Pari Passu Debt of the Company and its Subsidiaries on a consolidated
basis.
(e) In addition to the limitation set forth in subsections (a), (b), (c) and (d) of
this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any
Debt for borrowed money secured by any mortgage, lien, charge, pledge, encumbrance or
security interest upon any of the property of the Company or any Subsidiary, whether owned
at the date hereof or hereafter acquired (other than Pari Passu Debt), if, immediately after
giving effect to the incurrence of such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding
Debt of the Company and its Subsidiaries on a consolidated basis for borrowed money
which is secured by any mortgage, lien, charge, pledge, encumbrance or security interest on
property of the Company or any Subsidiary (excluding any Pari Passu Debt) is greater than
40% of the sum of (without duplication): (i) Total Assets as of the end of the calendar
quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the
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incurrence of such
additional Debt and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the incurrence of
such additional Debt.
(f) For purposes of this Section 1004, Debt shall be deemed to be “incurred” by the
Company or a Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof.
(g) Notwithstanding the foregoing, nothing in the above covenants shall prevent: (i)
the incurrence by the Company or any Subsidiary of Debt between or among the Company, any
Subsidiary or any Equity Investee or (ii) the Company or any Subsidiary from incurring
Refinancing Debt.
Section 2.2 Events of Default. Pursuant to Section 902 of the Base Indenture: (i)
clauses (5) and (6) of Section 501 of the Original Indenture as they relate to (a) the Consent
Securities and (b) Securities issued on or after the date of this Supplemental Indenture (unless,
with respect to Securities referenced in the immediately preceding clause (b), otherwise provided
in the Officers’ Certificate or supplemental indenture authorizing any such series of Securities)
are hereby amended to provide that references to $10,000,000 contained in clauses (5) and (6) of
Section 501 of the Original Indenture are amended to be $50,000,000; and (ii) Section 2.3 of the
Second Supplemental Indenture and Section 2.3 of the Seventh Supplemental Indenture shall not apply
to (x) the Consent Securities or (y) any Securities issued on or after the date of this
Supplemental Indenture (unless, with respect to Securities referenced in the immediately preceding
clause (y), otherwise provided in the Officers’ Certificate or Supplemental Indenture authorizing
any such series of Securities).
ARTICLE THREE
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 3.1. 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 the Company pays to the Holders of the Consent Securities who have consented to such
amendments, supplements or modifications effected by this Supplemental Indenture the consent fee in
accordance with, and as contemplated by, the terms of that Consent
Solicitation Statement, dated September 21, 2009, relating to the solicitation of such
consents by the Company.
Section 3.2. 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.
Section 3.3. 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.
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Section 3.4. For the avoidance of doubt, this Supplemental Indenture shall not amend,
supplement or otherwise modify the Eighth Supplemental Indenture, dated August 14, 2009, by and
between the Company and the Trustee.
Section 3.5. This Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 3.6. 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 3.7. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth 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: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: | Senior Vice President & Treasurer | |||
| [SEAL] | ||||
| Attest: | ||||
By:
|
/s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
| Title: Assistant Secretary | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee as aforesaid |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
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