exv10w30






Exhibit 10.30









Dated 9 February 2009




ProLogis




and




Reco China Logistics Pte Ltd




SUPPLEMENTAL AGREEMENT




	 	 	 
	 

	 	ALLEN & GLEDHILL LLP

ONE MARINA BOULEVARD #28-00

SINGAPORE 018989







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Contents	 	Page	 
	1. Definitions and Interpretation
	 	 	- 1 -	 
	 
	2. Amendments to the Agreement
	 	 	- 1 -	 
	 
	3. Confirmation and Incorporation
	 	 	- 6 -	 
	 
	4. Third Party Rights
	 	 	- 6 -	 
	 
	5. Counterparts
	 	 	- 6 -	 
	 
	6. Governing Law and Arbitration
	 	 	- 6 -	 







i









 







This Supplemental Agreement is made on 9 February 2009 between:





	(1)	 	ProLogis, a Maryland real estate investment trust whose principal place of business is at
4545 Airport Way, Denver, Colorado USA 80239 (“ProLogis”); and
	 
	(2)	 	Reco China Logistics Pte Ltd whose registered office is at 168 Robinson Road, #37-01 Capital
Tower, Singapore 068912 (“RECO”).





Whereas:





	(A)	 	On 23 December 2008, the Parties entered into a Master Implementation Agreement (the
“Agreement”) to reflect the terms upon which ProLogis shall procure the sale by its Affiliates
of, and RECO shall purchase or procure the purchase by its Affiliates of, the Specified
Interests (each term as defined in the Agreement), upon the terms and conditions set out
therein.
	 
	(B)	 	Completion is being effected in accordance with the terms and conditions of the Agreement and
legal and beneficial interest in and title to the Specified Interests is being transferred to
RECO and its Affiliates.
	 
	(C)	 	The Parties have agreed to amend the Agreement on the terms and subject to the conditions of
this Supplemental Agreement.





It is agreed as follows:





	1.	 	Definitions and Interpretation
	 
	1.1	 	Words and expressions which have a defined meaning in the Agreement shall have the same
meaning when used in this Supplemental Agreement.
	 
	1.2	 	Words importing the singular include the plural and vice versa, words importing a gender
include every gender and references to persons include bodies corporate or unincorporate.
	 
	2.	 	Amendments to the Agreement
	 
	2.1	 	It is hereby agreed between the Parties that the Agreement shall be amended with effect from
the date hereof as follows:






	 	2.1.1	 	by deleting Clause 7.3 in its entirety and substituting with the following:
	 
	 	 	 	“Against compliance with the foregoing provisions, RECO shall on Completion pay the
amount of US$500 million to ProLogis. The balance amount of US$800 million (in
addition of any Adjustment Amount pursuant to Clause 3.4) (the “Balance
Consideration”) shall be paid to ProLogis on the date falling seven Business Days
following the fulfilment or waiver of the Audit Conditions (as defined in Clause
7A), or on such other date as the Parties may agree in writing.”;
	 
	 	2.1.2	 	by inserting new Clauses 7A, 7B and 7C immediately after Clause 7 as follows:






	 	“7A.	 	Audit Conditions
	 
	 	7A.1	 	Conduct of Audit by ProLogis





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ProLogis shall immediately after Completion procure that KPMG (or such other auditor
nominated by RECO or its Affiliate) (the “Auditors”) shall promptly and diligently
conduct an audit (each, an “Audit”) of (i) the Barbados Managementco and each
Barbados Targetco that had gross revenue or assets in excess of BD$1,000,000
(collectively, the “Barbados Entities”) for previous financial years in which such
Barbados Entity had gross revenue or assets in excess of BD$1,000,000 up to the
financial year ended December 31, 2008 (the “Relevant Years”) in compliance with
applicable Barbados laws, and (ii) of each PRCco for the financial year ended 31
December 2008, such audit to be completed and an audit opinion in the agreed terms
(each, an “Audit Opinion”) issued as soon as possible. To this end:




	 	7A.1.1	 	ProLogis shall bear and be responsible for all costs and expenses incurred in relation to each Audit; and
	 
	 	7A.1.2	 	ProLogis shall be solely responsible for providing any assistance reasonably
required by the Auditors for each Audit, including without limitation, (i)
furnishing such documents and information relating to each Barbados Entity and
PRCco as may be reasonably requested by the Auditors, (ii) responding to any
queries or questions the Auditors may have in relation to the business and
operational activities of each Barbados Entity and PRCco during the Relevant
Years, (iii) addressing any discrepancies raised by the Auditors in relation to
the financial books and records of each Barbados Entity and PRCco, (iv) issuing
any and all audit confirmations as may be required by the Auditors, and (v)
providing or procuring that its officers provide any representation letters
required by the Auditors to issue its Audit Opinion, provided that if any such
representation letter has to be provided, in the reasonable judgement of RECO
or by applicable law, by a director or manager of each Barbados Entity and
PRCco, ProLogis shall provide or procure its officers to provide all such
representations, assurances, undertakings and/or ProLogis shall provide such
indemnities as may be required by such director or manager relating to such
representations.






In the event that, in the reasonable judgement of RECO, ProLogis is not discharging
its obligations as set out above or any Audit is not proceeding smoothly and/or
diligently for any reason, RECO or its Affiliates shall have the right at any time
to step in and oversee the conduct of the Audit by the Auditors at ProLogis’ cost
and to the exclusion of ProLogis.




	 	7A.2	 	Conduct of Financial Review by RECO
	 
	 	7A.2.1	 	RECO shall immediately after Completion procure that Ernst & Young (“EY”)
shall promptly and diligently conduct procedures agreed upon between RECO and
EY with respect to each Barbados Entity (a “Financial Review”) for the Relevant
Years, such Financial Review to be completed and a review report (the “Review
Report”) issued within 21 days of the date hereof to RECO, based on financial
and other information relating to each Barbados Entity as furnished by ProLogis
(collectively, the “Furnished Information”). To this end:






	 	7A.2.1.1	 	RECO shall bear and be responsible for all costs and expenses
incurred in relation to the Financial Review; and




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	 	7A.2.1.2	 	ProLogis shall provide any assistance (“Additional Assistance”)
reasonably required by the Auditors for the Financial Review, including
without limitation, (i) furnishing such additional documents and
information relating to each Barbados Entity as may be reasonably
requested by EY, (ii) responding to any queries or questions EY may
have in relation to the business and operational activities of each
Barbados Entity during the Relevant Years, and (iii) addressing any
discrepancies raised by EY in relation to the financial books and
records of each Barbados Entity.






	 	7A.3	 	Audit Condition
	 
	 	7A.3.1	 	In the event that (i) the Auditors issue an unqualified Audit Opinion in
relation to each and every Barbados Entity; (ii) the Review Report confirms
that the Furnished Information does not contain any material irregularities or
discrepancies in the financial position of each Barbados Entity as at 31
December 2008 (and RECO acknowledges that, as far as it is aware and based on
and to the extent of the information provided to it or EY as at the date
hereof, there is no such material irregularity or discrepancy, save and except
for such irregularities or discrepancies which have been disclosed by RECO to
ProLogis, including the issues relating to the injection of capital by the
Barbados Targetcos to the PRCcos in compliance with applicable PRC law); and
(iii) there is no material deviation between the Audit Opinion and the
Furnished Information on the financial position of each Barbados Entity as at
31 December 2008 ((i), (ii) and (iii) collectively, the “Audit Conditions”),
RECO shall pay the Balance Consideration to ProLogis in accordance with Clause
2.1.1.
	 
	 	7A.3.2	 	In the event that the Audit Conditions are not satisfied or waived (in whole
or in part and conditionally or unconditionally) by RECO in its absolute
discretion:






	 	7A.3.2.1	 	this Supplemental Agreement (other than this Clause 7A.3.2 and
Clauses 1, 2.5, 7B, 7C.2, 10, 11.1 to 11.6 and 11.8 to 11.14 of the
Agreement) shall immediately cease and determine;
	 
	 	7A.3.2.2	 	neither Party shall have any claims against the other for costs,
damages, compensation or otherwise, save and except for any claims
which have accrued prior to such termination; and
	 
	 	7A.3.2.3	 	the Parties shall co-operate and work together to promptly and
diligently implement the Unwinding Process as defined and set out in
Clause 7B.






	 	 	 	For the avoidance of doubt, neither the execution of this Agreement nor the
payment of the Balance Consideration is intended to nor shall it affect,
restrict or prejudice any claim which RECO would have been entitled to make
or pursue under the terms of the Agreement or this Supplemental Agreement.
	 
	 	7B.	 	Unwinding Process
	 
	 	7B.1	 	Unwinding Process
	 
	 	 	 	The Parties shall immediately after the termination of this Supplemental
Agreement pursuant to Clause 7A.3.2 do such acts and things and take such
steps as may be in their power to (and procure that other persons) prepare,




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	 	 	 	execute and deliver and do all such further documents, agreements, deeds and
other instruments, and do such acts and things as may be reasonably required
to restore, as nearly as possible, each Party to the position they were in
prior to Completion. These steps (the “Unwinding Process”) shall include,
but not be limited to, the following:
	 
	 	7B.1.1	 	the refund by ProLogis to RECO of the amount of US$500 million paid by RECO
pursuant to Clause 2.1.1 as well as other stamp duty and transfer taxes paid by
RECO and/or its Affiliates to acquire the Specified Interests; and
	 
	 	7B.1.2	 	the retransfer (the “Retransfer”) by RECO or its Affiliates to ProLogis or
its Affiliates of the Specified Interests on an “as is, where is” basis,
without any representations or warranties (express or implied) save and except
as to title (and only in respect of the period after Completion and excluding
(i) any and all Encumbrances existing or created on or before Completion; and
(ii) any Encumbrances created after Completion arising from loan facilities or
other indebtedness taken up by the Specified ProLogis Affiliates in the
ordinary course of their business).
	 
	 	7B.2	 	No Responsibility for Losses
	 
	 	 	 	The ProLogis Specified Affiliates shall be managed and operated in a manner
consistent with past practice and in accordance with the terms and
conditions of any management or consultancy agreements existing as at
Completion (as such terms and conditions may be amended from time to time).
RECO shall, to the extent practicable, consult with ProLogis prior to taking
any action in respect of the PRC Projects or Pipeline PRC Projects which is
not in the ordinary course of business of the relevant or affected PRCco.
The Parties accordingly acknowledge and agree that neither RECO or its
Affiliates shall be responsible for any Losses suffered or incurred by
ProLogis or its Affiliates (including, following the completion of the
Unwinding Process, the Specified ProLogis Affiliates) arising from or in
connection with the Retransfer including without limitation, any impairment
or deterioration in the value of the Specified Interests.
	 
	 	7B.3	 	Costs and Expenses
	 
	 	 	 	All and any costs and expenses (including legal fees) incurred by the
Parties and the Specified ProLogis Affiliates and their subsidiaries in
connection with the Unwinding Process (including without limitation the
payment of any stamp duty or other taxes) shall be borne by ProLogis.
	 
	 	7C.	 	Warranties and Indemnities
	 
	 	7C.1	 	ProLogis Undertakings
	 
	 	 	 	ProLogis undertakes to and with RECO as follows (the “ProLogis
Undertakings”) that, except as may be otherwise agreed in writing between
the Parties:
	 
	 	7C.1.1	 	each Audit shall be conducted in compliance with applicable Barbados laws or
PRC laws (as the case may be) and accounting principles and each Audit Opinion
shall be issued in accordance with International Financial and Reporting
Standards or such other standards as are applicable in Barbados or PRC (as the
case may be) and which comply with Barbados law or PRC laws (as the case may
be) and which are agreed between the Parties;




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	 	7C.1.2	 	the Furnished Information as well as any information provided to RECO in
connection with the Additional Assistance shall be true, complete and accurate
in all material respects and not misleading;
	 
	 	7C.1.3	 	save as expressly disclosed in the Due Diligence Reports and the Disclosure
Schedules contained in Schedule 10 of the Agreement, no financial indebtedness
is or remains due and owing by any of the Specified ProLogis Affiliates or its
subsidiaries to, and no sum remains to be lent to any of the Specified ProLogis
Affiliates or its subsidiaries by, any banks or financial institutions; and
	 
	 	7C.1.4	 	save for the powers of attorneys set out in the Disclosure Schedule, none of
the Specified ProLogis Affiliates has given a power of attorney or any other
authority (express, implied or ostensible) which is still outstanding or
effective to any person to enter into any contract or commitment or do anything
on its behalf.
	 
	 	7C.2	 	Indemnity
	 
	 	 	 	ProLogis shall defend, indemnify and hold harmless RECO and its Affiliates,
each Barbados Entity and its officers and managers in full from and against,
and shall promptly reimburse them for, all and any Losses (including any
interest, fines and/or penalties applicable) arising from, attributable to
or in connection with (i) any breach of this Supplemental Agreement
including the ProLogis Undertakings set forth in Clause 7C, and (ii) the
failure by each Barbados Entity to conduct an Audit for each of the Relevant
Years.” and






	 	2.1.3	 	by deleting Clause 11.4 in its entirety and substituting with the following:
	 
	 	 	 	“Save for any Buyer Indemnitees and/or any RECO Group Company and their respective
directors, officers and managers, who may enforce and rely on Clauses 3.2.2, 3.5,
7A, 7B, 7C, 8.1, 8.2, 8.8 and 8.9 to the same extent as if it were a Party to this
Agreement, a person who is not a Party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any
term of this Agreement.”






	2.2	 	Acquisition of Misato
	 
	 	 	The Parties acknowledge and agree that notwithstanding the provisions of Clause 8.12 of the
Agreement, the acquisition of the issued share capital of Misato 2 Singco shall be effected
within 30 days after the date of payment of the Balance Consideration instead.
	 
	2.3	 	Transfer of Targetco Notes
	 
	 	 	Notwithstanding anything contained in the Agreement or the allonges relating to the transfer
of the Targetco Notes, ProLogis acknowledges, confirms and agrees with RECO that all of its
rights, interest and entitlements in and to the principal and interest amounts payable on or
accrued and unpaid in respect of the Targetco Notes have been transferred to and vest in
RECO on and with effect from Completion.
	 
	2.4	 	Amounts owing to ProLogis and its Affiliates
	 
	 	 	ProLogis undertakes to and agrees with RECO that as at the date hereof, no further amounts
(whether in the form of payables, promissory notes or otherwise) are due and/or owing
directly or indirectly by any of the Specified ProLogis Affiliates or its subsidiaries to
ProLogis and/or its Affiliates. Accordingly, and without limiting the generality of the
foregoing, to the





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	 	 	extent that the Furnished Information as well as any information provided to RECO in
connection with the Additional Assistance discloses or reflects any amounts due and owing by
any of the Barbados Entities to ProLogis and/or its Affiliates, all such amounts shall be
deemed and treated for all purposes as having been fully paid and discharged or
alternatively, all such amounts shall be capitalized by the relevant Barbados Entities into
new shares to be issued to RECO or its Affiliates.
	 
	2.5	 	Limitations not to Apply
	 
	 	 	For the avoidance of doubt, all and any claims under or pursuant to this Supplemental
Agreement (including without limitation any indemnification claim under Clause 7C.2) shall
not be subject to the restrictions and limitations set out in Clause 8.8 of the Agreement.
	 
	3.	 	Confirmation and Incorporation
	 
	3.1	 	Except to the extent expressly amended by the provisions of this Supplemental Agreement, the
terms and conditions of the Agreement are hereby confirmed and shall remain in full force and
effect.
	 
	3.2	 	The Agreement and this Supplemental Agreement shall be read and construed as one document and
this Supplemental Agreement shall be considered to be part of the Agreement and, without
prejudice to the generality of the foregoing but save as otherwise provided in this
Supplemental Agreement, where the context so allows, all references in the Agreement to “this
Agreement”, “hereof”, “herein”, “herewith”, “hereunder” and words of similar, shall be read
and construed as references to the Agreement as amended, modified or supplemented by this
Supplemental Agreement.
	 
	4.	 	Third Party Rights
	 
	 	 	Save as provided in Clause 2.1.3, a person who is not a party to this Supplemental Agreement
has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to
enforce any term of this Supplemental Agreement.
	 
	5.	 	Counterparts
	 
	 	 	This Supplemental Agreement may be entered into in any number of counterparts, all of which
taken together shall constitute one and the same instrument. Either Party may enter into
this Supplemental Agreement by executing any such counterpart.
	 
	6.	 	Governing Law and Arbitration
	 
	6.1	 	This Supplemental Agreement shall be governed by and construed in accordance with the laws of
Singapore.






	 	6.1.1	 	Any dispute, controversy or claim arising out of or relating to this
Supplemental Agreement, or the breach, termination or invalidity thereof (a “Dispute”),
shall be settled by arbitration administered by the Court of Arbitration of the
International Chamber of Commerce (“ICC”) in accordance with the Rules of Arbitration
of the ICC as presently in force. The Parties agree that:






	 	(i)	 	the number of arbitrators shall be three, with one arbitrator
to be appointed by each Party and the third presiding arbitrator to be of a
nationality and/or




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	 	 	 	residency other than Singapore, Japan, the United States of America or the PRC;
	 
	 	(ii)	 	the place of arbitration shall be Hong Kong; and
	 
	 	(iii)	 	the language to be used in the arbitral proceedings shall be English.






	 	6.1.2	 	The Parties agree that the documents which start any proceedings in respect of
a Dispute and any other documents required to be served in relation to those
proceedings must be served personally on the Parties at their registered offices. This
Clause 6.1 applies to all such proceedings wherever started.






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In witness whereof this Agreement has been entered into on the day and year first above written.




	 	 	 	 	 	 	 	 	 
	SIGNED by Edward S. Nekritz
	 	 	 	ü
ý
þ	 	 	 	 
	 
	 	 	 	 	 	 	 
	for and on behalf of
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	ProLogis

	 	 	 	 	/s/ Edward S. Nekritz
 

	 	 
	 
	 	 	 	 	 	 	 
	in the presence of:
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Michael T. Blair
 

Witness’s signature

	 	 	 	 	 	 	 	 
	Name: Michael T. Blair
	 	 	 	 	 	 	 	 
	Address: 71 South Wacker Drive
	 	 	 	 	 	 	 	 
	               Chicago, Illinois 60606
	 	 	 	 	 	 	 	 
	Occupation: Lawyer
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by Lee Kok Sun
	 	 	 	ü
ý
þ	 	 	 	 
	 
	 	 	 	 	 	 	 
	for and on behalf of
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	RECO China Logistics Pte Ltd

	 	 	 	 	/s/ Lee Kok Sun
 

	 	 
	 
	 	 	 	 	 	 	 
	in the presence of:
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Richard Young
 

Witness’s signature

	 	 	 	 	 	 	 	 
	Name: Richard Young
	 	 	 	 	 	 	 	 
	Address: One Marina Boulevard #28-00
	 	 	 	 	 	 	 	 
	               Singapore 018989
	 	 	 	 	 	 	 	 
	Occupation: Lawyer
	 	 	 	 	 	 	 	 







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