exv10w1



 






Exhibit 10.1




Execution Copy




REGISTRATION RIGHTS AGREEMENT




by and among




PROLOGIS




and




Banc of America Securities LLC

Citigroup Global Markets Inc.

J.P. Morgan Securities Inc.




Dated as of November 2, 2005




 









 





REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (this “Agreement”) is made and entered into as of November
2, 2005, by and among ProLogis, a Maryland real estate investment trust (the “Company”) and Banc of
America Securities LLC, Citigroup Global Markets Inc.and J.P. Morgan Securities Inc., as
representatives of the initial purchasers (each an “Initial Purchaser” and, collectively, the
“Initial Purchasers”), pursuant to the Purchase Agreement (as defined below) each of whom has
agreed to purchase the Company’s 5.250% Notes due 2010 (the “2010 Notes”) and 5.625% Notes due 2015
(the “2015 Notes” and, together with the 2010 Notes, the “Initial Notes”) pursuant to the Purchase
Agreement (as defined below).




          This Agreement is made pursuant to the Purchase Agreement, dated as of October 26, 2005 (the
“Purchase Agreement”), by and among the Company and the Initial Purchasers (i) for the benefit of
the Initial Purchasers and (ii) for the benefit of the holders from time to time of the Notes
(including each Initial Purchaser). In order to induce the Initial Purchasers to purchase the
Initial Notes, the Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(l) of the Purchase Agreement.




          The parties hereby agree as follows:




          SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:




          Broker-Dealer: Any broker or dealer registered under the Exchange Act.




          Closing Date: The date of this Agreement.




          Commission: The Securities and Exchange Commission.




          Consummate: A Registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping
of the Exchange Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture of
each series of Exchange Notes in the same aggregate principal amount as the aggregate principal
amount of the applicable series of Initial Notes that were tendered by Holders thereof pursuant to
the Exchange Offer.




          Effectiveness Target Date: As defined in Section 5.




          Exchange Act: The Securities Exchange Act of 1934, as amended.




          Exchange Notes: The 5.250% Notes due 2010 and the 5.625% Notes due 2015 of the same series
under the Indenture as the applicable series of Initial Notes, to be issued to Holders in exchange
for Transfer Restricted Securities pursuant to this Agreement.




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          Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Notes pursuant to a Registration Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.




          Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.




          Holders: As defined in Section 2(b) hereof.




          Indemnified Holder: As defined in Section 8(a) hereof.




          Indenture: The Indenture, dated as of March 1, 1995, among the Company (formerly Security
Capital Industrial Trust) and U.S. Bank National Association (as successor in interest to State
Street Bank and Trust Company), as trustee (the “Trustee”), pursuant to which the Notes are to be
issued, as such Indenture has been or may be amended or supplemented from time to time in
accordance with the terms thereof.




          Initial Purchaser: As defined in the preamble hereto.




          Initial Notes: The 5.250% Notes due 2010 and 5.625% Notes due 2015, of the same series under
the Indenture as the applicable series of Exchange Notes, for so long as such securities constitute
Transfer Restricted Securities.




          Initial Placement: The issuance and sale by the Company of the Initial Notes to the Initial
Purchasers pursuant to the Purchase Agreement.




          Interest Payment Date: As defined in the Indenture and the Notes.




          NASD: National Association of Securities Dealers, Inc.




          Notes: The Initial Notes and the Exchange Notes.




          Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.




          Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.




          Registration Default: As defined in Section 5 hereof.




          Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Notes pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included




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therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.




          Securities Act: The Securities Act of 1933, as amended.




          Shelf Filing Deadline: As defined in Section 4 hereof.




          Shelf Registration Statement: As defined in Section 4 hereof.




          Trust Indenture Act: The Trust Indenture Act of 1939, as amended.




          Transfer Restricted Securities: Each Note, until the earliest to occur of (a) the date on
which such Note is exchanged in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of the Securities Act,
(b) the date on which such Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement or (c) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Securities Act or disposed of by a
Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein).




          Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.




          SECTION 2. Securities Subject to this Agreement.




          (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.




          (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.




          SECTION 3. Registered Exchange Offer.




          (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied with), the Company
shall (i) cause to be filed with the Commission as soon as practicable after
the Closing Date, but in no event later than 180 days after the Closing Date, a Registration
Statement under the Securities Act relating to the Exchange Notes and the Exchange Offer, (ii) use
its reasonable best efforts to cause such Registration Statement to become effective at the
earliest practicable time, but in no event later than 270 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under
the Securities Act and (C) cause all necessary filings in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange




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Offer shall be on the
appropriate form permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Notes held by Broker-Dealers as
contemplated by Section 3(c) below.




          (b) The Company shall cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 30 days after the date
notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No securities other than the
Notes shall be included in the Exchange Offer Registration Statement. The Company shall use its
best efforts to cause the Exchange Offer to be Consummated on the earliest practicable date after
the Exchange Offer Registration Statement has become effective, but in no event later than 310 days
after the Closing Date.




          (c) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial Notes that are Transfer Restricted Securities and that were acquired for its own account as
a result of market-making activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company), may exchange such Initial Notes pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning
of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such
“Plan of Distribution” section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant
thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the
amount of Notes held by any such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.




          The Company shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period ending on the earlier of (i) 180 days from the date on
which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or
other trading activities.




          The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.




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          SECTION 4. Shelf Registration.




          (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a)
below have been complied with), (ii) for any reason the Exchange Offer is not Consummated within
310 days after the Closing Date, or (iii) with respect to any Holder of Transfer Restricted
Securities (A) such Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering or making available a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Notes
acquired directly from the Company or one of its affiliates, then, upon such Holder’s request, the
Company shall:





     (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to the 60th day
after the earlier to occur of (1) the date on which the Company determines that it can not,
whether pursuant to law of Commission policy, file the Exchange Offer Registration
Statement, (2) the 310th day after the Closing Date if the Company has not
consummated the Exchange Offer and (3) the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by clause (iii) above, but in no
event earlier than the 180th day after the Closing Date (such earlier date being
the “Shelf Filing Deadline”), which Shelf Registration Statement shall provide for resales
of all Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and




     (y) use its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 150th day after the Shelf
Filing Deadline, but in no event earlier than the 270th day after the Closing
Date.



          The Company shall use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions of Sections 6(b) and
(c) hereof to the extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the Securities Act and
the policies, rules and regulations of the Commission as announced from time to time, for a period
of at least two years following the Closing Date (or if Rule 144(k) under the Securities Act is
amended to provide a shorter restrictive period, such shorter period, or when all the Notes covered
by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement).




          (b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 business days after




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receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.




          SECTION 5. Additional Interest. If (i) any of the Registration Statements required by this
Agreement are not filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any of such Registration Statements have not been declared effective by the
Commission on or prior to the date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated within 310 days of
the Closing Date or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared effective (each such
event referred to in clauses (i) through (iv), a “Registration Default”), the Company hereby agrees
that the interest rate borne by the Transfer Restricted Securities shall be increased by 0.25% per
annum during the 90-day period immediately following the occurrence of any Registration Default and
shall increase by 0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such increase exceed 0.50% per annum. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the interest rate borne by the relevant
Transfer Restricted Securities will be reduced to the original interest rate borne by such Transfer
Restricted Securities; provided, however, that, if after any such reduction in interest rate, a
different Registration Default occurs, the interest rate borne by the relevant Transfer Restricted
Securities shall again be increased pursuant to the foregoing provisions.




          All obligations of the Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with respect to such Note
shall have been satisfied in full.




          SECTION 6. Registration Procedures.




          (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company
shall comply with all of the provisions of Section 6(c) below, shall use its reasonable best
efforts to effect such exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and shall comply with all
of the following provisions:





          (i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, the Company hereby agrees to seek
a no-action letter or other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Initial Notes. The Company hereby agrees to pursue
the issuance of such a decision, but shall not be required to take unreasonable action to
effect a change of Commission policy. The



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Company hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver to the staff of the
Commission an analysis prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursue a favorable resolution by the Commission staff of such submission.




          (ii) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company’s preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on the date of this Agreement rely
on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in
the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (which may include any no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of Regulation S-K if
the resales are of Exchange Notes obtained by such Holder in exchange for Initial Notes
acquired by such Holder directly from the Company.



          (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 6(c) below and shall use its reasonable
best efforts to effect such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution thereof,
and pursuant thereto the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.




          (c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Notes by Broker-Dealers), the Company shall:





          (i) use its reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period



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specified in Section
3 or 4 of this Agreement, as applicable; upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its reasonable best efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;




          (ii) prepare and file with the Commission such amendments and post-effective amendments
to the Registration Statement as may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;




          (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested
by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the
happening of any event of which the Company is aware that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration Statement in order to
make the statements therein not misleading or in the Prospectus in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;



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          (iv) furnish without charge to each of the Initial Purchasers, each selling Holder
named in any Registration Statement, and each of the underwriter(s), if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus included therein
or any amendments or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such Registration
Statement), and shall promptly incorporate such information as the underwriter(s), if any,
and the Holders shall reasonably request to be included therein concerning such
underwriter(s) or Holders or the distribution of such Holders’ securities;




          (v) promptly following the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide or make available copies of
such document to the Initial Purchasers, each selling Holder named in any Registration
Statement, and to the underwriter(s), if any;




          (vi) make available at reasonable times for inspection by the Initial Purchasers, any
managing underwriter participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such Initial Purchasers or any of the
underwriter(s), all financial and other records, pertinent corporate documents and
properties of the Company and cause the Company’s officers, trustees and employees to supply
all information reasonably requested by any such Holder, underwriter, attorney or accountant
in connection with such Registration Statement subsequent to the filing thereof and prior to
its effectiveness and cause the Company’s officers and employees available for discussion of
such documents and other customary diligence matters;




          (vii) if requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to
be sold in such offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;




          (viii) furnish to each selling Holder and each of the underwriter(s), if any, without
charge, at least one copy of the Registration Statement, as first filed with the Commission,
and of each amendment thereto, including financial statements and schedules, all documents
incorporated by reference therein and all exhibits (including exhibits incorporated therein
by reference);




          (ix) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the



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Company hereby
consents to the use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection with the offering and
the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;




          (x) enter into such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement, all to such extent as
reasonably may be requested by any Initial Purchaser or by any Holder of Transfer Restricted
Securities or underwriter in connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten Registration, the
Company shall:




          (A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they reasonably may request and
as are customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration Statement:




          (1) a certificate, dated the date of Consummation of the Exchange Offer
or the date of effectiveness of the Shelf Registration Statement, as the
case may be, signed by (y) the chief executive officer, chief operating
officer or any managing directors and (z) a principal financial or
accounting officer of the Company, confirming, as of the date thereof, the
matters set forth in paragraphs (h)(i), (ii) and (iii) of Section 5 of the
Purchase Agreement and such other matters as such parties may reasonably
request;




          (2) opinions, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company, covering the matters set forth in
paragraphs (c) and (d) of Section 5 of the Purchase
Agreement and such other matter as such parties may reasonably request;
and




          (3) a customary comfort letter, dated as of the date of Consummation of
the Exchange Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company’s independent accountants
and, if applicable, the independent accounts of any person that the Company
has acquired whose financial statements or other financial information is
included or incorporated by reference in the Prospectus, in the customary
form and covering matters of the type customarily covered in comfort letters
by underwriters in connection with primary underwritten offerings;



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          (B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and




          (C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company pursuant to this clause (xi), if any.




     If at any time the representations and warranties of the Company contemplated in clause
(A)(1) above cease to be true and correct, the Company shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;




          (xi) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s)
may request and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;




          (xii) issue, upon the request of any Holder of Initial Notes covered by the Exchange
Offer Registration Statement, Exchange Notes of the applicable series, having an aggregate
principal amount equal to the aggregate principal amount of Initial Notes surrendered to the
Company by such Holder in exchange therefor; such Exchange Notes to be registered in the
name of such Holder; in return, the Initial Notes held by such Holder shall be surrendered
to the Company for cancellation;




          (xiii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities covered by the Shelf Registration Statement to be sold and free of any
restrictive legends; and enable such Transfer Restricted Securities covered by the Shelf
Registration Statement to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);




          (xiv) use its reasonable best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Holder or Holders
thereof or the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii) above;



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          (xv) if any fact or event contemplated by clause (c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of the
circumstances under which they are mad, not misleading;




          (xvi) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of the Registration Statement and provide the Trustee under the Indenture
with printed certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;




          (xvii) cooperate and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or authorities as
may be necessary to enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;




          (xviii) otherwise use its reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company’s first fiscal quarter commencing after the
effective date of the Registration Statement; and




          (xix) cause all Transfer Restricted Securities covered by the Registration Statement to
be listed on each securities exchange on which similar securities issued by the Company are
then listed if requested by the Holders of a majority in aggregate principal amount of
Initial Notes or the managing underwriter(s), if any.



          Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised
in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Transfer Restricted




12









 








Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice; however, no such extension shall be taken into account in determining whether
Additional Interest is due pursuant to Section 5 hereof or the amount of such Additional Interest,
it being agreed that the Company’s option to suspend use of a Registration Statement pursuant to
this paragraph shall be treated as a Registration Default for purposes of Section 5.




          SECTION 7. Registration Expenses.




          (a) All expenses incident to the Company’s performance of or compliance with this Agreement
will be borne by the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the reasonable fees and
expenses of any “qualified independent underwriter” and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and disbursements of
counsel for the Company and, subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing the Exchange Notes on a
national securities exchange or automated quotation system pursuant to the requirements thereof;
and (vi) all fees and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or incident to such
performance).




          The Company will, in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of any Person, including
special experts, retained by the Company.




          (b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Shearman & Sterling LLP or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.




          SECTION 8. Indemnification.





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          (a) The Company agrees to indemnify and hold harmless (i) each Holder and (ii) each person, if
any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this clause (ii) being hereinafter
referred to as a “controlling person”) and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the
fullest extent lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or
defending any claim or action, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition to any liability
which the Company may otherwise have.




          In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company in writing
(provided, that the failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by
the Company (regardless of whether it is ultimately determined that an Indemnified Holder is not
entitled to indemnification hereunder). The Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified Holders, which firm
shall be designated by the Indemnified Holders. The Company shall be liable for any settlement of
any such action or proceeding effected with the Company’s prior written consent, which consent
shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or compromise or consent to
the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination (i) includes an unconditional release of each Indemnified Holder
from all liability arising out of such action,





14









 








claim, litigation or proceeding, and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.




          (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and its trustees, officers of the Company who sign a
Registration Statement, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders, but only with respect to claims and
actions based on information relating to such Holder furnished in writing by such Holder expressly
for use in any Registration Statement. In case any action or proceeding shall be brought against
the Company or its trustees or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have
the rights and duties given the Company and the Company or its trustees or officers or such
controlling person shall have the rights and duties given to each Holder by the preceding
paragraph.




          (c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or Section 8(b) hereof (other than by reason of exceptions provided in
those Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or
expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, from the Initial Placement (which in the case of the Company shall be
deemed to be equal to the total net proceeds (before deducting expenses) from the Initial
Placement), or if such allocation is not permitted by applicable law, the relative fault of the
Company on the one hand, and of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of the Company on the one
hand and of the Indemnified Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or by the
Indemnified Holder and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred
to above shall be deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.




          The Company and each Holder of Transfer Restricted Securities agree that it would not be just
and equitable if contribution pursuant to this Section 8(c) were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with




15









 








investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8, none of the
Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total price at which the Notes sold by such Holder
were offered exceeds the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Initial Notes held by each of the
Holders hereunder and not joint.




          SECTION 9. Rule 144A. The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.




          SECTION 10. Participation In Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Securities on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.




          SECTION 11. Selection Of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in such offering;
provided that such investment bankers and managers must be reasonably satisfactory to the Company.




          SECTION 12. Miscellaneous.




          (a) Remedies. The Company hereby agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific performance that a remedy at law
would be adequate.




          (b) No Inconsistent Agreements. The Company will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company’s securities under any agreement in effect on
the date hereof.





16









 








          (c) Adjustments Affecting the Notes. The Company will not take any action, or permit any
change to occur, with respect to the Notes that would materially and adversely affect the ability
of the Holders to Consummate any Exchange Offer.




          (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided that, with respect
to any matter that directly or indirectly affects the rights of the Initial Purchasers hereunder,
the Company shall obtain the written consent of the Initial Purchasers.




          (e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:





          (i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and


(ii) if to the Company:


ProLogis

14100 East 35th Place

Aurora, CO 80011

Facsimile No.: (303) 375-8581

Attention: Edward S. Nekritz


With a copy to:


Mayer, Brown, Rowe & Maw LLP

71 South Wacker Drive

Chicago, IL 60606

Facsimile No.: (312) 706-8108

Attention: Mike Blair


(iii) if to the Initial Purchasers:


Banc of America Securities LLC

40 West 57th Street

NY1-040-27-01

New York, New York 10019

Facsimile: (646) 313-4803

Attention: High Grade Transaction Management/Legal





17









 







With a copy to:


Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022

Facsimile: (212) 848-7179

Attention: Michael Schiavone, Esq.



          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.




          Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.




          (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.




          (g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the
same agreement.




          (h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.




          (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.




          (j) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.




          (k) Entire Agreement. This Agreement together with the other Operative Documents (as defined
in the Purchase Agreement) is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein with respect to the
registration rights granted by the Company with respect




18









 








to the Transfer Restricted Securities.
This Agreement supersedes all prior agreements and understandings between the parties with respect
to such subject matter.




[SIGNATURE PAGES FOLLOW]




19









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	 	PROLOGIS
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Edward S. Nekritz
	 

	 	 	 	 
	 

	 	 	 	  Name:   Edward S. Nekritz
	 

	 	 	 	  Title:     Managing Director






          The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:




BANC OF AMERICA SECURITIES LLC

CITIGROUP GLOBAL MARKETS INC.

J.P. MORGAN SECURITIES INC.

          as Representatives of the

          Initial Purchasers




By: Banc of America Securities LLC




	 	 	 	 	 
	By:

	 	/s/ Peter J. Carbone	 	 
	 

	 	 

  Name:   Peter J. Carbone
	 	 
	 

	 	  Title:    Vice President