exv4w1






Exhibit 4.1




EIGHTH SUPPLEMENTAL INDENTURE




     EIGHTH SUPPLEMENTAL INDENTURE, dated as of August 14, 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 4545 Airport Way, Denver, Colorado 80239 (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, 100 Wall
Street, Suite 1600, New York, New York 10005, as successor Trustee (in such capacity, the
“Trustee”) under the Base Indenture (defined below).



RECITALS OF THE COMPANY




     The Company and the Trustee have heretofore entered into an Indenture, dated as of March 1,
1995 (the “Original Indenture”), as amended by a First Supplemental Indenture dated as of February
9, 2005, a Second Supplemental Indenture(the “Second Supplemental Indenture”), dated as of
November 2, 2005, 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 and a Seventh
Supplemental Indenture (the “Seventh Supplemental Indenture”), dated as of May 7, 2008 (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 (the
“Securities”).



     Section 901(5) of the Base Indenture provides for the Company and the Trustee to enter into an
indenture supplemental to the Base Indenture to change or eliminate any of the provisions of the
Base Indenture, provided that any such change or elimination becomes effective only when there is
no Security Outstanding of any series created prior to the execution of such indenture supplemental
which is entitled to the benefit of such provision.



     The Board of Trustees of the Company has duly adopted resolutions authorizing the Company to
execute and deliver this Supplemental Indenture.



     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 covenant and agree, for the equal and proportionate benefit
of all Holders of Securities issued on or after the date of this Supplemental Indenture, as
follows:



 









 





ARTICLE ONE

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 Sections 901(2) and 901(5) 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, for the benefit of
the Holders of Securities issued on or after the date of this Supplemental Indenture,
unless otherwise provided in the Officers’ Certificate or supplemental indenture
authorizing any series of such Securities:






     “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 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



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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.




     “GAAP” means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to



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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



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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 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.



ARTICLE TWO

COVENANTS AND DEFAULTS




     Section 2.1. Limitations on Incurrence of Debt. Pursuant to Section 901(5) of the
Base Indenture, Section 1004 of the Base Indenture is hereby amended and restated in its entirety
as follows for the benefit of the Holders of Securities issued on or after the date of this
Supplemental Indenture (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 Second Supplemental Indenture and
Section 2.1 of the Seventh Supplemental Indenture), unless otherwise provided in the Officers’
Certificate or supplemental indenture authorizing any series of such Securities:




     (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 the assumption that (i)



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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



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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 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 901(5) of the Base Indenture,
clauses (5) and (6) of Section 501 of the Base Indenture are hereby amended for the benefit of the
Holders of Securities issued on or after the date of this Supplemental Indenture, unless otherwise
provided in the Officers’ Certificate or supplemental indenture authorizing any series of such
Securities, to provide that references to $10,000,000 contained in clauses (5) and (6) of Section
501 of the Indenture are amended to be $50,000,000.



ARTICLE THREE

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.



     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.



     Section 3.4. This Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.



     Section 3.5. 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.



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     Section 3.6. The Trustee shall not have any responsibility for the Recitals of the Company
hereto, which Recitals are made by the Company alone, or for the validity or sufficiency of this
Supplemental Indenture.



[Remainder of page intentionally left blank]




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IN WITNESS WHEREOF, the parties hereto have caused this Eighth 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/ Edward S. Nekritz	 	 
	 

	 	 	 	 

Edward S. Nekritz
	 	 
	 

	 	 	 	General Counsel and Secretary	 	 






	 	 	 	 	 
	[SEAL]	 	 
	 
	 	 	 	 
	Attest:	 	 
	 
	 	 	 	 
	By:
	 	/s/ David W. Grawemeyer	 	 
	 

	 	 

David W. Grawemeyer
	 	 
	 

	 	Assistant Secretary	 	 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee as
aforesaid	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ U.S. Bank National Association	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 
	Attest:	 	 
	 
	 	 	 	 
	By:

	 	/s/ U.S. Bank National Association
 

	 	 







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