EXHIBIT 1.1
CONTROLLED EQUITY OFFERING(SM)
SALES AGREEMENT
July 23, 2004
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs/Ladies:
ProLogis, a Maryland statutory real estate investment trust (the
"Company"), confirms its agreement ("Agreement") with Cantor Xxxxxxxxxx & Co.
("CF&Co"), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time
during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it will issue and sell through CF&Co, acting as agent and/or
principal, 7,400,000 common shares of beneficial interest, par value $0.01 per
share (the "Shares"), of the Company. Notwithstanding anything to the contrary
contained herein, the parties hereto agree that the Company shall have the sole
responsibility to monitor the number and aggregate sale price of Shares issued
and sold under this Agreement and to issue and sell Shares within such
limitations, and CF&Co shall have no responsibility in connection therewith. The
issuance and sale of Shares through CF&Co will be effected pursuant to a
registration statement on Form S-3 (File No. 333-105717) (the "Registration
Statement") filed by the Company and declared effective by the Securities and
Exchange Commission (the "Commission").
2. Placements. Each time that the Company wishes to issue and sell Shares
hereunder (each, a "Placement"), it will notify CF&Co of the proposed terms of
such Placement. If CF&Co wishes to accept such proposed terms (which it may
decline to do for any reason in its sole discretion) or, following discussions
with the Company, wishes to accept amended terms, CF&Co will issue to the
Company a written notice setting forth the terms that CF&Co is willing to
accept, including without limitation the number of Shares ("Placement Shares")
to be issued, the manner(s) in which sales are to be made, the date or dates on
which such sales are anticipated to be made, any minimum price below which sales
may not be made, and the capacity in which CF&Co may act in selling Shares
hereunder (as principal, agent or both) (a "Placement Notice"), the form of
which is attached hereto as Schedule 2. The amount of compensation to be paid by
the Company to CF&Co shall be two and one-quarter percent (2.25%) of gross
proceeds of the sale of such Placement Shares. The terms set forth in a
Placement Notice will not be binding on the Company or CF&Co unless and until
the Company delivers written notice of its acceptance of all of the terms of
such Placement Notice (an "Acceptance"); provided, however, that neither the
Company nor CF&Co will be bound by the terms of a Placement Notice unless the
Company
delivers to CF&Co an Acceptance with respect thereto prior to 4:30 p.m. (New
York time) on the Business Day following the Business Day on which such
Placement Notice is delivered to the Company. It is expressly acknowledged and
agreed that neither the Company nor CF&Co will have any obligation whatsoever
with respect to a Placement or any Placement Shares unless and until CF&Co
delivers a Placement Notice to the Company, and then only upon the terms
specified therein and herein. In the event of a conflict between the terms of
this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions
of this Agreement, upon the Acceptance of a Placement Notice, and unless the
sale of the Placement Shares described therein has been suspended or otherwise
terminated in accordance with the terms of this Agreement, CF&Co will use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. CF&Co will
provide written confirmation to the Company no later than the opening of the
Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company. CF&Co may
sell any Placement Shares in privately negotiated transactions and/or any other
method permitted by law, including sales made directly on the New York Stock
Exchange, the then existing trading market for the Shares or sales made to or
through a market maker or through an electronic communications network, or in
any other manner that may be deemed to be an "at the market" offering as defined
in Rule 415 of the Act of 1933, as amended and the rule and regulations
promulgated thereunder (the "Act"). The Company acknowledges and agrees that (i)
there can be no assurance that CF&Co will be successful in selling Placement
Shares, and (ii) CF&Co will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason
other than a failure by CF&Co to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof, "Trading Day"
means any day on which Shares are purchased and sold on the principal market on
which the Shares are listed or quoted.
4. Suspension of Sales. The Company or CF&Co may, upon notice to the other
party in writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against CF&Co
unless it is made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended in writing from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Business Day (or such other day as is industry practice for
regular-way trading) following the date on which such sales are made (each a
"Settlement Date"). The amount of proceeds to be delivered to the Company on a
Settlement Date against the receipt of the Placement Shares sold ("Net
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Proceeds") will be equal to the aggregate sales price at which such Placement
Shares were sold, after deduction for (i) CF&Co's commission, discount, or other
compensation for such sales payable by the Company in accordance with Section 2,
(ii) any other amounts due and payable by the Company to CF&Co hereunder and
(iii) any transaction fees imposed by the Commission pursuant to Section 31 of
the Securities Exchange Act of 1934, as amended and the rules and regulations
thereunder (the "Exchange Act"), in respect of such sale.
(b) Delivery of Shares. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting CF&Co's or its designee's account at The
Depository Trust Company through its Deposit Withdrawal Agent Commission System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Placement Shares, which in all cases shall be
freely tradeable, transferable, registered shares in good deliverable form,
CF&Co will deliver the related Net Proceeds in immediately available funds
delivered to an account designated by the Company prior to the Settlement Date.
If the Company defaults in its obligation to deliver Placement Shares on a
Settlement Date, the Company agrees that in addition to and in no way limiting
the rights and obligations set forth in Section 9(a) hereto, it will (i) hold
CF&Co harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company and (ii) pay to CF&Co any commission, discount, or other
compensation to which it would otherwise have been entitled absent such default.
6. Representations and Warranties of the Company. The Company represents
and warrants to CF&Co as follows:
(a) The Company meets the requirements for the use of Form S-3 under
the Act. The Registration Statement has been declared effective by the
Commission under the Act. The Company has complied to the Commission's
satisfaction with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
The form of prospectus contained in the registration statement (as
amended or supplemented the "Prospectus") when filed complied when so filed in
all material respects with the Act and the Prospectus delivered to CF&Co for use
in connection with the offer and sale of the Shares will, at the time of such
delivery, be identical to any copies filed by electronic transmission pursuant
to the Commission's Electronic Data Gathering, Analysis and Retrieval System
("XXXXX") (except as may be permitted by Regulation S-T under the Act). Each of
the Registration Statement and any post-effective amendment thereto (including
the filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")), at the time it became effective
and at all subsequent times, complied and will comply in all material respects
with the Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus as of its date and
at all subsequent times, did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances
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under which they were made, not misleading. The representations and warranties
set forth in the two immediately preceding sentences do not apply to that part
of the Registration Statement which constitutes the Statement of Eligibility and
Qualification ("Form T-1") under the Trust Indenture Act of 1939, as amended and
the rules and regulations promulgated thereunder, of the Trustee and statements
in or omissions from the Registration Statement, including any post-effective
amendment to the Registration Statement, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information
relating to CF&Co furnished to the Company in writing by the CF&Co expressly for
use therein. There are no contracts or other documents required to be described
in the Prospectus or to be filed as exhibits to the Registration Statement which
have not been described or filed as required.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the respective
times they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act and,
when read together with the other information in the Prospectus, at the date of
the Prospectus and at the Settlement Date (as defined herein), did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(c) The Company has not distributed and will not distribute, prior to
the later of the applicable Settlement Date and the completion of CF&Co'
distribution of the Shares, any offering material in connection with the
issuance and sale of the Shares other than the Prospectus or the Registration
Statement.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Shares have been duly authorized and, when issued, delivered
and paid for pursuant to this Agreement, will be validly issued and fully paid
and non-assessable, free and clear of all Encumbrances; the shares of beneficial
interest of the Company, including the Shares, conform to the description
thereof contained in the Registration Statement and the Shares will conform to
the description thereof contained in the Prospectus as amended or supplemented.
Neither the shareholders of the Company, nor any other person or entity have any
preemptive rights or rights of first refusal with respect to the Shares or other
rights to purchase or receive any of the Shares or any other securities or
assets of the Company, and no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any shares of
beneficial interest or other securities or assets of the Company upon the
issuance or sale of the Shares.
(f) Except as otherwise disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Prospectus: (i) there
has been no material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Company and
its subsidiaries, considered as one entity (any such change is called a
"Material Adverse Change"); (ii) the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business or entered into any
material transaction or agreement not in the ordinary course of business; and
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(iii) except for regularly quarterly dividends or distributions on the common
stock or shares or preferred stock or shares in amounts per share that are
consistent with past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends paid to the
Company or other subsidiaries, any of its subsidiaries on any class of capital
stock or shares or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock or shares.
(g) Xxxxxx Xxxxxxxx LLP, who have expressed their opinion with respect
to the audited financial statements for the fiscal year ended December 31, 2001
and supporting schedules incorporated by reference in the Registration Statement
and the Prospectus, were, at the time each such opinion was issued, independent
public or certified public accountants within the meaning of Regulation S-X
under the Act and the Exchange Act. KPMG LLP, who have expressed their opinion
with respect to the audited financial statements for the fiscal years ended
December 31, 2002 and 2003 and supporting schedules and have conducted a review
in accordance with Statement of Auditing Standards No. 100 with respect to the
unaudited financial statements for the period ended March 31, 2004 incorporated
by reference in the Registration Statement and the Prospectus, are independent
public or certified public accountants within the meaning of Regulation S-X
under the Act and the Exchange Act.
(h) The financial statements, together with the related notes thereto,
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The supporting schedules
included in the Registration Statement present fairly the information required
to be stated therein. Such financial statements and supporting schedules have
been prepared in conformity with generally accepted accounting principles as
applied in the United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are required to
be included in the Registration Statement.
(i) The Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the State of
Maryland and has the trust power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under each of this Agreement. The Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a Material Adverse Change.
(j) Each subsidiary and joint venture of the Company listed on Schedule
1 (collectively, the "Significant Subsidiaries") has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation, trust,
limited liability company or partnership and (except as to any general
partnership) in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has the power (corporate
or other) and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. Each Significant Subsidiary is duly
qualified as a foreign corporation, trust, limited liability company or
partnership to transact business and is in good standing in each jurisdiction
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in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change. All of
the issued and outstanding capital stock and other equity interests of each
Significant Subsidiary have been duly authorized and validly issued, and are
fully paid and (except for general partnership interests and directors'
qualifying shares) nonassessable; all shares of outstanding capital stock and
other equity interests of each Significant Subsidiary held by the Company,
directly or through subsidiaries, are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim, except for the pledge of
such capital stock or other interests to secure borrowings of the Company or one
of its wholly owned subsidiaries. The subsidiaries of the Company listed on
Schedule 1 are the only subsidiaries of the Company that are material to the
condition, financial or otherwise, or the earnings, business, operations or
prospects of the Company and its subsidiaries, considered as one entity, and
include all subsidiaries of the Company which meet the criteria in the
definition of "significant subsidiary" pursuant to Rule 1-02(w) of Regulation
S-X under the Act. The corporations, trusts, limited liability companies,
partnerships and other entities listed on Schedule 1 are considered to be
subsidiaries of the Company solely for purposes of this Agreement.
(k) Neither the Company nor any of its subsidiaries is in violation of
its declaration of trust (or charter or by-laws or other similar constitutive
documents), except, in the case of subsidiaries of the Company, for such
violations as would not, individually or in the aggregate, result in a Material
Adverse Change. Neither the Company nor any of its subsidiaries is in default
(or, with the giving of notice or lapse of time or both, would be in default)
("Default") under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this Agreement, and the
issuance and delivery of the Shares, and consummation of the transactions
contemplated hereby and by the Prospectus (i) have been duly authorized by all
necessary trust action and will not result in any violation of the provisions of
the declaration of trust (or charter or by-laws or other similar constitutive
documents) of the Company or any subsidiary, except, in the case of subsidiaries
of the Company, for such violations as would not, individually or in the
aggregate, result in a Material Adverse Change, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such conflicts, breaches,
Defaults, liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary, except for such violation as
would not, individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or registration
or filing with, any court or other governmental or regulatory authority or
agency, is required for the Company's execution, delivery and performance of
this Agreement, or the issuance and delivery of the Shares, or consummation of
the transactions contemplated hereby and by the Prospectus, except such as
6
have been obtained or made by the Company and are in full force and effect under
the Act, applicable state securities or blue sky laws and from the NASD, the
failure of which to obtain would not result in a Material Adverse Change or have
a material adverse effect on the consummation of the transactions contemplated
by this Agreement.
(l) Except as otherwise disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened (i) against or affecting the Company or any of
its subsidiaries, (ii) which has as the subject thereof any officer or director
of, or property owned or leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters, where in any such
case (A) there is a reasonable possibility that such action, suit or proceeding
might be determined adversely to the Company or such subsidiary and (B) any such
action, suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No material
labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the best of the Company's knowledge, is threatened or imminent,
except for such disputes as would not, individually or in the aggregate, result
in a Material Adverse Change.
(m) The Company and its Significant Subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their businesses
as now conducted; and the expected expiration of any of such Intellectual
Property Rights would not result in a Material Adverse Change. Neither the
Company nor any of its Significant Subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change. The Company is not a party to or bound by
any options, licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set forth in the
Prospectus and are not described in all material respects. None of the
technology employed by the Company has been obtained or is being used by the
Company in violation of any contractual obligation binding on the Company or, to
the Company's knowledge, any of its officers, trustees or employees or otherwise
in violation of the rights of any persons, except for such violations as would
not, individually or in the aggregate, result in a Material Adverse Change.
(n) The Company and each subsidiary possess such valid and current
certificates, authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, and neither
the Company nor any subsidiary has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such
certificate, authorization, permit, license, approval, consent or other
authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could result in a Material Adverse
Change.
(o) Except as otherwise disclosed in the Prospectus, the Company and
each of its subsidiaries has good and marketable title to all the properties and
assets reflected as owned in the financial statements referred to in Section
6(h) above (or elsewhere in the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities,
7
claims and other defects, except such as do not materially and adversely affect
the value of such property and do not materially interfere with the use made or
proposed to be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases, with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real property, improvements, equipment or
personal property by the Company or such subsidiary.
(p) The Company and its subsidiaries have filed all material federal,
state and foreign income and franchise tax returns or have properly requested
extensions thereof and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them except as may be being contested in good faith and by
appropriate proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in Section 6(h)
above in respect of all federal, state and foreign income and franchise taxes
for all periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined. With respect to all tax periods in
respect of which the Internal Revenue Service is or will be entitled to any
claim, the Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Internal Revenue Code") and the Company's present and contemplated
organizational ownership, method of operation, assets and income are such that
the Company will continue to meet such requirements; ProLogis Limited
Partnership-I, ProLogis Limited Partnership-II, ProLogis Limited Partnership-III
and ProLogis Limited Partnership-IV are properly treated as partnerships for
federal income tax purposes and not as "associations taxable as corporations."
(q) The Company is not, and after receipt of payment for the Shares
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended and the rules and regulations promulgated
thereunder.
(r) Each of the Company and its subsidiaries taken as a whole carry or
are covered by insurance in such amounts covering such risks as are generally
deemed adequate and customary for their businesses. The Company has no reason to
believe that it or any subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material
Adverse Change.
(s) Neither the Company nor any of its Significant Subsidiaries nor, to
the best of the Company's knowledge, any employee or agent of the Company or any
Significant Subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the Prospectus.
(t) Except as would not, individually or in the aggregate, result in a
Material Adverse Change (i) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign law or regulation relating
to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
8
or subsurface strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, "Materials of
Environmental Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation of the business of
the Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or any
of its subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges that
the Company or any of its subsidiaries is in violation of any Environmental Law;
(ii) there is no claim, action or cause of action filed with a court or
governmental authority with respect to which the Company has received written
notice, no investigation with respect to which the Company has received written
notice, and no written notice by any person or entity alleging potential
liability for investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries, attorneys' fees
or penalties arising out of, based on or resulting from the presence, or release
into the environment, of any Material of Environmental Concern at any location
owned, leased or operated by the Company or any of its subsidiaries, now or in
the past (collectively, "Environmental Claims"), pending or, to the best of the
Company's knowledge, threatened against the Company or any of its subsidiaries
or any person or entity whose liability for any Environmental Claim the Company
or any of its subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the best of the Company's knowledge, there are no
past or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that reasonably
could result in a violation of any Environmental Law or form the basis of a
potential Environmental Claim against the Company or any of its subsidiaries or
against any person or entity whose liability for any Environmental Claim the
Company or any of its subsidiaries has retained or assumed either contractually
or by operation of law.
(u) The Company and its subsidiaries and any "employee benefit plan"
(as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their ERISA Affiliates (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code, of which the
Company or such subsidiary is a member. No "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan," (ii)
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Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B
of the Internal Revenue Code with respect to the excise tax imposed thereunder.
Each "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service and nothing has occurred,
whether by action or failure to act, which is reasonably likely to cause
disqualification of any such employee benefit plan under Section 401(a) of the
Internal Revenue Code.
Any certificate signed by an officer of the Company and delivered to
CF&Co or its counsel shall be deemed to be a representation and warranty by the
Company to CF&Co as to the matters set forth therein.
The Company acknowledges that CF&Co and, for purposes of the opinions
to be delivered pursuant to Section 8 hereof, counsel for the Company, will rely
upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.
7. Covenants of the Company. The Company covenants and agrees with CF&Co
that:
(a) After the date of this Agreement and during the period in which a
prospectus relating to the Shares is required to be delivered by CF&Co under the
Act, the Company will notify CF&Co promptly of the time when any subsequent
amendment to the Registration Statement has been filed with the Commission and
has become effective or any subsequent supplement to the Prospectus has been
filed and of any request by the Commission for any amendment or supplement to
the Registration Statement or Prospectus or for additional information; it will
prepare and file with the Commission, promptly upon CF&Co's reasonable request,
any amendments or supplements to the Registration Statement or Prospectus that,
in CF&Co's opinion, may be necessary or advisable in connection with the
distribution of the Shares by CF&Co (provided, however that the failure of CF&Co
to make such request shall not relieve the Company of any obligation or
liability hereunder, or affect CF&Co's right to rely on the representations and
warranties made by the Company in this Agreement); the Company will not file any
amendment or supplement to the Registration Statement or Prospectus (except for
periodic reports filed with the Commission pursuant to and in accordance with
the Exchange Act) unless a copy thereof has been submitted to CF&Co a reasonable
period of time before the filing and CF&Co has not reasonably and promptly
objected thereto (provided, however, that the failure of CF&Co to make such
objection shall not relieve the Company of any obligation or liability
hereunder, or affect CF&Co's right to rely on the representations and warranties
made by the Company in this Agreement); and the Company will cause each
amendment or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the rules and
regulations under the Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to
the Exchange Act, within the time period prescribed.
(b) The Company will advise CF&Co, promptly after it receives notice or
obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its commercially reasonable
efforts to
10
prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) Within the time during which a prospectus relating to the Shares is
required to be delivered by CF&Co under the Act, the Company will comply with
all requirements imposed upon it by the Act, as from time to time in force, and
will file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify CF&Co to suspend the offering of Shares during such period and
the Company will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its commercially reasonable efforts to cause
the Shares to be listed on the New York Stock Exchange and to qualify the Shares
for sale under the securities laws of such jurisdictions as CF&Co designates and
to continue such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(e) The Company will furnish to CF&Co and its counsel (at the expense
of the Company) copies of the Registration Statement, the Prospectus (including
all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the
Commission during the period in which a prospectus relating to the Shares is
required to be delivered under the Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities
as CF&Co may from time to time reasonably request and, at CF&Co's request, will
also furnish copies of the Prospectus to each exchange or market on which sales
of Shares may be made.
(f) The Company will furnish to CF&Co for a period of two years from
the date of this Agreement such information as reasonably requested by CF&Co
regarding the Company or its Subsidiaries.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the end
of the Company's current fiscal quarter, an earning statement covering a
12-month period that satisfies the provisions of Section 11(a) of the Act and
Rule 158 of the rules and regulations thereunder.
(h) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all expenses incident
to the performance of its obligations hereunder, including, but not limited to,
expenses relating to (i) the preparation,
11
printing and filing of the Registration Statement, of each Prospectus and of
each amendment and supplement thereto, (ii) the preparation, issuance and
delivery of the Shares, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Shares under securities
laws in accordance with the provisions of Section 7(d) of this Agreement,
including filing fees and any reasonable fees or disbursements of counsel for
CF&Co in connection therewith, (v) the printing and delivery to CF&Co of copies
of the Prospectus and any amendments or supplements thereto, and of this
Agreement, and (vi) the fees and expenses incurred in connection with the
listing or qualification of the Shares for trading on the New York Stock
Exchange, (vii) filing fees and expenses, if any, of the Commission and the
NASD.
(i) The Company will use the Net Proceeds as described in the
Prospectus.
(j) Without the written consent of CF&Co, the Company will not,
directly or indirectly, offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Shares of (other than the Shares offered
pursuant to the provisions of this Agreement) or securities convertible into or
exchangeable for Shares, warrants or any rights to purchase or acquire, Shares
during the period beginning on the fifth (5th) Trading Day immediately prior to
the date on which any Acceptance of a Placement Notice is delivered to CF&Co
hereunder and ending on the fifth (5th) Trading Day immediately following the
final Settlement Date with respect to Shares sold pursuant to such Placement
Notice; the Company will not directly or indirectly in any other "at the market"
or continuous equity transaction offer to sell, sell, contract to sell, grant
any option to sell or otherwise dispose of any Shares of (other than the Shares
offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Shares, warrants or any rights to purchase or acquire,
Shares prior to the tenth (10th) Trading Day immediately following the final
Settlement Date with respect to Shares sold pursuant to such Placement Notice;
provided, however, that such restrictions will not be required in connection
with the Company's issuance or sale of Shares pursuant to (i) the 1999 Dividend
Reinvestment and Share Purchase Plan, (ii) the ProLogis 1997 Long Term Incentive
Plan, (iii) the ProLogis Employee Share Purchase Plan, (iv) the ProLogis Share
Option Plan for Outside Trustees, (v) the ProLogis 2000 Share Option Plan for
Outside Trustees, (vi) shares issued to pay the annual retainer to ProLogis
outside trustees and (vii) in connection with the conversion or redemption of
units of limited partnership interest (outstanding on the date hereof and as may
be issued from time to time) of limited partnerships in which the Company or is
directly or indirectly a general partner.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise CF&Co promptly after it shall have
received notice or obtain knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter or other document
provided to CF&Co pursuant to this Agreement.
(l) The Company will cooperate with any due diligence review conducted
by CF&Co or its agents, including, without limitation, providing information and
making available documents and senior corporate officers, as CF&Co may
reasonably request; provided, however, that the Company shall be required to
make available documents and senior corporate officers only (i) at the Company's
principal offices and (ii) during the Company's ordinary business hours.
(m) On the date hereof, on the first Settlement Date following an
amendment of the Registration Statement (including but not limited to the filing
of annual reports, quarterly reports
12
and periodic reports on Form 10-K, Form 10-Q and Form 8-K, respectively) or
supplementing of the Prospectus and on the first Settlement Date occurring in
any calendar month, the Company shall furnish or cause to be furnished to CF&Co
forthwith a certificate dated as of the date hereof or as of such Settlement
Date, as the case may be, in the form attached hereto as Exhibit 8(f) to the
effect that the representations and warranties made by the Company in this
Agreement are true and correct on such date as though made at and as of such
date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) and that
the Company has complied with all of the agreements to be performed by it at or
prior to such date.
(n) On the date hereof and on the first Settlement Date following an
amendment of the Registration Statement (including but not limited to the filing
of annual reports, quarterly reports and periodic reports on Form 10-K, Form
10-Q and Form 8-K, respectively) or supplementing of the Prospectus, the Company
shall furnish or cause to be furnished forthwith to CF&Co and to counsel to
CF&Co a written opinion of independent counsel to the Company ("Company
Counsel") dated as of the date hereof or as of such Settlement Date, as the case
may be, in form and substance satisfactory to CF&Co and its counsel, in
substantially the form attached hereto as Exhibit 8(d), but modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion.
(o) On the date hereof and on the first Settlement Date following the
amendment of the Registration Statement (including but not limited to the filing
of annual reports, quarterly reports and periodic reports on Form 10-K, Form
10-Q and Form 8-K, respectively) or supplementing of the Prospectus, the Company
shall cause its independent accountants reasonably satisfactory to CF&Co,
forthwith to furnish CF&Co letters (the "Comfort Letters"), dated as of the date
hereof or as of such Settlement Date, as the case may be, in form and substance
satisfactory to CF&Co, (i) confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings (the first such
letter, the "Initial Comfort Letter") and (iii) updating the Initial Comfort
Letter with any information which would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
(p) The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares or (ii)
sell, bid for, or purchase the Shares, or pay anyone any compensation for
soliciting purchases of the Shares other than CF&Co; provided, however, the
Company may bid for and purchase shares of beneficial interest of the Company in
accordance with Rule 10b-18 promulgated under the Exchange Act.
13
(q) The Company will use its best efforts to meet the requirements to
qualify as a REIT under the Internal Revenue Code unless the Company's board of
trustees determines by resolution that it is in the best interests of the
Company's shareholders not to so qualify.
(r) The Company acknowledges and agrees that CF&Co has informed the
Company that CF&Co may, to the extent permitted under the Act and the Exchange
Act, purchase and sell Shares for its own account at the same time as Shares are
being sold by the Company pursuant to this Agreement, provided that the Company
shall not be deemed to have authorized or consented to any such purchases or
sales by CF&Co.
8. Conditions to CF&Co's Obligations. The obligations of CF&Co hereunder
with respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein,
to the due performance by the Company of its obligations hereunder, to the
completion by CF&Co of a due diligence review satisfactory to CF&Co in its
reasonable judgment, and to the continuing satisfaction (or waiver by CF&Co in
its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be
available for the resale of (i) all Placement Shares issued pursuant to all
prior Placements and not yet sold by CF&Co and (ii) all Placement Shares
contemplated to be issued by the Placement Notice relating to such Placement.
(b) None of the following events shall have occurred: (i) receipt by
the Company of any request for additional information from the Commission or any
other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any
amendments or supplements to the Registration Statement or the Prospectus; (ii)
the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (iii) receipt
by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) the occurrence of any event that makes any statement made in the
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the Registration Statement or the
Prospectus so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and (v) the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate.
(c) CF&Co shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in CF&Co's opinion is material, or omits to state
a fact that in CF&Co's opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
14
(d) CF&Co shall have received the opinion of Company Counsel required
to be delivered pursuant Section 7(n) on or before the most recent date such
opinion of Company Counsel was required to be delivered to CF&Co in accordance
with Section 7(n).
(e) CF&Co shall have received the Comfort Letters required to be
delivered pursuant Section 7(o) on or before the most recent date such Comfort
Letters were required to be delivered to CF&Co in accordance with Section 7(o).
(f) CF&Co shall have received the certificates required to be delivered
pursuant to Section 7(m) on or before the most recent date such certificates
were required to be delivered to CF&Co in accordance with Section 7(m).
(g) The Shares shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange, and trading in the Shares shall not
have been suspended on such market.
(h) On each date on which the Company is required to deliver a
certificate pursuant to Section 7(m), the Company shall have furnished to CF&Co
such appropriate further information, certificates and documents as CF&Co may
reasonably request. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof. The Company will furnish CF&Co
with such conformed copies of such opinions, certificates, letters and other
documents as CF&Co shall reasonably request.
(i) There shall not have occurred any event that would permit CF&Co to
terminate this Agreement pursuant to Section 11(a).
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless CF&Co, its
officers, partners and employees, and each person, if any, who controls CF&Co
within the meaning of the Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which CF&Co or such officer,
employee or controlling person may become subject, under the Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) in whole or
in part upon any inaccuracy in the representations and warranties of the Company
contained herein; or (iv) in whole or in part upon any failure of the Company to
perform its obligations hereunder or under law; and to reimburse CF&Co and each
such officer, employee and controlling person for any and all expenses
(including the reasonable fees and disbursements of counsel) as such expenses
are reasonably incurred by CF&Co or such officer, employee or controlling person
in connection
15
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by CF&Co expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 9(a) shall be in
addition to any liabilities that the Company may otherwise have.
(b) CF&Co agrees to indemnify and hold harmless the Company, each of
its trustees, each of its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the Act or
the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company or any such trustee, officer or controlling
person may become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of CF&Co), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement or the Prospectus (or
any amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Company by CF&Co expressly for use therein;
and to reimburse the Company, or any such trustee, officer or controlling person
for any legal and other expense reasonably incurred by the Company, or any such
trustee, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that as of the
date hereof, that the CF&Co has not furnished any information to the Company
expressly for use in the Registration Statement or the Prospectus. The indemnity
agreement set forth in this Section 9(b) shall be in addition to any liabilities
that CF&Co may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 9 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the
16
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party, representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 9 shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 9(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement; provided, that if it is ultimately determined that an indemnified
party was not entitled to indemnification hereunder, such indemnified party
shall be responsible for repaying or reimbursing such amounts to the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(e) If the indemnification provided for in this Section 9 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such
17
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and CF&Co, on the other hand, from the offering of the
Shares pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and CF&Co, on
the other hand, in connection with the statements or omissions or inaccuracies
in the representations and warranties herein which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and CF&Co, on the other hand, in connection with the offering of the
Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company, and the
total commissions, discounts, or other compensation received by CF&Co pursuant
to Section 2, bear to the aggregate initial public offering price of the Shares.
The relative fault of the Company, on the one hand, and CF&Co, on the other
hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or CF&Co, on the other hand, 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 Section 9(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 9(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9(e); provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 9(c) for purposes of
indemnification.
The Company and CF&Co agree that it would not be just and equitable if
contribution pursuant to this Section 9(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9(e), CF&Co shall not be
required to contribute any amount in excess of the commissions, discounts or
other compensation received by CF&Co pursuant to Section 2. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(e), each officer
and employee of CF&Co and each person, if any, who controls CF&Co within the
meaning of the Act and the Exchange Act shall have the same rights to
contribution as CF&Co, and each trustee of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company with the meaning of the Act and the Exchange Act shall have
the same rights to contribution as the Company.
18
10. Representations and Agreements to Survive Delivery. All representations
and warranties of the Company herein or in certificates delivered pursuant
hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of CF&Co, any controlling persons, or the
Company (or any of their respective officers, trustees, directors or controlling
persons), (ii) delivery and acceptance of the Shares and payment therefor or
(iii) any termination of this Agreement.
11. Termination.
(a) CF&Co shall have the right by giving notice as hereinafter
specified at any time to terminate this Agreement if (i) any Material Adverse
Change, or any development that has actually occurred and that is reasonably
expected to cause a Material Adverse Change has occurred which, in the
reasonable judgment of CF&Co, may materially impair the investment quality of
the Shares, (ii) the Company shall have failed, refused or been unable, at or
prior to any Settlement Date, to perform any agreement on its part to be
performed hereunder, (iii) any other condition of CF&Co's obligations hereunder
is not fulfilled, (iv) any suspension or limitation of trading in the Shares or
in securities generally on the New York Stock Exchange , or any setting of
minimum prices for trading of the Shares or in securities generally on such
exchange, shall have occurred, (v) any banking moratorium shall have been
declared by federal or New York authorities or (vi) an outbreak or material
escalation of major hostilities in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement that, in the sole judgment of
CF&Co, makes it impractical or inadvisable to proceed with the completion of the
sale of and payment for the Shares to be sold by CF&Co on behalf of the Company.
Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(f), 7(h), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination. If CF&Co elects to terminate this Agreement as provided in
this Section, CF&Co shall provide the required notice as specified herein.
(b) The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 7(f), 7(h), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.
(c) At any time following the period of twelve (12) months from the
date of this Agreement, CF&Co shall have the right, by giving notice as
hereinafter specified, to terminate this Agreement in its sole discretion. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 7(f), 7(h), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.
(d) This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 11(a), (b) or (c) above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(f), 7(h), Section 9,
Section 10, Section 16 and Section 17 shall remain in full force and effect.
19
(e) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by CF&Co or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of Shares, such Shares shall
settle in accordance with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and if sent to CF&Co, shall be delivered to CF&Co at Cantor
Xxxxxxxxxx & Co., 000 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (212)
000-0000, Attention: Xxxxxxx Xxxxx, Managing Director, ITD-Investment Banking,
with a copies to Xxxx Xxxxxx, Managing Director, ITD-Investment Banking, and
Xxxxxxx Xxxxxx, General Counsel, at the same address, with a copy to Xxxxx
Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, fax no. (212)
000-0000, Attention: Xxxxx X. Xxxxx; or if sent to the Company, shall be
delivered to ProLogis, 00000 Xxxx 00xx Xxxxx, Xxxxxx, XX 00000 fax no. (303)
000-0000, attn: Chief Financial Officer, with a copy to Mayer, Brown, Xxxx & Maw
LLP, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000, fax no. (000) 000-0000,
Attention: Xxxxxxx X. Xxxxx. Each party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice
of a new address for such purpose. Each such notice or other communication shall
be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., eastern time,
on a Business Day or, if such day is not a Business Day, on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, "Business
Day" shall mean any day on which the New York Stock Exchange and commercial
banks in the city of New York are open for business.
13. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and CF&Co and their respective successors and
the affiliates, controlling persons, officers, trustees and directors referred
to in Section 9 hereof. References to any of the parties contained in this
Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign it rights or obligations under this Agreement without
the prior written consent of the other party.
14. Adjustments for Stock Splits. The parties acknowledge and agree that
all share related numbers contained in this Agreement shall be adjusted to take
into account any stock split, stock dividend or similar event effected with
respect to the Shares.
15. Entire Agreement; Amendment; Severability. This Agreement constitutes
the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term
hereof may be amended except pursuant to a written instrument executed by the
Company and CF&Co. 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
20
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.
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the principles of conflicts of laws. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
17. Waiver of Jury Trial. The Company and CF&Co each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this agreement or any transaction contemplated hereby.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile transmission.
21
If the foregoing correctly sets forth the understanding between the
Company and CF&Co, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and CF&Co.
Very truly yours,
PROLOGIS
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
Chief Financial Officer
ACCEPTED as of the date
first-above written:
CANTOR XXXXXXXXXX & CO.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
Executive Managing Director &
General Counsel
22
SCHEDULE 1
SUBSIDIARIES
ProLogis Development Services Incorporated*
ProLogis Limited Partnership I*
ProLogis Limited Partnership II*
ProLogis Limited Partnership III*
ProLogis Limited Partnership IV*
ProLogis IV, Inc.*
ProLogis-North Carolina Limited Partnership*
PLD International Incorporated*
ProLogis Mexico Trust*
ProLogis-DS Mexico Incorporated*
ProLogis California I LLC*
ProLogis UK Holdings S.A.
ProLogis Japan Incorporated*
PLD/RECO Japan TMK Property Trust
ProLogis European Properties Fund
ProLogis North American Properties Fund I LLC*
ProLogis First U.S. Properties LP*
ProLogis Second U.S. Properties LP*
ProLogis Third U.S. Properties LP*
ProLogis-Macquarie Fund*
ProLogis-Billabong I GP LLC*
ProLogis-Billabong II GP LLC*
ProLogis-Billabong III GP LLC*
ProLogis-Billabong Trust*
ProLogis-Billabong GP Trust*
ProLogis-Billabong II GP Trust*
ProLogis-Billabong III GP Trust*
Macquarie-ProLogis Management LLC*
* Denotes U.S. Significant Subsidiary.
SCHEDULE 2
CANTOR XXXXXXXXXX & CO.
000 XXXX 00 XXXXXX
XXX XXXX, XXX XXXX 00000
Date
CHIEF FINANCIAL OFFICER
PROLOGIS
00000 XXXX 00XX XXXXX
XXXXXX, XX 00000
VIA FACSIMILE
FORM OF PLACEMENT NOTICE
Dear ___________:
This confirms our agreement to sell [xxx,xxx] shares of ProLogis, a Maryland
statutory real estate investment trust (the "Company") common shares of
beneficial interest, par value $0.01 per share, pursuant to the CONTROLLED
EQUITY OFFERING(SM) Sales Agreement executed between the Company and Cantor
Xxxxxxxxxx & Co.("CF&Co.") on _____ _, 2003 (the "Agreement"). Terms used herein
but not defined herein shall have the meanings set forth in the Agreement.
Number of Shares to be Sold: ______________________________________
Minimum Price at which Share may be Sold: ______________________________________
Date(s) on which Shares may be Sold: ______________________________________
discount/commission: 2.25%
Manner and capacity in which shares are
to be Sold: ______________________________________
By executing this draw down notice, the parties agree to comply with the
aforementioned agreements, and to execute the transaction as described herein:
Placements. The terms set forth in this Placement Notice will not be binding on
the Company or CF&Co unless and until the Company delivers written notice of its
acceptance of all of the terms of this Placement Notice (an "Acceptance");
provided, however, that neither the Company nor CF&Co will be bound by the terms
of this Placement Notice unless the Company delivers to CF&Co an Acceptance with
respect thereto prior to 4:30 p.m. (New York time) on the Business Day following
the Business Day on which such Placement Notice is delivered to the Company. In
the event of a conflict between the terms of the Sales Agreement and the terms
of this Placement Notice, the terms of this Placement Notice will control.
Sale of Placement Shares by CF&Co. Subject to the terms and conditions of the
Agreement, upon the Acceptance of this Placement Notice, and unless the sale of
the Placement Shares described therein has been suspended or otherwise
terminated in accordance with the terms of the Agreement, CF&Co will use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice.
CF&Co will provide written confirmation to the Company no later than the opening
of the Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company.
CF&Co may sell any Placement Shares pursuant to the Plan(s) of Distribution set
forth in the Company's Registration Statements on Forms S-3 (Reg. No.
333-105717), as the same may be amended and supplemented from time to time,
which cover sale of securities in accordance with the Agreement. The Company
acknowledges and agrees that (i) there can be no assurance that CF&Co will be
successful in selling Placement Shares, and (ii) CF&Co will incur no liability
or obligation to the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by CF&Co to use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares. For the purposes hereof, "Trading Day"
means any day on which Shares are purchased and sold on the principal market on
which the Shares are listed or quoted.
Suspension of Sales. The Company or CF&Co may, upon notice to the other party in
writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against CF&Co
unless it is made to one of the individuals named on Schedule 3 to the
Agreement, as such Schedule may be amended from time to time.
Settlement of Placement Shares. Unless otherwise specified herein settlement for
sales of Placement Shares will occur on the third (3rd) Business Day (or such
other day as is industry practice for regular-way trading) following the date on
which such sales are made (each a
25
"Settlement Date"). The amount of proceeds to be delivered to the Company on a
Settlement Date against the receipt of the Placement Shares sold ("Net
Proceeds") will be equal to the aggregate sales price at which such Shares were
sold, after deduction for (i) CF&Co's commission, discount, or other
compensation for such sales payable by the Company and (ii) any other amounts
due and payable by the Company to CF&Co hereunder.
Delivery of Shares. On or before each Settlement Date, the Company will, or will
cause its transfer agent to, electronically transfer the Placement Shares being
sold by crediting CF&Co's or its designee's account at The Depository Trust
Company through its Deposit Withdrawal Agent Commission System or by such other
means of delivery as may be mutually agreed upon by the parties hereto and, upon
receipt of such Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, CF&Co will deliver the
related Net Proceeds in same day funds delivered to an account designated by the
Company prior to the Settlement Date. If the Company defaults in its obligation
to deliver Shares on a Settlement Date, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 9(a) of
the Agreement, it will (i) hold CF&Co harmless against any loss, claim, damage,
or expense (including reasonable legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company and (ii) pay to CF&Co
any commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.
Very truly yours,
CANTOR XXXXXXXXXX & CO
By: ________________________________
26
By executing this Acceptance the undersigned certifies that (i) all of the
representations and warranties contained in the Agreement are true and correct
on the date hereof as if made on the date hereof, (ii) the Board of Trustees or
an authorized committee thereof has approved the terms and conditions of this
Placement Notice, (iii) the Company is in full compliance with its obligations
under the Agreement and (iv) all of the conditions precedent to the
consummations of the sales contemplated by this Placement Notice has been
satisfied. The undersigned undertakes to promptly CF&Co. in the event that the
above certification shall cease to be true and correct during any period in
which sales may be made under this Placement Notice.
ACCEPTED as of the date
first-above written:
PROLOGIS
By: ________________________________
27
SCHEDULE 3
Xxxx Xxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx
Xxxxxxx XxXxxxxx
28
EXHIBIT 8(d)
MATTERS TO BE COVERED BY COMPANY COUNSEL OPINION
(i) The Company has been duly organized and is validly existing as
a real estate investment trust in good standing under the laws of State of
Maryland, has full power and authority to own its properties and conduct its
business as described in the Registration Statement and Prospectus.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The execution and delivery of this Agreement by the Company on
or prior to the date hereof, and the issuance and sales of the Shares by the
Company pursuant to this Agreement, if issued and sold on or after to the date
of such opinion, (A) will not result in any violation of the provisions of the
declaration of trust (or charter or by-laws or other similar constitutive
documents) of the Company or any Significant Subsidiary incorporated or
organized in a jurisdiction located in the United States and so designated on
Schedule 1 to this Agreement (each, a "U.S. Significant Subsidiary"), (B) will
not constitute a breach of or a Default under (x) the Credit Agreement, dated as
of November 8, 2002, by and among the Company, ProLogis Logistics Services
Incorporated, ProLogis Development Services Incorporated, Bank of America, N.A.
and the Lenders named therein, as amended by the First Amendment thereto dated
as of July 21, 2003 and the Second Amendment thereto dated as of August 8, 2003
(other than with respect to compliance by the Company or any subsidiary with any
financial covenants as to which no opinion need be rendered), (y) the Credit
Agreement, dated as of November 8, 2002, by and among the Company, the
Subsidiary Borrowers party thereto, Bank of America, N.A. and the Lenders named
therein, as amended by the First Amendment thereto dated as of July 21, 2003,
the Second Amendment thereto dated as of August 8, 2002 and the Third Amendment
thereto dated as of November 7, 2003 (other than with respect to compliance by
the Company or any subsidiary with any financial covenants as to which no
opinion need be rendered), or (z) to the best knowledge of such counsel, any
other material Existing Instrument and (C) to the best of our knowledge no
consent, approval, authorization or order of, or filing with, any federal or
Maryland court or governmental agency or body is required for the consummation
of the issuance and sale of the Shares on or after the date of such opinion by
the Company pursuant to this Agreement, except such as have been obtained under
the Act and such as may be required under state securities laws, other than in
the case of clauses (B) and (C), such Defaults and violations as would not,
individually or in the aggregate, result in a Material Adverse Change.
(iv) The Shares to be issued on or after the date of such opinion
have been duly authorized and, when issued, delivered and paid for pursuant to
this Agreement, will be validly issued and fully paid and non-assessable.
(v) The Registration Statement has become effective under the Act
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that purpose
has been instituted by the Commission.
29
(vi) The Registration Statement, the Prospectus, including any
document incorporated by reference therein, and each amendment or supplement to
the Registration Statement and the Prospectus, including any document
incorporated by reference therein (other than the financial statements and
supporting schedules included or incorporated by reference therein or in
exhibits to or excluded from the Registration Statement and other than the Form
T-1, as to which no opinion need be rendered), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the applicable requirements of the Act and the Exchange
Act.
(vii) The statements set forth in the Prospectus under the captions
"Description of Common Shares," "Plan of Distribution" and "Federal Income Tax
Considerations" insofar as such statements constitute a summary of legal matters
and documents referred to therein, are accurate in all material respects.
(viii) To the best of our knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company is a party required to be described in the
Prospectus that are not described as required.
(ix) The Company is not an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
(x) The company has qualified as a real estate investment trust
("REIT") under the Code for its taxable years ended December 31, 1999, 2000,
2001. 2002 and 2003 and the Company is organized and operates in a manner that
will enable it to qualify to be taxed as a REIT under the Code, for the taxable
year ended December 31, 2004 provided it continues to meet the asset
composition, source of income, shareholder diversification, distribution, record
keeping, and other requirements of the Code which are necessary for the Company
to qualify as a REIT.
In addition, such counsel shall state that they have examined various
documents and records and participated in conferences with officers and other
representatives of the Company, representatives of the independent public or
certified public accountants for the Company and with representatives of CF&Co
at which the contents of the Registration Statement and the Prospectus, and any
supplements or amendments thereto, and related matters were discussed and,
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, no facts
have come to their attention that lead them to believe that (i) (except for the
financial statements, supporting schedules and other financial or statistical
data included therein or derived or omitted therefrom, and except for the Form
T-1 as to which such counsel need express no belief) either the Registration
Statement or any amendments thereto, at the time the most recent post-effective
amendment to the Registration Statement (including the filing of the Company's
Annual Report on Form 10-K with the Commission), when such part became effective
or as of the date of this Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) (except for the
financial statements, supporting schedules and other financial or statistical
data included therein or derived or omitted therefrom
30
as to which such counsel need express no belief) the Prospectus or any amendment
or supplement thereto, as of its date, at the date of any such amendment or
supplement or at the date of delivery of such opinion, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the General Corporation Law
of the State of Delaware, the laws regarding real estate investment trusts of
the State of Maryland or the federal law of the United States, to the extent
they deem proper and specified in such opinion, upon the opinion (which shall be
dated as of the date of delivery of such opinion, shall be satisfactory in form
and substance to CF&Co, shall expressly state that CF&Co may rely on such
opinion as if it were addressed to them and shall be furnished to CF&Co) of
other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for CF&Co; provided, however, that such counsel shall
further state that they believe that they and CF&Co are justified in relying
upon such opinion of other counsel and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials and on the representations of the Company as provided in this
Agreement. In rendering the opinions contained in paragraph (x), such opinion
may be based upon (a) the Internal Revenue Code and the rules and regulations
promulgated thereunder and the interpretations of the Internal Revenue Code and
such regulations by the courts and the Internal Revenue Service, all as they are
in effect and exist at the time of the opinion, (b) Maryland law existing and
applicable to the Company, (c) facts and other matters set forth in the
Prospectus, (d) the provisions of the declaration of trust of the Company, the
agreements relating to properties owned by the Company and (e) certain
statements and representations as to factual matters made by the Company to such
counsel provided that such statements and representations are also set forth in
a certificate to CF&Co.
31
EXHIBIT 8(f)
OFFICER CERTIFICATE
The undersigned, _________, Secretary, and _________, [Vice
President/Managing Director] of ProLogis, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), pursuant to
Section 8(f) of the Sales Agreement, dated _____ __, 2003 (the "Sales
Agreement"), between the Company and Cantor Xxxxxxxxxx & Co., as sales agent
("CF&Co"), do hereby certify that each has examined the Company's Registration
Statement on Forms S-3 (Registration No. 333-______, as amended) and the
Prospectus, dated ______ __, 2003, and that the representations and warranties
of the Company contained in the Sales Agreement are true and correct on and as
of the date hereof as if made on and as of the date hereof and the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under the Sales Agreement at or prior to the date hereof.
