PROLOGIS 7.625% Notes due 2014 Underwriting Agreement dated August 11, 2009 J.P. Morgan Securities Inc. Barclays Capital Inc. Morgan Stanley & Co. Incorporated RBS Securities Inc.
Exhibit 1.1
$350,000,000
7.625% Notes due 2014
Underwriting Agreement
dated August 11, 2009
X.X. Xxxxxx Securities Inc.
Barclays Capital Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
RBS Securities Inc.
dated August 11, 2009
X.X. Xxxxxx Securities Inc.
Barclays Capital Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
RBS Securities Inc.
August 11, 2009
X.X. XXXXXX SECURITIES INC.
BARCLAYS CAPITAL INC.
XXXXXX XXXXXXX & CO. INCORPORATED
RBS SECURITIES INC.
BARCLAYS CAPITAL INC.
XXXXXX XXXXXXX & CO. INCORPORATED
RBS SECURITIES INC.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RBS Securities Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Introductory. ProLogis, a Maryland real estate investment trust (the “Company”),
proposes to issue and sell to the several underwriters named in Schedule A (the
“Underwriters”), acting severally and not jointly, the respective amounts set forth in
Schedule A hereto of $350,000,000 aggregate principal amount of the Company’s 7.625% Notes due 2014
(the “Notes”). X.X. Xxxxxx Securities Inc., Barclays Capital Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and RBS Securities Inc. have agreed to act as representatives of the several
Underwriters (in such capacity, the “Representatives”) in connection with the offering and
sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of March 1, 1995 (the “Base
Indenture”), between the Company (formerly Security Capital Industrial Trust) and U.S. Bank
National Association (as successor in interest to State Street Bank and Trust Company), as trustee
(the “Trustee”), as supplemented by the first supplemental indenture, dated as of February
9, 2005 (the “First Supplemental Indenture”), the second supplemental indenture, dated as
of November 2, 2005 (the “Second Supplemental Indenture”), the third supplemental
indenture, dated as of November 2, 2005 (the “Third Supplemental Indenture”), the fourth
supplemental indenture, dated as of March 26, 2007 (the “Fourth Supplemental Indenture”),
the fifth supplemental indenture, dated as of November 8, 2007 (the “Fifth Supplemental
Indenture”), the
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sixth supplemental indenture, dated as of May 7, 2008 (the “Sixth Supplemental
Indenture”) and the seventh supplemental indenture, dated as of May 7, 2008 (the “Seventh
Supplemental Indenture”). Certain terms of the Notes will be established pursuant to an eighth
supplemental indenture, adopted by the Company pursuant to Section 301 of the Base Indenture (the
“Eighth Supplemental Indenture” and together with the Base Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the
Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture
and the Seventh Supplemental Indenture, the “Indenture”). The Notes will be issued in
book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the
“Depositary”), pursuant to a Letter of Representations, dated December 29, 2003 (the
“DTC Agreement”), between the Company and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-157818), which contains a
base prospectus dated March 10, 2009 (the “Base Prospectus”), to be used in connection with
the public offering and sale of debt securities, including the Notes, and other securities of the
Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act. Such registration statement, as amended,
including the financial statements, exhibits and schedules thereto, in the form in which it became
effective under the Securities Act, including any required information deemed to be a part thereof
at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“Registration Statement.” The term “Prospectus” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant
to Rule 424(b) after the date and time that this Agreement is executed and delivered by the parties
hereto. The term “Preliminary Prospectus” shall mean any preliminary prospectus supplement
relating to the Notes, together with the Base Prospectus, that is first filed with the Commission
pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are
deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act prior to 5:05 p.m. Eastern Daylight Time on August 11, 2009 (the “Initial Sale Time”).
All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “disclosed,” “contained,” “included” or “stated” (or other references of like import) in
the Registration Statement, Preliminary Prospectus or Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus,
as the case may be, prior to the Initial Sale Time; and all references in this Agreement to
amendments or supplements to the Registration Statement, Preliminary Prospectus or Prospectus shall
be deemed to include the filing of any document under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), which is or is deemed to be incorporated by reference in the
Registration Statement, Preliminary Prospectus or Prospectus, as the case may be, after the Initial
Sale Time.
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The Notes, together with certain other senior indebtedness of the Company, will have the
benefit of a pledge of certain intercompany notes (the “Note Collateral”) pursuant to (i)
the Second Amended and Restated Borrower Pledge Agreement dated as of October 6, 2005 (the
“Borrower Pledge Agreement”) executed by the Company and Bank of America, N.A., as
collateral agent (in such capacity, the “Collateral Agent”); (ii) Subsidiary Pledge
Agreements (together with the Borrower Pledge Agreement, the “U.S. Pledge Agreements”)
issued in favor of the Collateral Agent by various subsidiaries of the Company that are organized
under the laws of a State of the United States (the “U.S. Grantors”); and (iii) pledge
agreements or the equivalent under applicable law (together with the U.S. Pledge Agreements, the
“Pledge Agreements”) issued in favor of the Collateral Agent by various subsidiaries of the
Company that are organized under the laws of jurisdictions outside the United States (the
“Foreign Grantors” and, together with the U.S. Grantors, the “Subsidiary
Grantors”). The rights, duties, authority and responsibilities of the Collateral Agent and the
relationship among the Credit Parties (which includes, without limitation, the holders of debt
securities issued under the Indenture, including the Notes) regarding their pari passu interests in
the Note Collateral are governed by an Amended and Restated Security Agency Agreement dated as of
October 6, 2005 (as amended and supplemented from time to time, the “Security Agency
Agreement”) among the Company, the Collateral Agent and Bank of America, N.A., as Global
Administrative Agent (in such capacity, the “Administrative Agent”). The Security Agency
Agreement, the Pledge Agreements and any related security documents are referred to herein
collectively as the “Security Documents.” The Company and the Subsidiary Grantors are
referred to herein collectively as the “Grantors.”
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1. Representations and Warranties. The Company hereby represents, warrants
and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the
Closing Date (in each case, a “Representation Date”), as follows:
(a) Compliance with Registration Requirements. The Company meets the requirements for
use of Form S-3 under the Securities Act. The Registration Statement has become effective
under the Securities Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are contemplated or
threatened by the Commission, and any request on the part of the Commission for additional or
supplemental information has been complied with. In addition, the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
At the respective times the Registration Statement and any post-effective amendments
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”)) became effective and at each
Representation Date, the Registration Statement and any amendments thereto (i) complied and
will comply in all material respects with the requirements of the Securities Act and the
rules and regulations of the Commission thereunder (the “Securities Act
Regulations”) and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and (ii) did not and will not contain an
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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. At the date of
the Prospectus and at the Closing Date, neither the Preliminary Prospectus nor the
Prospectus nor any amendments or supplements thereto included or will include an untrue
statement of a material fact or omitted or will omit 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. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to (i) that part of the Registration Statement
which constitutes the Statement of Eligibility on Form T-1 of the Trustee under the Trust
Indenture Act (the “Form T-1”) and (ii) statements in or omissions from the
Registration Statement or any post-effective amendment or the Prospectus or any amendments
or supplements thereto, made in reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through the Representatives expressly for use
therein.
Each preliminary prospectus and prospectus filed as part of the Registration Statement,
as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the Securities Act
Regulations and the Preliminary Prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of the Notes will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities
Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Annex I hereto
and (iii) any other Issuer Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon and in conformity
with written information furnished to the Company by any Underwriter to the Representatives
specifically for use therein.
(c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at
the time 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 the rules and regulations of
the Commission thereunder (the “Exchange Act Regulations”) and (ii) when read together
with the other information in the Disclosure Package, at the Initial Sale Time, and when read
together with the other information in the Prospectus, at the date of the Prospectus and at
the Closing Date, did not and will not include 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 under which they were made, not misleading.
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(d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any person acting on its behalf (within
the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer
relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act, and
(iv) as of the date hereof (the “Execution Time”), the Company was and is a “well
known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the
Securities Act, that initially became effective within three years of the Execution Time; the
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the
Securities Act objecting to use of the automatic shelf registration statement form; and the
Company has not otherwise ceased to be eligible to use the automatic shelf registration
statement form.
(e) Company is not an Ineligible Issuer. (i) At the earliest time after the filing of
the Registration Statement when a bona fide offer (as used in Rule 164(h)(2) of the Securities
Act Regulations) of the Notes is first made by the Company or any other offering participant,
and (ii) as of the Execution Time, the Company was not and is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act).
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale of
the Notes or until any earlier date of which the Company notified or notifies the
Representatives, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus, including any document incorporated by reference
therein that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(g) Distribution of Offering Material by the Company. The Company has not distributed
and will not distribute, prior to the later of the Closing Date and the completion of the
Underwriters’ distribution of the Notes, any offering material in connection with the offering
and sale of the Notes other than the Preliminary Prospectus, the Prospectus, and any Issuer
Free Writing Prospectus reviewed and consented to by the Representatives and identified in
Annex I hereto.
(h) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Authorization of the Base Indenture. The Base Indenture has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
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thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(j) Authorization of the Supplemental Indentures. Each of the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and
the Seventh Supplemental Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable
principles. The Eighth Supplemental Indenture has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by the Company and, assuming due
execution and delivery by the Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for issuance
and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been
duly executed by the Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company, enforceable in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles, and will be entitled to the benefits
of the Indenture.
(l) Authorization of the Pledge Agreements. Each Pledge Agreement has been duly
authorized, executed and delivered by each Grantor that is a party thereto and constitutes a
valid and binding agreement of such Grantor, enforceable against it in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles.
(m) Creation of Security Interest. The representations and warranties of each Grantor
contained in the Pledge Agreement to which it is a party are true and correct with the same
force and effect as if expressly made herein as of the date hereof. Each Grantor is the legal
and beneficial owner of all Note Collateral pledged by it under any Pledge Agreement, free and
clean of any lien, except for the liens created under the Security Documents.
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(n) Description of the Notes, the Indenture and the Security Documents. The Notes, the
Indenture and the Security Documents conform in all material respects to the descriptions
thereof contained in the Disclosure Package and the Prospectus.
(o) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package
and the Prospectus, subsequent to the respective dates as of which information is given in the
Disclosure Package and 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 (iii) except for regular quarterly dividends 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.
(p) Independent Accountants. KPMG LLP, who have expressed their opinion with respect to
the Company’s audited financial statements for the fiscal years ended December 31, 2006, 2007
and 2008 incorporated by reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus, are independent public or certified public accountants within the meaning
of Regulation S-X under the Securities Act and the Exchange Act and a registered public
accounting firm within the meaning of the Xxxxxxxx-Xxxxx Act of 2002.
(q) Preparation of the Financial Statements. The financial statements together with the
related notes thereto and the related schedule incorporated by reference in the Registration
Statement, the Preliminary Prospectus 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. Such financial
statements and related schedule 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. The summary financial information included in the Preliminary
Prospectus and the Prospectus present fairly in all material respects the information shown
therein and have been compiled on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus.
(r) Incorporation and Good Standing of the Company. The Company has been duly organized
and is validly existing as a real estate investment trust in good
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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
Disclosure Package and the Prospectus, and to enter into and perform its obligations under
each of this Agreement, the Notes, the Indenture and the Borrower Pledge 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.
(s) Incorporation and Good Standing of the Subsidiary Grantors. Each of the Subsidiary
Grantors has been duly incorporated and is validly existing and, to the extent applicable in
such jurisdiction, in good standing under the laws of its jurisdiction of organization and has
the power and authority to own, lease and operate its properties and to conduct its business
as described in the Disclosure Package and the Prospectus, and to enter into and perform its
obligations under the respective Pledge Agreement. Each Subsidiary Grantor 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.
(t) Incorporation and Good Standing of Significant Subsidiaries. Each subsidiary and
joint venture of the Company listed on Schedule B hereto (collectively, the “Significant
Subsidiaries”) has been duly incorporated or organized, as the case may be, and is validly
existing as a corporation, trust 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 Disclosure Package and the
Prospectus. Each Significant Subsidiary is duly qualified as a foreign corporation, trust or
partnership 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. 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 B 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 individually meet the criteria
in the
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definition of “significant subsidiary” pursuant to Rule 1-02(w) of Regulation S-X under
the Securities Act.
(u) Capital Stock Matters. All of the issued and outstanding shares of beneficial
interest of the Company have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and state securities laws.
(v) Capitalization. The Company has an authorized capitalization as set forth in the
Disclosure Package and the Prospectus under the heading “Capitalization”; there are no
outstanding options to purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or any contracts or commitments to issue or sell, any shares
of Common Stock, any shares of capital stock of any subsidiary, or any such warrants,
convertible securities or obligations, except as set forth in the Disclosure Package and the
Prospectus and except for options granted under, or contracts or commitments pursuant to, the
Company’s previous or currently existing option and other similar officer, trustee or employee
benefit plans; and there are no contracts, commitments, agreements, arrangements,
understandings or undertakings of any kind to which the Company is a party, or by which it is
bound, granting to any person the right to require either the Company to file a registration
statement under the Securities Act with respect to any securities of the Company or requiring
the Company to include such securities with the Notes registered pursuant to any registration
statement, except as set forth in the Disclosure Package and the Prospectus.
(w) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. 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, including the Security Documents, 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 Indenture, and the issuance and delivery of the
Notes, the consummation of the transactions contemplated hereby or thereby and by the
Disclosure Package and the Prospectus and the Grantors’ execution, delivery and performance of
the Pledge Agreements (i) have been duly authorized by all necessary trust, corporate or other
action, as the case may be, 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
Grantors or any subsidiary of the Company, 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 (other than the lien,
charge or encumbrance created by the Pledge
9
Agreements in favor of the Collateral Agent) upon any property or assets of the Grantors
or any of their 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 Grantors or any subsidiary of the Company,
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 Indenture, or
the issuance and delivery of the Notes or consummation of the transactions contemplated hereby
or thereby and by the Disclosure Package and the Prospectus, or the Grantors’ execution,
delivery and performance of the Pledge Agreements, except such as have been obtained or made
by the Company or the Grantors and are in full force and effect under the Securities Act, the
Trust Indenture Act and applicable state securities or blue sky laws and from the Financial
Industry Regulatory Authority (“FINRA”) or 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.
(x) No Material Actions or Proceedings. Except as otherwise disclosed in the Disclosure
Package and 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.
(y) Labor Matters. 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.
(z) Intellectual Property Rights. The Company and its 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, except as
would not result in a Material Adverse Change; 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 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
10
in the Registration Statement, the Preliminary Prospectus or the Prospectus, and that are
not described in all material respects in such documents. 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,
directors 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.
(aa) All Necessary Permits, etc. 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.
(bb) Title to Properties. Except as otherwise disclosed in the Disclosure Package and
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 1(q) above (or elsewhere in the Disclosure Package and the Prospectus), in each case
free and clear of any security interests, mortgages, liens, encumbrances, equities, 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.
(cc) Tax Law Compliance. 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 1(q) 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.
11
(dd) Company Not an “Investment Company.” The Company is not, and after receipt of
payment for the Notes and the application of the proceeds as described in the Disclosure
Package and the Prospectus under “Use of Proceeds” will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended (the “Investment Company
Act”).
(ee) Insurance. 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.
(ff) No Price Stabilization or Manipulation. The Company has not taken and will not
take, directly or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Notes.
(gg) No Unlawful Contributions or Other Payments. 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 necessary to be disclosed in the Disclosure Package and the Prospectus in
order to make the statements therein, in the light of the circumstances under which such
statements were made, not misleading.
(hh) Compliance with Environmental Laws. 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 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
12
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.
(ii) ERISA Compliance. 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) 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.
(jj) Company’s Accounting System. The Company and its subsidiaries maintain effective
internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the
Exchange Act.
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(kk) Disclosure Controls and Procedures. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under
the Exchange Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company and its subsidiaries is made known to the chief
executive officer and chief financial officer of the Company by others within the Company or
any of its subsidiaries, and such disclosure controls and procedures are reasonably effective
to perform the functions for which they were established subject to the limitations of any
such control system; the Company’s auditors and the audit committee of the board of directors
of the Company have been advised of: (i) any significant deficiencies or material weaknesses
in the design or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize, and report financial data; and (ii) any fraud, whether
or not material, that involves management or other employees who have a role in the Company’s
internal controls; and since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
Any certificate signed by any officer of the Company or any of its subsidiaries and delivered
to the Underwriters or to counsel for the Underwriters in connection with the offering of the Notes
shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
set forth therein on the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
The Company acknowledges that the Underwriters and, for purposes of the opinions to be
delivered pursuant to Section 5 hereof, counsel for the Company and counsel for the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents
to such reliance.
Section 2. Purchase, Sale and Delivery of the Notes.
(a) The Notes. The Company agrees to issue and sell to the several Underwriters,
severally and not jointly, all of the Notes upon the terms herein set forth. On the basis
of the representations, warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company the aggregate principal amount of Notes set forth
opposite their names on Schedule A at a purchase price of 98.889% of the principal amount of
the 7.625% Notes due 2014, payable on the Closing Date (as defined below).
(b) The Closing Date. Delivery of certificates for the Notes in global form to be
purchased by the Underwriters and payment therefor shall be made at the offices of Shearman
& Sterling LLP (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on August 14, 2009, or such other time
and date as the Underwriters shall designate by notice to the Company (the time and date of
such closing are called the “Closing Date”).
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(c) Public Offering of the Notes. The Representatives hereby advise the Company that
the Underwriters intend to offer for sale to the public, as described in the Disclosure
Package and the Prospectus, their respective portions of the Notes as soon after this
Agreement has been executed as the Representatives, in their sole judgment, have determined
is advisable and practicable.
(d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by
wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts
and for the accounts of the several Underwriters, to accept delivery of and receipt for, and
make payment of the purchase price for, the Notes that the Underwriters have agreed to
purchase. The Representatives may (but shall not be obligated to) make payment for any
Notes to be purchased by any Underwriter whose funds shall not have been received by the
Representatives by the Closing Date for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters the Notes at the Closing Date
against the irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Notes shall be in such denominations and
registered in such names and denominations as the Representatives shall have requested at
least two full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as
the Representatives may designate. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
Section 3. Additional Covenants. The Company further covenants and agrees with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430B of the Securities
Act Regulations, and will promptly notify the Representatives, and confirm the notice in
writing, of (i) the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the
Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period (defined below), (iii) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Preliminary Prospectus or
the Prospectus or for additional information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the
suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings
15
necessary pursuant to Rule 424 and will take such steps as it deems necessary to
ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in the event that it
was not, it will promptly file such document. The Company will use its best efforts to
prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During such period beginning on the date of this Agreement
and ending on the later of the Closing Date or such date as, in the opinion of counsel for
the Underwriters, the Prospectus is no longer required by law to be delivered in connection
with sales of the Notes by an Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the Securities Act Regulations (the
“Prospectus Delivery Period”), the Company will give the Representatives notice of
its intention to file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b) of the Securities Act Regulations), or any amendment, supplement or
revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities
Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representatives or counsel for
the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company will deliver to the
Representatives and counsel for the Underwriters, without charge, as such Underwriter or
counsel for the Underwriters may reasonably request, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and certificates of
experts. The Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without
charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes of offering
the Notes. The Company will furnish to each Underwriter, without charge, during the
Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
Securities Act and the Securities Act Regulations and the Exchange Act and the Exchange Act
Regulations so as to permit the completion of the distribution of the Notes as contemplated
in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If, during the Prospectus Delivery Period, any event or
16
development shall occur or condition exist as a result of which the Disclosure Package
or the Prospectus as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein in the light of the circumstances under which they were made or then prevailing, as
the case may be, not misleading, or if, in the opinion of counsel for the Underwriters or
for the Company, it shall be necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, in order to make the statements therein, in the light
of the circumstances under which they were made or then prevailing, as the case may be, not
misleading, or if in the opinion of either such counsel, it is otherwise necessary or
advisable to amend or supplement the Registration Statement, the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection with the delivery of the
Prospectus, the Company agrees to (i) notify the Representatives of any such event or
condition and (ii) promptly prepare (subject to Section 3(b) and 3(l) hereof), file with the
Commission (and use its best efforts to have any amendment to the Registration Statement or
any new registration statement to be declared effective) and furnish at its own expense to
the Underwriters and to dealers in such quantities as they may reasonably request,
amendments or supplements to the Registration Statement, the Disclosure Package or the
Prospectus, or any new registration statement, necessary in order to make the statements in
the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the
circumstances under which they were made or then prevailing, as the case may be, not
misleading or so that the Registration Statement, the Disclosure Package or the Prospectus,
as amended or supplemented, will comply with law.
(f) Blue Sky Compliance. The Company shall cooperate with the Representatives and
counsel for the Underwriters to qualify or register the Notes for sale under (or obtain
exemptions from the application of) the state securities or blue sky laws of those
jurisdictions designated by the Representatives, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Notes. The Company shall not be required to qualify to transact
business or to take any action that would subject it to general service of process in any
such jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign business. The Company will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption relating to) the
Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use its best efforts to
obtain the withdrawal thereof at the earliest possible moment.
(g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the
Notes sold by it in the manner described under the caption “Use of Proceeds” in the
Disclosure Package and the Prospectus.
17
(h) Depositary. The Company shall cooperate with the Underwriters and use its best
efforts to permit the Notes to be eligible for clearance and settlement through the
facilities of the Depositary.
(i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company
shall file, on a timely basis, with the Commission and the New York Stock Exchange all
reports and documents required to be filed under the Exchange Act and the Exchange Act
Regulations.
(j) Agreement Not to Offer or Sell Additional Securities. During the period commencing
on the date hereof and ending on the Closing Date, the Company will not, without the prior
written consent of the Representatives (which consent may be withheld at the sole discretion
of the Representatives), directly or indirectly, sell, offer, contract or grant any option
to sell, pledge, transfer or establish an open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce
the offering of, or file any registration statement under the Securities Act in respect of,
any debt securities of the Company similar to the Notes or securities exchangeable for or
convertible into debt securities similar to the Notes (other than as contemplated by this
Agreement with respect to the Notes).
(k) Final Term Sheet. The Company will prepare a final term sheet containing only a
description of the Notes, and will file such term sheet pursuant to Rule 433(d) under the
Securities Act within the time required by such rule (such term sheet, the “Final Term
Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of
this Agreement. A form of the Final Term Sheet for the Notes is attached hereto as Exhibit
D.
(l) Permitted Free Writing Prospectuses. The Company represents that it has not made,
and agrees that, unless it obtains the prior written consent of the Representatives, it will
not make, any offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in
Rule 405 of the Securities Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act; provided that the prior
written consent of the Representatives shall be deemed to have been given in respect of any
Issuer Free Writing Prospectuses identified in Annex I to this Agreement. Any such free
writing prospectus consented to or deemed to be consented to by the Representatives is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping. The Company consents to the use by any
Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus”
as defined in Rule 433, and (b) contains only (i) information describing the preliminary
terms of the Notes or their offering or (ii) information that describes the final terms of
the Notes or their offering and that is included in the Final Term Sheet of the Company
contemplated in Section 3(k);
18
provided that each Underwriter severally covenants with the Company not to take any
action without the Company’s consent that would result in a free writing prospectus being
required to be filed with the Commission under Rule 433(d) under the Securities Act that
otherwise would not be required to be filed by the Company thereunder, but for the action of
such Underwriter.
(m) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any
time, when the Notes remain unsold by the Underwriters, the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment
on the proper form relating to the Notes, in a form satisfactory to the Representatives,
(iii) use its best efforts to cause such registration statement of post-effective amendment
to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
The Company will take all other action necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(n) Filing Fees. The Company agrees to pay the required Commission filing fees
relating to the Notes within the time required by Rule 456(b)(1) of the Securities Act
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Notes to the Underwriters, (iii) all fees and expenses of the Company’s counsel, independent public
or certified public accountants and other advisors to the Company, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and distribution of the
Registration Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the
Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC
Agreement and the Notes, (v) all filing fees, attorneys’ fees and expenses incurred by the Company
or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky
Survey” or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees
19
incident to the review and approval by FINRA of the terms of the sale of the Notes, (vii) the
fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Notes, (viii) any fees payable in connection
with the rating of the Notes with the ratings agencies, (ix) all fees and expenses (including
reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by
the Depositary for “book-entry” transfer, (x) all other fees, costs and expenses referred to in
Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses
incurred in connection with the performance of its obligations hereunder for which provision is not
otherwise made in this Section. Except as provided in this Section 4, Section 6, Section 8 and
Section 9 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement shall have
become effective under the Securities Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Securities Act and no
proceedings for that purpose shall have been instituted or be pending or threatened by the
Commission, any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriters and the
Company, at the Execution Time, shall not have received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form. The Preliminary Prospectus and the Prospectus shall have been
filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4), (5) or (8), as
applicable (or any required post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule 430A).
(b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall have
received from KPMG LLP, independent public or certified public accountants for the Company,
a letter dated the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives with respect to the audited and unaudited financial
statements and certain financial information contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
(c) Bring-down Comfort Letter. On the Closing Date the Representatives shall have
received from KPMG LLP, independent public or certified public accountants for the Company,
a letter dated such date, in form and substance satisfactory to the Representatives, to the
effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (b) of this Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to the Closing
Date.
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(d) No Objection. If the Registration Statement and/or the offering of the Notes has
been filed with FINRA for review, FINRA shall not have raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.
(e) No Material Adverse Change or Ratings Agency Change. For the period from and after
the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall
have received the favorable opinion of Xxxxx Xxxxx LLP, counsel for the Company, dated as of
the Closing Date, the form of which is attached as Exhibit A.
(g) Opinion of General Counsel of the Company. On the Closing Date, the
Representatives shall have received the favorable opinion of Xxxxxx X. Xxxxxxx, Managing
Director, General Counsel and Secretary of the Company, dated as of the Closing Date, the
form of which is attached as Exhibit B.
(h) Opinion of Counsel for Collateral Agent and Administrative Agent. On the Closing
Date, the Representatives shall have received the favorable opinion of Xxxxxx and Xxxxx,
LLP, counsel to the Collateral Agent and the Administrative Agent, dated as of the Closing
Date, substantially to the effect as set forth in Exhibit C.
(i) Opinion of Counsel for Dutch Grantors. On the Closing Date, the Representatives
shall have received the favorable opinion of Xxxxxxx xxx Xxx, counsel to the Grantors
organized under the laws of the Netherlands, dated as of the Closing Date, in the form
delivered to the lenders in connection with the execution of the global senior credit
agreement, dated as of October 6, 2005, by and among the Company, certain other borrowers,
Bank of America, N.A., ABN Amro Bank N.V. and Sumitomo Mitsui Banking Corporation (the
“Global Senior Credit Agreement”), except that such counsel need not opine as to the
due authorization, execution and delivery of the Global Senior Credit Agreement.
(j) Opinion of Counsel for Japanese Grantors. On the Closing Date, the Representatives
shall have received the favorable opinion of Xxxxxxxx Xxxx & Xxxxxxxxx, counsel to the
Grantors organized under the laws of Japan, dated as of the Closing Date, in the form
delivered to the lenders in connection with the execution of the
21
Global Senior Credit Agreement, except that such counsel need not opine as to the due
authorization, execution and delivery of the Global Senior Credit Agreement.
(k) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives
shall have received the favorable opinion of Xxxxxxxx & Sterling LLP, counsel for the
Underwriters, dated as of the Closing Date, with respect to such matters as may be
reasonably requested by the Underwriters.
(l) Officers’ Certificate. On the Closing Date, the Representatives shall have
received a written certificate executed by the Chief Executive Officer, President, Chief
Operating Officer or a Managing Director of the Company and the Chief Financial Officer or
Chief Accounting Officer of the Company, dated as of the Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) there has not occurred any downgrading, and the Company has not received any
notice of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(iv) for the period from and after the date of this Agreement and prior to the Closing
Date, there has not occurred any Material Adverse Change;
(v) the representations, warranties and covenants of the Company set forth in Section 1
of this Agreement are true and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
(vi) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(m) Additional Documents. On or before the Closing Date, the Representatives and
counsel for the Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the issuance and
sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements,
herein contained.
22
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 6, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5 or Section 11, or if the sale to the Underwriters of
the Notes on the Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the Notes,
including but not limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
Section 7. Offering Restrictions.
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a Relevant Member State), each Underwriter represents and agrees that
with effect from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the Relevant Implementation Date) it has not made and will not make an offer
of the Notes to the public in that Relevant Member State prior to the publication of a prospectus
in relation to the Notes which has been approved by the competent authority in that Relevant Member
State or, where appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the Relevant Implementation Date, make an offer
of the Notes to the public in that Relevant Member State at any time:
(a) to legal entities which are authorised or regulated to operate in the financial markets
or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an
annual net turnover of more than €50,000,000, as shown in its last annual or consolidated
accounts;
(c) to fewer than 100 natural or legal persons (other than qualified investors as defined
in the Prospective Directive) subject to obtaining the prior consent of representative of any such
offer; or
(d) in any other circumstances which do not require the publication by the Issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
23
For the purposes of this provision, the expression an “offer of notes to the public” in
relation to any Notes in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Notes to be offered so as to
enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/ EC and includes any relevant implementing
measure in each Relevant Member State.
Each Underwriter further represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause
to be communicated an invitation or inducement to engage in investment activity (within the meaning
of Section 21 of the Financial Services and Markets Act 2000 (“FSMA”)) received by it in
connection with the issue or sale of the Notes in circumstances in which Section 21(1) of the FSMA
would not, if the Issuer was not an authorised person, apply to the Company; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers and employees, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Underwriter or such director, officer,
employee or controlling person may become subject, under the Securities 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 any Issuer Free Writing Prospectus, or any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact, in each case, 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 each Underwriter and each such officer,
employee and controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by
such Underwriter or such officer,
employee or controlling person in connection with investigating, defending, settling,
24
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 the Representatives expressly for
use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus,
the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The
indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the
Company may otherwise have.
(b) Indemnification of the Company, its Trustees and Officers. Each Underwriter agrees,
severally and not jointly, 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 Securities 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 Securities 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 such Underwriter), 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, any Issuer Free Writing Prospectus, the Preliminary
Prospectus 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, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon
and in conformity with written information furnished to the Company by the Representatives
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 indemnity
agreement set forth in this Section 8(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 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 8, 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 8 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
25
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the 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 8 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
(the Representatives in the case of Section 8(b) and Section 9), 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) Settlements. The indemnifying party under this Section 8 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 8(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 (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action, suit or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party
26
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 proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Notes 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 the Underwriters, 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 the
Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in each case as set
forth on the front cover page of the Prospectus, bear to the aggregate initial public offering
price of the Notes as set forth on such cover. The relative fault of the Company, on the one hand,
and the Underwriters, 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 the Underwriters, 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 8(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 8(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; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(c) for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names
in Schedule A. For purposes of this Section 9, each officer and employee of an Underwriter and
27
each person, if any, who controls an Underwriter within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Underwriter, 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 Securities Act and the Exchange Act shall
have the same rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes, to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
the Notes set forth opposite their respective names on Schedule A bears to the aggregate principal
amount of the Notes set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate
principal amount of such Notes with respect to which such default occurs exceeds 10% of the
aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Notes are not made within 48 hours
after such default, this Agreement shall terminate without liability of any party to any other
party except that the provisions of Section 4, Section 6, Section 8 and Section 9 shall at all
times be effective and shall survive such termination. In any such case either the Representatives
or the Company shall have the right to postpone the Closing Date, but in no event for longer than
seven days in order that the required changes, if any, to the Registration Statement, any Issuer
Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or
arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. On or after the Initial Sale Time and
prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given
to the Company if at any time (i) trading or quotation in any of the Company’s securities shall
have been suspended or limited by the Commission or by the New York Stock Exchange, or trading in
securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have
been suspended or limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall
have been declared by any of federal or New York authorities; (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis or calamity involving
the United States, or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in
United States’ or international political, financial or economic conditions, as in the
judgment of the Representatives is material and adverse and makes it impracticable or inadvisable
to market
28
the Notes in the manner and on the terms described in the Disclosure Package and the
Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the
Representatives there shall have occurred any Material Adverse Change; or (v) there shall have
occurred a material disruption in commercial banking or securities settlement or clearance services
in the United States. Any termination pursuant to this Section 11 shall be without liability on the
part of (a) the Company to any Underwriter, except that the Company shall be obligated to reimburse
the expenses of the Representatives and the Underwriters pursuant to Sections 4 and 6 hereof, (b)
any Underwriter to the Company, or (c) of any party hereto to any other party except that the
provisions of Section 8 and Section 9 shall at all times be effective and shall survive such
termination.
Section 12. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment for the Notes sold
hereunder and any termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: High Grade Syndicate Desk – 8th floor
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Syndicate Registration
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, New York 10036
Facsimile: 000-000-0000
Attention: Investment Banking Division
and
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: High Grade Syndicate Desk – 8th floor
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Syndicate Registration
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, New York 10036
Facsimile: 000-000-0000
Attention: Investment Banking Division
and
29
RBS Securities Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Debt Capital Markets Syndicate
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
If to the Company:
ProLogis
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxx Xxxxx LLP
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Debt Capital Markets Syndicate
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
If to the Company:
ProLogis
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxx Xxxxx LLP
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the employees, officers and directors and controlling persons referred to in
Section 8 and Section 9, and in each case their respective successors, and no other person will
have any right or obligation hereunder. The term “successors” shall not include any purchaser of
the Notes as such from any of the Underwriters merely by reason of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this
30
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SUCH STATE.
Section 17. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Company and that
the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters, or any of them, with respect to the subject
matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against the several Underwriters with respect to any breach or
alleged breach of agency or fiduciary duty.
Section 18. General Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party
whom the condition is meant to benefit. The Table of Contents and the Section headings herein
are for the convenience of the parties only and shall not affect the construction or interpretation
of this Agreement.
31
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
32
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, PROLOGIS |
||||
By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxxx | |||
Title: | Managing Director |
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
X.X. XXXXXX SECURITIES INC. | ||||
BARCLAYS CAPITAL INC. | ||||
XXXXXX XXXXXXX & CO. INCORPORATED | ||||
RBS SECURITIES INC. | ||||
Acting on behalf of themselves and as | ||||
Representatives of the several Underwriters | ||||
named in the attached Schedule A | ||||
By:
|
X.X. XXXXXX SECURITIES INC. | |||
By:
|
/s/ Xxxxx Xxxxxx
|
|||
Title: Executive Director | ||||
By:
|
BARCLAYS CAPITAL INC. | |||
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
Title: Director | ||||
By:
|
XXXXXX XXXXXXX & CO. INCORPORATED | |||
By:
|
/s/ Xxxxx Xxxx
|
|||
Title: Vice President | ||||
By:
|
RBS SECURITIES INC. | |||
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|||
Title: Managing Director |
SCHEDULE A
Aggregate | ||||
Principal Amount | ||||
of the Notes | ||||
Underwriters | to be Purchased | |||
X.X. Xxxxxx Securities Inc. |
$ | 59,955,000 | ||
Barclays Capital Inc. |
59,955,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
59,920,000 | |||
RBS Securities Inc. |
59,920,000 | |||
Scotia Capital (USA) Inc. |
22,750,000 | |||
RBC Capital Markets Corporation |
22,750,000 | |||
Xxxxx Fargo Securities, LLC |
22,750,000 | |||
Calyon Securities (USA) Inc. |
14,000,000 | |||
SG Americas Securities, LLC |
14,000,000 | |||
ING Financial Markets LLC |
14,000,000 | |||
Total |
$ | 350,000,000 | ||
Sched. A-1
SCHEDULE B
LIST OF SIGNIFICANT SUBSIDIARIES
Palmtree Acquisition Corporation
PLD International Incorporated
ProLogis Japan Incorporated
Catellus Operating Limited Partnership
PLD International Incorporated
ProLogis Japan Incorporated
Catellus Operating Limited Partnership
Sched. B-1
ANNEX I
ProLogis—Issuer Free Writing Prospectuses
1. | Final Term Sheet, dated August 11, 2009, for the 7.625% Notes due 2014 |
Annex I-1
EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to Section 5(f) of the
Underwriting Agreement.
References to the Preliminary Prospectus or the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
(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 Disclosure Package and the Prospectus and to enter into and perform its
obligations under each of this Agreement, the Notes, the Indenture and the Borrower Pledge
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.
(ii) Each of the U.S. Grantors has been duly organized and is validly existing and in
good standing under the laws of its jurisdiction of organization and has the power and
authority to own, lease and operate its properties and to conduct its business as described
in the Disclosure Package and the Prospectus and to enter into and perform its obligations
under its respective Pledge Agreement. Each U.S. Grantor 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.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Base Indenture has been duly qualified under the Trust Indenture Act and has
been duly authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles.
(v) Each of the First Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental
Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture and the
Eighth Supplemental Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as
A-1
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(vi) The Notes have been duly authorized for issuance and sale pursuant to this
Agreement and the Indenture and, when executed by the Company and authenticated by the
Trustee in the manner provided for in the Indenture and delivered against payment of the
purchase price therefor in accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company, enforceable in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles, and will be entitled to the benefits of the
Indenture.
(vii) Each of the Pledge Agreements has been duly authorized, executed and delivered by
the respective Grantor and constitutes a valid and binding agreement of such Grantor,
enforceable against it in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles.
(viii) The Security Agency Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company, enforceable
against it in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles. In rendering such opinion, such counsel need only opine as to the
enforceability against the Company of Section 9(c) thereof.
(ix) Each Pledge Agreement is effective to create a security interest under Article 9
of the Uniform Commercial Code as currently in effect in the State of New York (the
“UCC”) to the extent a security interest can be created thereunder in the collateral
covered thereby (any such collateral, “Article 9 Collateral”).
(x) Pursuant to Section 9-301 of the UCC, the local law of the jurisdiction where
instruments are actually located governs perfection of a possessory security interest in
such instruments. Assuming the Collateral Agent takes and retains possession (as such term
is used in Section 9-313(a) of the UCC) in the State of New York of the instruments pledged
to the Collateral Agent pursuant to each Pledge Agreement (the “Pledged
Securities”), and further assuming the Pledged Securities are each duly indorsed to the
Collateral Agent or in blank by an effective indorsement, the Collateral Agent’s security
interest in the rights of the Company and the applicable U.S. Grantors and Foreign Grantors
(each a “Pledgor”) in the Pledged Securities will be perfected under the UCC.
(xi) Under the UCC (including the choice of laws provisions thereof), the local law of
the jurisdiction where a debtor is “located” governs (with certain exceptions not
A-2
relevant to this opinion) perfection of a nonpossessory security interest in any
Article 9 Collateral in which a security interest may be perfected by filing a financing
statement under the Uniform Commercial Code as in effect in the U.S. State of filing (any
such collateral, “Filing Collateral”). Under the UCC (including the choice of laws
provisions thereof), (1) the U.S. State that is the jurisdiction of formation of the Company
or a U.S. Grantor (a “Formation State”) is the “location” for the Company or such
U.S. Grantor and, therefore, the local laws of such Formation State govern perfection by the
filing of financing statements of a security interest in the Company’s or such U.S.
Grantor’s rights in its Filing Collateral and (2) assuming that each Foreign Grantor’s only
place of business or its chief executive office is located in the country in which such
Foreign Grantor was organized or formed and the law of such country does not require
information concerning the existence of a nonpossessory security interest to be made
generally available in a filing, recording or registration system as a condition or result
of the security interest’s obtaining priority over the rights of a lien creditor with
respect to such Foreign Grantor’s Article 9 Collateral (as to which we express no opinion),
then the District of Columbia is the “location” of such Foreign Grantor and, therefore, the
local laws of the District of Columbia govern perfection by the filing of financing
statements of a security interest in such Foreign Grantor’s rights in its Filing Collateral.
Accordingly, the security interest of the Collateral Agent in the Filing Collateral of such
Foreign Grantor is perfected under the Uniform Commercial Code as currently in effect in the
District of Columbia.
(xii) The Registration Statement became effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act. To the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for such purpose have been instituted or are pending
or are contemplated or threatened by the Commission. Any required filing of the Preliminary
Prospectus and the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required by such Rule
424(b).
(xiii) 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 Securities Act, the Exchange Act and the Trust Indenture Act.
(xiv) The Notes, the Indenture and the Security Documents conform in all material
respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(xv) The statements (A) in the Base Prospectus under the captions “Risk Factors—Federal
Income Tax Risks,” “Description of Debt Securities” and “Federal
A-3
Income Tax Considerations,” (B) in each of the Preliminary Prospectus Supplement and
the Prospectus Supplement under the caption “Description of Notes”, (C) incorporated by
reference in the Preliminary Prospectus and the Prospectus from Item 3 of Part I of the
Company’s Annual Report on Form 10-K, and (D) in the Item 15 of the Registration Statement,
in each case insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein has been reviewed by such counsel and fairly present and
summarize, in all material respects, the matters referred to therein.
(xvi) No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement and the Indenture and consummation of
the transactions contemplated hereby and thereby and by the Disclosure Package and the
Prospectus (including the issuance and delivery of the Notes and the execution, delivery and
performance by the Grantors of the Pledge Agreements, except such as have been obtained or
made by the Company and are in full force and effect under the Securities Act, Trust
Indenture Act, applicable state securities or blue sky laws and from FINRA and consents the
failure of which to obtain would not result in a Material Adverse Change or have a material
adverse effect on the transactions contemplated by this Agreement or the Indenture or on the
validity and enforceability of the Notes and the Indenture.
(xvii) The execution and delivery of each of the Agreement and the Indenture by the
Company and the execution and delivery of the Pledge Agreements by the Grantors, and the
execution, issuance and delivery of the Notes by the Company and the performance by the
Company and the Grantors, as applicable, of their respective obligations thereunder (other
than performance by the Company of its obligations under the indemnification section of the
Agreement, as to which no opinion need be rendered) (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 the Grantors or any Significant Subsidiary
incorporated or organized in a jurisdiction located in the United States and so designated
on Schedule B to the Agreement (each, a “U.S. Significant Subsidiary”); (B) will not
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 the Grantors or
any of the U.S. Significant Subsidiaries pursuant to (x) the Global Senior Credit Agreement,
dated as of October 6, 2005, by and among the Company, certain other borrowers, Bank of
America, N.A., ABN Amro Bank N.V. and Sumitomo Mitsui Banking Corporation (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; or (C) to the best knowledge of such counsel, will not result
in any violation of any law, administrative regulation or administrative or court decree
applicable to the Company or the Grantors or any U.S. Significant Subsidiary, 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.
(xviii) The Company is not, and after receipt of payment for the Notes and the
application of proceeds as described in the Disclosure Package and the Prospectus under
A-4
“Use of Proceeds”, will not be, an “investment company” within the meaning of
Investment Company Act.
(xix) The Company has qualified to be taxed as a real estate investment trust pursuant
to the Internal Revenue Code for its taxable years ended December 31, 2006, 2007 and 2008
and the Company’s present organization, ownership, the Company’s present and proposed method
of operation, assets and income are such that the Company is in a position under present law
to so qualify for the fiscal year ended December 31, 2009 and in the future.
(xx) The investments of the Company described in the Disclosure Package and the
Prospectus are permitted investments under the declaration of trust of the Company.
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 the Underwriters at which the contents of the Registration Statement, the
Disclosure Package 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, the Disclosure Package or the Prospectus, including the documents
incorporated by reference therein (other than as specified above), and any supplements or
amendments thereto, on the basis of the foregoing, no facts came to their attention that caused
them to believe that (i) the Registration Statement or any amendments thereto, at the most recent
deemed effective date pursuant to Rule 430B(f)(2) under the Securities Act prior to the Initial
Sale Time, 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; (ii) the
Prospectus, as of its date or at the Closing Date, 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; or (iii) the Disclosure Package as
of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of circumstances
under which they were made, not misleading (except for the Form T-1 and the financial statements,
supporting schedules and other financial or statistical data included or incorporated by reference
therein or derived or omitted therefrom as to which such counsel need express no belief).
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 the Closing Date, shall be satisfactory in form and substance to the
Underwriters, shall expressly state that the Underwriters may rely on such opinion as if it were
addressed to them and shall be furnished to the Representatives) of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the Underwriters;
provided, however, that such counsel shall further state that they believe that they and the
Underwriters are justified in relying upon such opinion of other counsel, (B) upon the
A-5
opinion of general counsel of the Company referred to in Section 5(g) of the Agreement, and
(C) 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 the
Agreement. In rendering the opinions contained in paragraphs (xix) and (xx), 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 Amended Restated 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 the Underwriters. In
rendering the opinions contained in paragraphs (ix) through (xi) such counsel may make such
assumptions as are customarily made in connection with such opinions.
For the purposes of such opinion, (A) the term “Pledge Agreements” shall refer to,
collectively, (i) the Second Amended and Restated Borrower Pledge Agreement dated as of October 6,
2005 (the “Borrower Pledge Agreement”) executed by the Company and Bank of America, N.A.,
as collateral agent (in such capacity, the “Collateral Agent”); (ii) each of the separate
Subsidiary Pledge Agreements dated as of October 6, 2005 (together with the Borrower Pledge
Agreement, the “U.S. Pledge Agreements”) executed by the Collateral Agent and each of
ProLogis Japan Finance Incorporated, ProLogis Japan Incorporated, ProLogis Development Services
Incorporated, ProLogis Management Incorporated, ProLogis-North Carolina (2) Incorporated,
ProLogis-Monterrey (1) LLC, ProLogis-Monterrey (2) LLC, ProLogis-Reynosa (1) LLC, ProLogis-Reynosa
(2) LLC (such entities being the “U.S. Grantors”), ProLogis KK (the “Japanese
Grantor”); and (iii) the Pledge of Intercompany Receivables dated as of October 6, 2005
executed by PLD Europe Finance B.V., ProLogis UK Funding B.V., ProLogis UK Finding II B.V. (such
entities being the “Dutch Grantors”; and, together with the Japanese Grantor, the
“Foreign Grantors”; and, together with the U.S. Grantors and the Japanese Grantor, the
“Subsidiary Grantors”; and the Subsidiary Grantors together with the Company, the
“Grantors”), and the Collateral Agent; and (B) the terms “Grantor”, “U.S. Grantor”,
“Foreign Grantor”, and “Collateral Agent” shall have the meanings set forth above in the definition
of Pledge Agreements.
A-6
EXHIBIT B
Opinion of the General Counsel of the Company to be delivered pursuant to Section 5(g) of the
Underwriting Agreement.
References to the Preliminary Prospectus or the Prospectus in this Exhibit B include any
supplements thereto at the Closing Date.
(i) Each of the U.S. Significant Subsidiaries of the Company has been duly incorporated
or organized, as the case may be, and is validly existing as a corporation, trust or
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
Disclosure Package and the Prospectus. Each U.S. Significant Subsidiary is duly qualified
as a foreign corporation, trust, partnership or limited liability company to transact
business and (except as to any general partnership) 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.
(ii) All of the issued and outstanding capital stock and other equity interests of each
U.S. Significant Subsidiary have been duly authorized and validly issued, is fully paid and
(except for general partnership interests) nonassessable; all shares of outstanding capital
stock and other equity interests of each U.S. 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 such security interests, mortgages,
pledges, liens, encumbrances and claims as would not, individually or in the aggregate,
result in a Material Adverse Change.
(iii) To the best knowledge of such counsel, there are no legal or governmental
actions, suits or proceedings pending or threatened which are required to be disclosed in
the Registration Statement, the Preliminary Prospectus or the Prospectus, other than those
disclosed therein.
(iv) To the best knowledge of such counsel, there are no Existing Instruments required
to be described or referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto; and the descriptions thereof and references thereto are
correct in all material respects.
(v) To the best knowledge of such counsel, neither the Company nor any subsidiary
formed in the United States is in (A) violation of its declaration of trust (or charter or
by-laws or other similar constitutive documents) or (B) violation of any law, administrative
regulation or administrative or court decree applicable to the Company or any U.S.
Significant Subsidiary or (C) is in Default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material Existing
B-1
Instrument, except in the case of (B) and (C) above, for such violations or Defaults as
would not, individually or in the aggregate, result in a Material Adverse Change.
B-2
EXHIBIT C
Opinion of the Counsel for the Collateral Agent and the Administrative Agent to be delivered
pursuant to Section 5(h) of the Purchase Agreement.
(i) Based solely upon the Officer’s Certificate, the Security Agency Agreement has been
duly authorized, executed, and delivered by Collateral Agent.
(ii) The Security Agency Agreement is enforceable against Collateral Agent in
accordance with its terms.
C-1
EXHIBIT D
Form of Final Term Sheet for the Notes
PROLOGIS
7.625% Notes due 2014 | ||
Issuer: |
ProLogis | |
Security: |
7.625% Notes due 2014 | |
Size: |
$350,000,000 | |
Maturity Date: |
August 15, 2014 | |
Coupon: |
7.625% per annum, payable semi-annually | |
Interest Payment Dates: |
February 15 and August 15, commencing February 15, 2010 | |
Price to Public: |
99.489% | |
Underwriting Discount: |
0.60% | |
Net Proceeds, Before
Expenses, to ProLogis: |
$346,111,500 | |
Use of Proceeds: |
ProLogis intends to use the net proceeds for the | |
repayment of borrowings under its global line of | ||
credit and for general corporate purposes, which may | ||
include the repayment or repurchase of other | ||
indebtedness. | ||
Spread to Benchmark Treasury: |
+ 507.4 basis points | |
Benchmark Treasury: |
2.625% due July 31, 2014 | |
Benchmark Treasury Spot: |
99-24+ | |
Benchmark Treasury Yield: |
2.676% | |
Xxxxxxx Xxxxx: |
7.75% | |
Make-Whole Call: |
Treasury Rate + 50 basis points | |
Expected Settlement Date: |
August 14, 2009 (T+3) | |
CUSIP / ISIN: |
000000XX0 / US743410AU60 | |
Ratings: |
Baa2 (negative outlook) / BBB- (negative outlook) / | |
BBB (negative outlook) | ||
Joint Book-Running Managers: |
X.X. Xxxxxx Securities Inc. | |
Barclays Capital Inc. | ||
Xxxxxx Xxxxxxx & Co. Incorporated | ||
RBS Securities Inc. | ||
Senior Co-Managers: |
Scotia Capital (USA) Inc. | |
RBC Capital Markets Corporation | ||
Xxxxx Fargo Securities, LLC | ||
Co-Managers: |
Calyon Securities (USA) Inc. | |
SG Americas Securities, LLC | ||
ING Financial Markets LLC |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
Exh. D-1
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus
and supplement thereto in that registration statement and other documents the issuer has filed with
the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange to send you the
prospectus if you request it by contacting X.X. Xxxxxx Securities Inc. collect at 0-000-000-0000,
Barclays Capital Inc. toll-free at 0-000-000-0000, Xxxxxx Xxxxxxx & Co. Incorporated toll-free at
0-000-000-0000 or RBS Securities Inc. toll-free at 0-000-000-0000.
Exh. D-2