Exhibit 1.1
PROLOGIS
$300,000,000
5.50% Notes due 2013
Underwriting Agreement
dated February 19, 0000
Xxxx xx Xxxxxxx Securities LLC
ABN AMRO Incorporated
Commerzbank Capital Markets Corp.
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
XX Xxxxx Securities Corporation
Wachovia Securities, Inc.
Underwriting Agreement
February 19, 0000
XXXX XX XXXXXXX SECURITIES LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
As Representative of the several Underwriters
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 such Schedule A hereto of $300,000,000 aggregate
principal amount of the Company's 5.50% Notes due 2013 (the "Notes"). Banc of
America Securities LLC ("BAS") has agreed to act as representative of the
several Underwriters (in such capacity, the "Representative") 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 "Indenture"), between the Company and U.S. Bank National Association
(formerly State Street Bank and Trust Company), as trustee (the "Trustee").
Certain terms of the Notes will be established pursuant to Board Resolutions (as
defined in the Indenture) adopted by the Company pursuant to Section 301 of the
Indenture. Notes issued in book-entry form will be issued in the name of Cede &
Co., as nominee of The Depository Trust Company (the "Depositary"), pursuant to
a Letter of Representations, to be dated as of the Closing Date (as defined in
Section 2 below), among the Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (File Nos.
333-79813 and 333-39797) for the registration 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 of the Securities Act. Such registration statement has been declared
effective by the Commission and the Company has filed such post-effective
amendments thereto as may be required prior to the execution of this Agreement
and each such post-effective
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amendment has been declared effective by the Commission. Such registration
statement, as so amended, if applicable, including the exhibits and schedules
thereto and including all documents incorporated by reference therein pursuant
to Item 12 of Form S-3, prior to the execution of this Agreement, is called the
"Registration Statement." Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the "Rule 462(b)
Registration Statement," and from and after the date and time of filing of the
Rule 462(b) Registration Statement, the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus and the
final prospectus supplement relating to the offering of the Notes, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Notes, including all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 prior to the execution of this
Agreement, are collectively called the "Prospectus." All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
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 "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) 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 or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (collectively, the
"Exchange Act") which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
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 follows:
(a) Compliance with Registration Requirements. The Company meets the
requirements for the use of Form S-3 under the Securities Act. The Registration
Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied
to the Commission's satisfaction with all requests of the Commission for
additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
The Prospectus when filed complied when so filed in all material
respects with the Securities Act and the Prospectus delivered to the
Underwriters for use in connection with the offer and sale of the Notes will, at
the time of such delivery, be identical to any copies filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act). Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto (including the
filing of the Company's most
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recent Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")), at the time it became effective and at all subsequent times,
complied and will comply in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Trust Indenture Act") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as amended or supplemented, as of its
date and at all subsequent times, did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification ("Form T-1") under the Trust Indenture Act of the Trustee and
statements in or omissions from the Registration Statement, including any Rule
462(b) Registration Statement or any post-effective amendment to the
Registration Statement, or the Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by the Representative
expressly for use therein. There are no contracts or other documents required to
be described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the respective times they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
Exchange Act, and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date (as defined
herein), did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) 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
Prospectus or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(e) Authorization of the Indenture. The 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.
(f) 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
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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.
(g) Description of the Notes and the Indenture. The Notes and the
Indenture conform in all material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus.
(h) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business or entered into any material transaction or
agreement not in the ordinary course of business; and (iii) except for regularly
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.
(i) Independent Accountants. Xxxxxx Xxxxxxxx LLP, who have expressed
their opinion with respect to the audited financial statements for the fiscal
years ended December 31, 1999, 2000 and 2001 and supporting schedules
incorporated by reference in the Registration Statement and the Prospectus,
were, at the time each such opinion was issued, independent public or certified
public accountants within the meaning of Regulation S-X under the Securities Act
and the Exchange Act. KPMG LLP, who have conducted a review in accordance with
Statement of Auditing Standards No. 71 with respect to the unaudited financial
statements for the periods ended March 31, 2002, June 30, 2002 and September 30,
2002 incorporated by reference in the Registration Statement and the Prospectus,
are independent public or certified public accountants within the meaning of
Regulation S-X under the Securities Act and the Exchange Act.
(j) Preparation of the Financial Statements. The financial statements,
together with the related notes thereto, incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the periods
specified. The supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. Such financial
statements and supporting schedules have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied
on a consistent basis throughout the periods involved, except as may be
expressly
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stated in the related notes thereto. No other financial statements or supporting
schedules are required to be included in the Registration Statement.
(k) 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 standing under the laws of the State of Maryland and has the trust power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under each of this Agreement, the Notes and the Indenture. 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.
(l) Incorporation and Good Standing of Significant Subsidiaries. Each
subsidiary and joint venture of the Company listed on Schedule B (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 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 meet the criteria in the
definition of "significant subsidiary" pursuant to Rule 1-02(w) of Regulation
S-X under the Securities Act. The corporations, trusts and other entities listed
on Schedule B are considered to be subsidiaries of the Company solely for
purposes of this Agreement.
(m) 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.
(n) 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,
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result in a Material Adverse Change. Neither the Company nor any of its
subsidiaries is in default (or, with the giving of notice or lapse of time or
both, would be in default) ("Default") under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any of
its subsidiaries is subject (each, an "Existing Instrument"), except for such
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change. The Company's execution, delivery and performance of this
Agreement and the Indenture, and the issuance and delivery of the Notes, and
consummation of the transactions contemplated hereby and by the Prospectus (i)
have been duly authorized by all necessary trust action and will not result in
any violation of the provisions of the declaration of trust (or charter or
by-laws or other similar constitutive documents) of the Company or any
subsidiary, except, in the case of subsidiaries of the Company, for such
violations as would not, individually or in the aggregate, result in a Material
Adverse Change, (ii) will not conflict with or constitute a breach of, or
Default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary, except for such violation as would not,
individually or in the aggregate, result in a Material Adverse Change. No
consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is
required for the Company's execution, delivery and performance of this Agreement
or the Indenture, or the issuance and delivery of the Notes, or consummation of
the transactions contemplated hereby or thereby and by the Prospectus, except
such as have been obtained or made by the Company and are in full force and
effect under the Securities Act, the Trust Indenture Act, applicable state
securities or blue sky laws and from the National Association of Securities
Dealers, Inc. (the "NASD"), the failure of which to obtain would not result in a
Material Adverse Change or have a material adverse effect on the consummation of
the transactions contemplated by this Agreement.
(o) No Material Actions or Proceedings. Except as otherwise disclosed
in the Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge, threatened (i)
against or affecting the Company or any of its subsidiaries, (ii) which has as
the subject thereof any officer or director of, or property owned or leased by,
the Company or any of its subsidiaries or (iii) relating to environmental or
discrimination matters, where in any such case (A) there is a reasonable
possibility that such action, suit or proceeding might be determined adversely
to the Company or such subsidiary and (B) any such action, suit or proceeding,
if so determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the best of the Company's
knowledge, is threatened or imminent, except for such disputes as would not,
individually or in the aggregate, result in a Material Adverse Change.
(p) Intellectual Property Rights. The Company and its Significant
Subsidiaries own or possess sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses,
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approvals, trade secrets and other similar rights (collectively, "Intellectual
Property Rights") reasonably necessary to conduct their businesses as now
conducted; and the expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change. Neither the Company nor
any of its Significant Subsidiaries has received any notice of infringement or
conflict with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change. The Company is not a party to or bound by
any options, licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set forth in the
Prospectus and are not described in all material respects. None of the
technology employed by the Company has been obtained or is being used by the
Company in violation of any contractual obligation binding on the Company or, to
the Company's knowledge, any of its officers, 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.
(q) 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.
(r) Title to Properties. Except as otherwise disclosed in the
Prospectus, the Company and each of its subsidiaries has good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(j) above (or elsewhere in 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.
(s) 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(k) 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
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amended, and the regulations and published interpretations thereunder (the
"Internal Revenue Code") and the Company's present and contemplated
organizational ownership, method of operation, assets and income are such that
the Company will continue to meet such requirements; ProLogis Limited
Partnership-I, ProLogis Limited Partnership-II, ProLogis Limited Partnership-III
and ProLogis Limited Partnership-IV are properly treated as partnerships for
federal income tax purposes and not as "associations taxable as corporations."
(t) Company Not an "Investment Company." The Company is not, and after
receipt of payment for the Notes will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(u) 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.
(v) 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.
(w) 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
required to be disclosed in the Prospectus.
(x) 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
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respect to which the Company has received written notice, no investigation with
respect to which the Company has received written notice, and no written notice
by any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out of, based
on or resulting from the presence, or release into the environment, of any
Material of Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law.
(y) 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.
(z) Partnership Agreements. Each of the partnership agreements (the
"Partnership Agreements") of ProLogis Limited Partnership-I, ProLogis Limited
Partnership-II, ProLogis Limited Partnership-III and ProLogis Limited
Partnership-IV described in the Company's Annual Report on Form 10-K
incorporated by reference in the Registration Statement and the Prospectus has
been duly authorized, executed and delivered by the Company or a wholly owned
9
subsidiary thereof 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.
Any certificate signed by an officer of the Company and delivered to
the Representative or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
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 99.35% of the principal amount thereof payable
on the Closing Date.
(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 (or such other place as may be agreed to by
the Company and the Representative) at 9:00 a.m., New York City time, on
February 24, 2003, 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").
(c) Public Offering of the Notes. The Representative hereby advises the
Company that the Underwriters intend to offer for sale to the public, as
described in the Prospectus, their respective portions of the Notes as soon
after this Agreement has been executed as the Representative, in its sole
judgment, has 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 Representative has been authorized, for its
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Notes the
Underwriters have agreed to purchase. The Representative 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 Representative 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.
10
(e) Delivery of the Notes. The Company shall deliver, or cause to be
delivered, to the Representative for the accounts of the several Underwriters
certificates for 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 certificates for the Notes shall be in such denominations
and registered in such names and denominations as the Representative 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 Representative 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.
(f) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m.
on the second business day following the date the Notes are first released by
the Underwriters for sale to the public, the Company shall deliver, or cause to
be delivered, copies of the Prospectus in such quantities and at such places as
the Representative shall request.
SECTION 3. Additional Covenants. The Company further covenants and agrees
with each Underwriter as follows:
(a) Representative's Review of Proposed Amendments and Supplements. During
such period beginning on the date hereof 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
by an Underwriter or dealer (the "Prospectus Delivery Period"), prior to
amending or supplementing the Registration Statement (including any registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus
(including any amendment or supplement through incorporation by reference of any
report filed under the Exchange Act), the Company shall furnish to the
Representative for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or supplement to
which the Representative reasonably objects.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representative in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from,
the Commission with respect to the Registration Statement and, until the date of
completion of the distribution of the offering of the Notes, any document filed
with the Commission by the Company pursuant to the Exchange Act, (ii) of the
time and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to the Prospectus, (iii) of the time
and date that any post-effective amendment to the Registration Statement becomes
effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of any order preventing or suspending the use of the
Prospectus, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment. Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b), 430A and 434, as applicable, under the
Securities Act and will use its best efforts to confirm that any filings made by
the Company under such Rule 424(b) were received in a timely manner by the
Commission.
11
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If, during the Prospectus Delivery Period, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading, or if in the opinion of the Representative or counsel for the
Underwriters it is otherwise necessary to amend or supplement the Prospectus to
comply with law, the Company agrees to promptly prepare (subject to Section 3(a)
hereof), file with the Commission and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The Company
agrees to furnish the Representative, without charge, during the Prospectus
Delivery Period, as many copies of the Prospectus and any amendments and
supplements thereto as the Representative may reasonably request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representative 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
Representative, 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 Representative 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.
(f) 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 Prospectus.
(g) Depositary. The Company will 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.
(h) Earning Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representative an earning
statement (which need not be audited) that satisfies the provisions of Section
11(a) of the Securities Act.
(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.
12
(j) Company to Provide Interim Financial Statements. Prior to the Closing
Date, the Company will furnish the Underwriters, as soon as they have been
prepared by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the Registration
Statement and the Prospectus.
(k) 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 BAS (which consent may be withheld at
the sole discretion of BAS), 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).
BAS, on behalf of the several Underwriters, may, in its 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), the Prospectus, and all amendments and supplements
thereto, and this Agreement, the Indenture 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
Representative, preparing a "Blue Sky Survey" or memorandum, and any supplements
thereto, advising the Underwriters of such qualifications, registrations and
exemptions, (vi) the filing fees incident to the NASD's review and approval of
the Underwriters' participation in the offering and distribution 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
13
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 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) Accountants' Comfort Letter. On the date hereof, the Representative
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 Representative with
respect to the audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD. For the period from and after effectiveness of this Agreement and
prior to the Closing Date:
(i) The Company shall have filed the Prospectus with the Commission in
the manner and within the time period required by Rule 424(b) under the
Securities Act;
(ii) no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment to the Registration Statement shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by
the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) 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 Representative 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.
(d) Opinion of Counsel for the Company. On the Closing Date, the
Representative shall have received the favorable opinion of Mayer, Brown, Xxxx &
Maw, counsel for the Company, dated as of such Closing Date, the form of which
is attached as Exhibit A.
14
(e) Opinion of General Counsel of the Company. On the Closing Date, the
Representative shall have received the favorable opinion of Xxxxxx X. Xxxxxxx,
Managing Director and General Counsel of the Company, dated as of such Closing
Date, the form of which is attached as Exhibit B.
(f) Opinion of Counsel for the Underwriters. On the Closing Date, the
Representative shall have received the favorable opinion of Shearman & Sterling,
counsel for the Underwriters, dated as of such Closing Date, with respect to
such matters as may be reasonably requested by the Underwriters.
(g) Officers' Certificate. On the Closing Date, the Representative shall
have received a written certificate executed by the Chairman of the Board, Chief
Executive Officer or a Managing Director of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of such Closing
Date, to the effect set forth in subsections (b)(ii) and (c)(ii) of this Section
5, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior
to such Closing Date, there has not occurred any Material Adverse Change;
(ii) 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 such Closing Date;
and
(iii) 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 such Closing Date.
(h) Bring-down Comfort Letter. On the Closing Date, the Representative
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 Representative, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a) 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.
(i) Additional Documents. On or before the Closing Date, the Representative
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.
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 Representative
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.
15
SECTION 6. Reimbursement of Underwriters' Expenses. If this Agreement is
terminated by the Representative 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 Representative 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 Representative 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. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its 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 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 the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) in whole or
in part upon any inaccuracy in the representations and warranties of the Company
contained herein; or (iv) in whole or in part upon any failure of the Company to
perform its obligations hereunder or under law; and to reimburse 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 BAS) as such expenses are reasonably incurred by such Underwriter or such
officer, employee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Representative expressly for use in the Registration Statement 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.
16
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, 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
director, 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 or the
Prospectus (or any amendment or supplement thereto), or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished
to the Company by the Representative expressly for use therein; and to reimburse
the Company, or any such director, officer or controlling person for any legal
and other expense reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The Company hereby acknowledges that the only information
that the Underwriters have furnished to the Company expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the second, third and seventh
paragraphs and the last sentence of the eighth paragraph under the caption
"Underwriting" in the Prospectus; and the Underwriters confirm that such
statements are correct. 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 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
17
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 (BAS 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 includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
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 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
18
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 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 director 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.
19
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 number of Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Notes set forth opposite their respective names on Schedule A bears to the
aggregate number of Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by
the Representative with the consent of the non-defaulting Underwriters, to
purchase the 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 Notes and the
aggregate number of Notes with respect to which such default occurs exceeds 10%
of the aggregate number of Notes to be purchased on such date, and arrangements
satisfactory to the Representative 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
Representative 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 and 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. Prior to the Closing Date, this
Agreement may be terminated by the Representative 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 the NASD; (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 Representative is material and adverse and makes it
impracticable or inadvisable to market the Notes in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities;
(iv) in the judgment of the Representative 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 Representative and
the Underwriters pursuant to Sections 4 and 6 hereof, (b) any Underwriter to
20
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 Representative:
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Transaction Services
with a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Transaction Services
and
Shearman & Sterling
000 Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
If to the Company:
ProLogis
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
21
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxx Xxxxx Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
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 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. 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.
22
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 and the Prospectus (and any amendments and
supplements thereto), as required by the Securities Act and the Exchange Act.
23
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/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director and
Chief Financial Officer
24
The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Representative as of the date first above written.
BANC OF AMERICA SECURITIES LLC
Acting as Representative of the several
Underwriters named in the attached Schedule A
By: /s/ Xxxx Xxxxx
----------------
Name: Xxxx Xxxxx
Title: Principal
25
SCHEDULE A
Aggregate
Principal
Amount of
Notes to be
Underwriters Purchased
--------------------------------------------------------------- ------------
Banc of America Securities LLC ................................ $180,000,000
ABN AMRO Incorporated ......................................... 24,300,000
Commerzbank Capital Markets Corp. ............................. 24,300,000
X.X. Xxxxxx Securities Inc. ................................... 24,300,000
Xxxxxx Xxxxxxx & Co. Incorporated ............................. 24,300,000
XX Xxxxx Securities Corporation ............................... 11,400,000
Wachovia Securities, Inc. ..................................... 11,400,000
------------
Total ................................................ $300,000,000
============
SCHEDULE B
LIST OF SIGNIFICANT SUBSIDIARIES
ProLogis Development Services Incorporated*
ProLogis Limited Partnership I*
ProLogis Limited Partnership II*
ProLogis Limited Partnership III*
ProLogis Limited Partnership IV*
ProLogis IV, Inc.*
ProLogis-North Carolina Limited Partnership*
PLD International Incorporated*
ProLogis Mexico Trust*
ProLogis-DS Mexico Incorporated*
ProLogis California LLC*
ProLogis UK Holdings S.A.
ProLogis Japan Incorporated*
PLD/RECO Japan TMK Property Trust
ProLogis European Properties Fund
ProLogis North American Properties Fund I LLC*
ProLogis First U.S. Properties LP*
ProLogis Second U.S. Properties LP*
ProLogis Third U.S. Properties LP*
ProLogis-Macquarie Fund*
* Denotes U.S. Significant Subsidiary.
EXHIBIT A
[The final opinion in draft form should be attached as Exhibit A at the time
this Agreement is executed.]
Opinion of counsel for the Company to be delivered pursuant to Section 5(d)
of the Underwriting Agreement.
References to 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 Prospectus and to enter into and
perform its obligations under each of this Agreement, the Notes and the
Indenture. 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) This Agreement has been duly authorized, executed and delivered by the
Company.
(iii) The 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.
(iv) 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.
(v) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective by the Commission under the Securities
Act. To the best knowledge of such counsel, (a) no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and (b) no proceedings for such purpose have been instituted or are pending
or are contemplated or threatened by the Commission. Any required filing of 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).
A-1
(vi) The Registration Statement, the Prospectus, including any document
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and the Prospectus, including any document incorporated
by reference therein (other than the financial statements and supporting
schedules included or incorporated by reference therein or in exhibits to or
excluded from the Registration Statement and other than the Form T-1, as to
which no opinion need be rendered), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act.
(vii) The Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Prospectus.
(viii) The statements (A) in the base prospectus under the captions "Risk
Factors--Federal Income Tax Risks," "Description of Debt Securities" and
"Federal Income Tax Considerations" (B) in the prospectus supplement under the
caption "Description of the Notes" and (C) incorporated by reference in 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.
(ix) 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 the Underwriting
Agreement and consummation of the transactions contemplated thereby and by the
Prospectus, except as required under the Securities Act, Trust Indenture Act,
applicable state securities or blue sky laws and from the NASD 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.
(x) The execution and delivery of each of this Agreement and the Indenture,
and the issuance and delivery of the Notes by the Company and the performance by
the Company of its obligations thereunder (other than performance by the Company
of its obligations under the indemnification section of this 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 any Significant Subsidiary
incorporated or organized in a jurisdiction located in the United States and so
designated on Schedule B to this 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 any of its U.S. Significant Subsidiaries
pursuant to, (x) the Credit Agreement, dated as of September 8, 2002, by and
among the Company, ProLogis Development Services Incorporated, Bank of America,
N.A. and the Lenders named therein, (y) the Credit Agreement, dated as of
November 8, 2002, by and among the Company, the Subsidiary Borrowers party
thereto, Bank of America, N.A. and the Lenders named therein (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,
A-2
will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company 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.
(xi) The Company is not, and after receipt of payment for the Notes will
not be, an "investment company" within the meaning of Investment Company Act.
(xii) 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, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001 and 2002, 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,
2003 and in the future; ProLogis Limited Partnership-I, ProLogis Limited
Partnership-II, ProLogis Limited Partnership-III and ProLogis Limited
Partnership-IV are properly treated as (A) partnerships for federal income tax
purposes and (B) not as "associations taxable as corporations."
(xiii) The investments of the Company described in 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 and the
Prospectus, and any supplements or amendments thereto, and related matters were
discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (other than as
specified above), and any supplements or amendments thereto, on the basis of the
foregoing, no facts have come to their attention that lead them to believe that
(i) (except for the financial statements, supporting schedules and other
financial or statistical data included therein or derived or omitted therefrom,
and except for the Form T-1 as to which such counsel need express no belief)
either the Registration Statement or any amendments thereto, at the time the
most recent post-effective amendment to the Registration Statement (including
the filing of the Company's Annual Report on Form 10-K with the Commission),
when such part became effective or as of the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (ii) (except for the financial statements, supporting
schedules and other financial or statistical data included therein or derived or
omitted therefrom as to which such counsel need express no belief) the
Prospectus or any amendment or supplement thereto, as of its date, at the date
of any such amendment or supplement or at the Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of
A-3
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 Representative) 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 opinion of
general counsel of the Company referred to in Section 5(e) 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 this Agreement. In rendering the
opinions contained in paragraph (xii), 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.
A-4
EXHIBIT B
[The final opinion in draft form should be attached as Exhibit B at the time
this Agreement is executed.]
Opinion of the General Counsel of the Company to be delivered pursuant to
Section 5(e) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A 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 Prospectus. Each U.S.
Significant Subsidiary is duly qualified as a foreign corporation, trust or
partnership 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, 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 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 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.
