CONTROLLED EQUITY
OFFERING SM
CANTOR
FITZGERALD & CO.
135 East 57th Street
New York, NY 10022
ProLogis, a
Maryland statutory real estate investment trust (the “
Company ”), confirms its agreement
(“Agreement”) with Cantor Fitzgerald & Co. (“
CF&Co ”), as follows:
1.
Issuance and Sale of Shares . The Company agrees that, from
time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it will issue and sell
through CF&Co, acting as agent and/or principal, 15,000,000
common shares of beneficial interest, par value $0.01 per share
(the “ Shares ”), of the Company.
Notwithstanding anything to the contrary contained herein, the
parties hereto agree that the Company shall have the sole
responsibility to monitor the number and aggregate sale price of
Shares issued and sold under this Agreement and to issue and sell
Shares within such limitations, and CF&Co shall have no
responsibility in connection therewith. The issuance and sale of
Shares through CF&Co will be effected pursuant to a
registration statement on Form S-3 (File No. 333-132616) (the
“ Registration Statement ”) filed by the Company
and which became effective upon filing with Securities and Exchange
Commission (the “ Commission ”).
2.
Placements . Each time that the Company wishes to issue and
sell Shares hereunder (each, a “ Placement ”),
it will notify CF&Co by email notice (or other method mutually
agreed to in writing by the parties) of the number of Shares (the
“ Placement Shares ”) to be issued, the type of
Shares, the time period during which sales are requested to be
made, any minimum price below which sales may not be made (a
“ Placement Notice ”), the form of which is
attached hereto as Schedule 2 . The Placement Notice
shall originate from any of the individuals from the Company set
forth on Schedule 3 , and shall be addressed to each of
the individuals from CF&Co set forth on Schedule 3
, as such Schedule 3 may be amended from time to time.
The Placement Notice shall be effective unless and until
(i) CF&Co declines to accept the terms contained therein
for any reason, in its sole discretion, (ii) the entire amount
of the Placement Shares have been sold or (iii) the Agreement
has been terminated under the provisions of Section 11
. In connection with the sale of the Placement Shares, the Company
shall pay CF&Co compensation in an amount of up to two and
one-quarter percent (2.25%) of gross proceeds of the sale of such
Placement Shares as mutually agreed to by the Company and CF&Co
at the time of the applicable Acceptance (as defined below)
. It is expressly acknowledged and agreed that
neither
the Company nor
CF&Co will have any obligation whatsoever with respect to a
Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to CF&Co and CF&Co does not
decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein
(an “ Acceptance ”). In the event of a conflict
between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by CF&Co. Subject to the terms and
conditions of this Agreement, upon the Acceptance of a Placement
Notice, and unless the sale of the Placement Shares described
therein has been suspended or otherwise terminated in accordance
with the terms of this Agreement, CF&Co will use its
commercially reasonable efforts consistent with its normal trading
and sales practices to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such
Placement Notice. CF&Co will provide written confirmation to
the Company no later than the opening of the Trading Day next
following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to CF&Co
with respect to such sales, and the Net Proceeds (as defined below)
payable to the Company. CF&Co may sell any Placement Shares in
privately negotiated transactions and/or any other method permitted
by law, including sales made directly on the New York Stock
Exchange, the then existing trading market for the Shares or sales
made to or through a market maker or through an electronic
communications network, or in any other manner that may be deemed
to be an “at the market” offering as defined in
Rule 415 of the Securities Act of 1933, as amended and the
rule and regulations promulgated thereunder (the “ Act
”). The Company acknowledges and agrees that (i) there
can be no assurance that CF&Co will be successful in selling
Placement Shares, and (ii) CF&Co will incur no liability
or obligation to the Company or any other person or entity if it
does not sell Placement Shares for any reason other than a failure
by CF&Co to use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof,
“ Trading Day ” means any day on which Shares
are purchased and sold on the principal market on which the Shares
are listed or quoted.
4.
Suspension of Sales . The Company or CF&Co may, upon
notice to the other party in writing (including by email) or by
telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided,
however, that such suspension shall not affect or impair either
party’s obligations with respect to any Placement Shares sold
hereunder prior to the receipt of such notice. The Company agrees
that no such notice shall be effective against CF&Co unless it
is made to one of the individuals named on Schedule 3
hereto, as such Schedule may be amended in writing from time to
time.
(a)
Settlement of Placement Shares . Unless otherwise specified
in the applicable Placement Notice, settlement for sales of
Placement Shares will occur on the third (3
rd ) Trading Day (or such other day as is industry
practice for regular-way trading) following the date on which such
sales are made (each a “ Settlement Date ”). The
amount of proceeds to be delivered to the Company on a Settlement
Date against the receipt of the Placement Shares sold (“
Net Proceeds ”) will be equal to the aggregate sales
price at which such Placement Shares were sold,
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after deduction
for (i) CF&Co’s commission, discount, or other
compensation for such sales payable by the Company in accordance
with Section 2, (ii) any other amounts due and payable by
the Company to CF&Co hereunder and (iii) any transaction
fees imposed by the Commission pursuant to Section 31 of the
Securities Exchange Act of 1934, as amended and the rules and
regulations thereunder (the “ Exchange Act ”),
in respect of such sale.
(b)
Delivery of Shares . On or before each Settlement Date, the
Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting
CF&Co’s or its designee’s account at The Depository
Trust Company through its Deposit Withdrawal Agent Commission
System or by such other means of delivery as may be mutually agreed
upon by the parties hereto and, upon receipt of such Placement
Shares, which in all cases shall be freely tradeable, transferable,
registered shares in good deliverable form, CF&Co will deliver
the related Net Proceeds in immediately available funds delivered
to an account designated by the Company prior to the Settlement
Date. If the Company defaults in its obligation to deliver
Placement Shares on a Settlement Date, the Company agrees that in
addition to and in no way limiting the rights and obligations set
forth in Section 9(a) hereto, it will (i) hold CF&Co
harmless against any loss, claim, damage, or expense (including
reasonable legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company and (ii) pay to
CF&Co any commission, discount, or other compensation to which
it would otherwise have been entitled absent such
default.
6.
Representations and Warranties of the Company . The Company
represents and warrants to CF&Co as follows:
(a) The
Company meets the requirements for the use of Form S-3 under the
Act. The Registration Statement has become effective under the Act.
The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such
purpose have been instituted or are pending or, to the best
knowledge of the Company, are contemplated or threatened by the
Commission.
The
form of prospectus contained in the registration statement (as
amended or supplemented the “ Prospectus ”) when
filed complied when so filed in all material respects with the Act
and the Prospectus delivered to CF&Co for use in connection
with the offer and sale of the Shares will, at the time of such
delivery, be identical to any copies filed by electronic
transmission pursuant to the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (“ EDGAR
”) (except as may be permitted by Regulation S-T under
the Act). Each of the Registration Statement and any post-effective
amendment thereto (including the filing of the Company’s most
recent Annual Report on Form 10-K with the Commission (the “
Annual Report on Form 10-K ”)), at the most
recent deemed effective date pursuant to Rule 430B(f)(2) under
the Act prior hereto, complied and will comply in all material
respects with the Act and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus as of its date and at all
subsequent times, did not and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances 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
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the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (“ Form T-1
”) under the Trust Indenture Act of 1939, as amended and the
rules and regulations promulgated thereunder, of the Trustee and
statements in or omissions from the Registration Statement,
including any post-effective amendment to the Registration
Statement, or the Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with information
relating to CF&Co furnished to the Company in writing by the
CF&Co expressly for use therein. There are no contracts or
other documents required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement which have not been
described or filed as required.
(b) The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus, at the respective
times they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the Exchange Act and, when read together with the
other information in the Prospectus, at the date of the Prospectus
and at the Settlement Date (as defined herein), did not and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) The
Company has not distributed and will not distribute, prior to the
later of the applicable Settlement Date and the completion of
CF&Co’ distribution of the Shares, any offering material
in connection with the issuance and sale of the Shares other than
the Prospectus or the Registration Statement.
(d) This
Agreement has been duly authorized, executed and delivered by the
Company.
(e) The
Shares have been duly authorized and, when issued, delivered and
paid for pursuant to this Agreement, will be validly issued and
fully paid and non-assessable, free and clear of all Encumbrances;
the shares of beneficial interest of the Company, including the
Shares, conform to the description thereof contained in the
Registration Statement and the Shares will conform to the
description thereof contained in the Prospectus as amended or
supplemented. Neither the shareholders of the Company, nor any
other person or entity have any preemptive rights or rights of
first refusal with respect to the Shares or other rights to
purchase or receive any of the Shares or any other securities or
assets of the Company, and no person has the right, contractual or
otherwise, to cause the Company to issue to it, or register
pursuant to the Act, any shares of beneficial interest or other
securities or assets of the Company upon the issuance or sale of
the Shares.
(f) Except
as otherwise disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the
Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or
not arising from transactions in the ordinary course of business,
of the Company and its subsidiaries, considered as one entity (any
such change is called a “ Material Adverse Change
”); (ii) the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business or entered into any material transaction or agreement not
in the ordinary course of business; and (iii) except for
regularly quarterly dividends or distributions on the common stock
or shares or
4
preferred stock
or shares in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or shares or repurchase or redemption by
the Company or any of its subsidiaries of any class of capital
stock or shares.
(g) KPMG
LLP, who have expressed their opinion with respect to the
Company’s audited financial statements for the fiscal years
ended December 31, 2004, 2005 and 2006 incorporated by
reference in the Registration Statement and the Prospectus, are
independent public or certified public accountants within the
meaning of Regulation S-X under the Act and the Exchange Act
and a registered public accounting firm within the meaning of the
Sarbanes-Oxley Act of 2002. PricewaterhouseCoopers LLP, who have
expressed their opinion with respect to the Catellus Development
Corporation’s (“ Catellus ”) audited
financial statements for the fiscal years ended December 31,
2004 incorporated by reference in the Registration Statement and
the Prospectus, were, prior to September 15, 2005 and during
the period covered by the financial statements of Catellus for
which they reported, independent public or certified public
accountants with respect to Catellus within the meaning of
Regulation S-X under the Act and the Exchange Act and a
registered public accounting firm within the meaning of the
Sarbanes-Oxley Act of 2002.
(h) The
financial statements, together with the related notes thereto,
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of
the Company and its subsidiaries as of and at the dates indicated
and the results of their operations and cash flows for the periods
specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein. Such financial statements and supporting schedules have
been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other financial statements
or supporting schedules are required to be included in the
Registration Statement.
(i) The
Company has been duly organized and is validly existing as a real
estate investment trust in good standing under the laws of the
State of Maryland and has the trust power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under each of this Agreement. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change.
(j) Each
subsidiary and joint venture of the Company listed on
Schedule 1 (collectively, the “Significant
Subsidiaries”) has been duly incorporated or organized, as
the case may be, and is validly existing as a corporation, trust,
limited liability company or partnership and (except as to any
general partnership) in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may
be, and has the power (corporate or other) and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus. Each Significant Subsidiary is duly
qualified as a foreign corporation, trust, limited
5
liability
company 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) non-assessable; all shares of outstanding capital stock and
other equity interests of each Significant Subsidiary held by the
Company, directly or through subsidiaries, are owned free and clear
of any security interest, mortgage, pledge, lien, encumbrance or
claim, except for the pledge of such capital stock or other
interests to secure borrowings of the Company or one of its wholly
owned subsidiaries. The subsidiaries of the Company listed on
Schedule 1 are the only subsidiaries of the Company
that are material to the condition, financial or otherwise, or the
earnings, business, operations or prospects of the Company and its
subsidiaries, considered as one entity, and include all
subsidiaries of the Company which meet the criteria in the
definition of “significant subsidiary” pursuant to
Rule 1-02(w) of Regulation S-X under the Act. The
corporations, trusts, limited liability companies, partnerships and
other entities listed on Schedule 1 are considered to
be subsidiaries of the Company solely for purposes of this
Agreement.
(k) Neither
the Company nor any of its subsidiaries is in violation of its
declaration of trust (or charter or by-laws or other similar
constitutive documents), except, in the case of subsidiaries of the
Company, for such violations as would not, individually or in the
aggregate, result in a Material Adverse Change. Neither the Company
nor any of its subsidiaries is in default (or, with the giving of
notice or lapse of time or both, would be in default) (“
Default ”) under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its subsidiaries
is subject (each, an “ Existing Instrument ”),
except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement, and the
issuance and delivery of the Shares, and consummation of the
transactions contemplated hereby and by the Prospectus
(i) have been duly authorized by all necessary trust action
and will not result in any violation of the provisions of the
declaration of trust (or charter or by-laws or other similar
constitutive documents) of the Company or any subsidiary, except,
in the case of subsidiaries of the Company, for such violations as
would not, individually or in the aggregate, result in a Material
Adverse Change, (ii) will not conflict with or constitute a
breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument,
except for such conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative
or court decree applicable to the Company or any subsidiary, except
for such violation as would not, individually or in the aggregate,
result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and
performance of this Agreement, or the issuance and delivery of the
Shares, or
6
consummation of
the transactions contemplated hereby and by the Prospectus, except
such as have been obtained or made by the Company and are in full
force and effect under the Act, applicable state securities or blue
sky laws and from the NASD, the failure of which to obtain would
not result in a Material Adverse Change or have a material adverse
effect on the consummation of the transactions contemplated by this
Agreement.
(l) Except
as otherwise disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best
of the Company’s knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, (ii) which
has as the subject thereof any officer or director of, or property
owned or leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely
to the Company or such subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the
Company’s knowledge, is threatened or imminent, except for
such disputes as would not, individually or in the aggregate,
result in a Material Adverse Change.
(m) The
Company and its Significant Subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets and other similar rights
(collectively, “ Intellectual Property Rights ”)
reasonably necessary to conduct their businesses as now conducted;
and the expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change. Neither the
Company nor any of its Significant Subsidiaries has received any
notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material
Adverse Change. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual
Property Rights of any other person or entity that are required to
be set forth in the Prospectus and are not described in all
material respects. None of the technology employed by the Company
has been obtained or is being used by the Company in violation of
any contractual obligation binding on the Company or, to the
Company’s knowledge, any of its officers, trustees or
employees or otherwise in violation of the rights of any persons,
except for such violations as would not, individually or in the
aggregate, result in a Material Adverse Change.
(n) The
Company and each subsidiary possess such valid and current
certificates, authorizations, permits, licenses, approvals,
consents and other authorizations issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, and neither the Company nor
any subsidiary has received any notice of proceedings relating to
the revocation or modification of, or non-compliance with, any such
certificate, authorization, permit, license, approval, consent or
other authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result
in a Material Adverse Change.
(o) Except
as otherwise disclosed in the Prospectus, the Company and each of
its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial
statements referred to in Section 6(h) above (or elsewhere in the
Prospectus), in
7
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.
(p) The
Company and its subsidiaries have filed all material federal, state
and foreign income and franchise tax returns or have properly
requested extensions thereof and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as
may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in
Section 6(h) above in respect of all federal, state and foreign
income and franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been
finally determined. With respect to all tax periods in respect of
which the Internal Revenue Service is or will be entitled to any
claim, the Company has met the requirements for qualification as a
real estate investment trust under Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended, and the regulations
and published interpretations thereunder (the “ Internal
Revenue Code ”) and the Company’s present and
contemplated organizational ownership, method of operation, assets
and income are such that the Company will continue to meet such
requirements; ProLogis Limited Partnership-I, ProLogis Limited
Partnership-III and ProLogis Limited Partnership-IV are properly
treated as partnerships for federal income tax purposes and not as
“associations taxable as corporations.”
(q) The
Company is not, and after receipt of payment for the Shares will
not be, an “investment company” within the meaning of
the Investment Company Act of 1940, as amended and the rules and
regulations promulgated thereunder.
(r) Each
of the Company and its subsidiaries taken as a whole carry or are
covered by insurance in such amounts covering such risks as are
generally deemed adequate and customary for their businesses. The
Company has no reason to believe that it or any subsidiary will not
be able (i) to renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost
that would not result in a Material Adverse Change.
(s) Neither
the Company nor any of its Significant Subsidiaries nor, to the
best of the Company’s knowledge, any employee or agent of the
Company or any Significant Subsidiary, has made any contribution or
other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus.
(t) Except
as would not, individually or in the aggregate, result in a
Material Adverse Change (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or
foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface
8
or subsurface
strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum
products (collectively, “ Materials of Environmental
Concern ”), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern
(collectively, “ Environmental Laws ”), which
violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations required for the
operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries
received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that
the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority with respect to
which the Company has received written notice, no investigation
with respect to which the Company has received written notice, and
no written notice by any person or entity alleging potential
liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages,
personal injuries, attorneys’ fees or penalties arising out
of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any
location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, “
Environmental Claims ”), pending or, to the best of
the Company’s knowledge, threatened against the Company or
any of its subsidiaries or any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law;
and (iii) to the best of the Company’s knowledge, there
are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge, presence or disposal of any Material
of Environmental Concern, that reasonably could result in a
violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries
or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of
law.
(u) The
Company and its subsidiaries and any “employee benefit
plan” (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, “
ERISA ”)) established or maintained by the Company,
its subsidiaries or their ERISA Affiliates (as defined below) are
in compliance in all material respects with ERISA. “ERISA
Affiliate” means, with respect to the Company or a
subsidiary, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code, of which the Company or such subsidiary is a member. No
“reportable event” (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates. No
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates, if
such “employee benefit plan” were terminated, would
have any “amount of unfunded benefit liabilities” (as
defined under ERISA). Neither the Company, its subsidiaries nor any
of their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any “employee benefit
plan,” (ii)
9
Sections 412, 4971 or 4975 of the Internal
Revenue Code, or (iii) Section 4980B of the Internal
Revenue Code with respect to the excise tax imposed thereunder.
Each “employee benefit plan” established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter
from the Internal Revenue Service and nothing has occurred, whether
by action or failure to act, which is reasonably likely to cause
disqualification of any such employee benefit plan under Section
401(a) of the Internal Revenue Code.
Any
certificate signed by an officer of the Company and delivered to
CF&Co or its counsel shall be deemed to be a representation and
warranty by the Company to CF&Co as to the matters set forth
therein.
The
Company acknowledges that CF&Co and, for purposes of the
opinions to be delivered pursuant to Section 8 hereof, counsel
for the Company, will rely upon the accuracy and truthfulness of
the foregoing representations and hereby consents to such
reliance.
7.
Covenants of the Company . The Company covenants and agrees
with CF&Co that:
(a) After
the date of this Agreement and during the period in which a
prospectus relating to the Shares is required to be delivered by
CF&Co under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the
Act), the Company will notify CF&Co promptly of the time when
any subsequent amendment to the Registration Statement relating to
the registration and issuance of the Shares pursuant to this
Agreement has been filed with the Commission and has become
effective or any subsequent supplement to the Prospectus has been
filed and of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or for
additional information; it will prepare and file with the
Commission, promptly upon CF&Co’s reasonable request, any
amendments or su
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