Banc of America Securities LLC
Citigroup Global Markets Inc.
Greenwich Capital Markets, Inc.
BANC OF AMERICA
SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
GREENWICH CAPITAL MARKETS, INC.
c/o Banc of
America Securities LLC
Hearst Tower
214 North Tryon Street
Charlotte, North Carolina 28255
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
$550,000,000 aggregate principal amount of the Company’s
5.625% Notes due 2016 (the “Notes”). Banc of America
Securities LLC (“BAS”), Citigroup Global Markets Inc.
and Greenwich Capital Markets, Inc. have agreed to act as
representatives of the several Underwriters (in such capacity, the
“Representatives”) in connection with the offering and
sale of the Notes.
The Notes will be
issued pursuant to an indenture, dated as of March 1, 1995
(the “Indenture”), between the Company and U.S. Bank
National Association (formerly State Street Bank and Trust
Company), as trustee (the “Trustee”), as supplemented
by the first supplemental indenture, dated as of February 9,
2005 (the “First Supplemental Indenture”), the second
supplemental indenture, dated as of November 2, 2005 (the
“Second Supplemental Indenture”) and the third
supplemental indenture, dated as of November 2, 2005 (the
“Third Supplemental Indenture” and together with the
Base Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture, the “Indenture”). Certain terms
of each series of Notes will be established pursuant to Board
Resolutions (as defined in the Indenture) adopted by the Company
pursuant to Section 301 of the Indenture. The Notes will be
issued in book-entry form in the name of Cede & Co., as nominee
of The Depository Trust Company (the “Depositary”),
pursuant to a Letter of Representations, dated December 29,
2003 (as defined in Section 2 below) (the “DTC
Agreement”), between the Company and the
Depositary.
The Company has
prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-132616), which contains a base prospectus dated
August 21, 2006 (the “Base Prospectus”), to be
used in connection with the public offering and sale of debt
securities, including the Notes, and other securities of the
Company under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (collectively, the
“Securities Act”), and the offering thereof from time
to
1
time in
accordance with Rule 415 under the Securities Act. Such
registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it
became effective under the Securities Act, including any required
information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act,
is called the “Registration Statement.” The term
“Prospectus” shall mean the final prospectus supplement
relating to the Notes, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and time that
this Agreement is executed and delivered by the parties hereto. The
term “Preliminary Prospectus” shall mean any
preliminary prospectus supplement relating to the Notes, together
with the Base Prospectus, that is first filed with the Commission
pursuant to Rule 424(b). Any reference herein to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents that are or are deemed
to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act prior to 3:45 p.m. Eastern Time
on November 9, 2006 (the “Initial Sale Time”). All
references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System
(“EDGAR”).
All references in
this Agreement to financial statements and schedules and other
information which is “disclosed,”
“contained,” “included” or
“stated” (or other references of like import) in the
Registration Statement, Prospectus or Preliminary Prospectus shall
be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, Prospectus
or Preliminary Prospectus, as the case may be, prior to the Initial
Sale Time; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or
Preliminary Prospectus shall be deemed to include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), which is or is deemed to be
incorporated by reference in the Registration Statement, Prospectus
or Preliminary Prospectus, as the case may be, after the Initial
Sale Time.
The Notes,
together with certain other senior indebtedness of the Company,
will have the benefit of a pledge of certain collateral (the
“Collateral”) pursuant to (i) that certain Second
Amended and Restated Borrower Pledge Agreement dated as of
October 6, 2005 (the “Borrower Pledge Agreement”)
executed by the Company and Bank of America, N.A., as collateral
agent (the “Collateral Agent”); (ii) each of the
separate Subsidiary Pledge Agreements dated as of October 6,
2005 (collectively, the “Subsidiary Pledge Agreements”;
and, together with the Borrower Pledge Agreement, the “U.S.
Pledge Agreements”) executed by the Collateral Agent and each
of ProLogis Japan Finance Incorporated, ProLogis Japan
Incorporated, ProLogis Development Services Incorporated, ProLogis
Management Incorporated, ProLogis-North Carolina
(2) Incorporated, ProLogis-Monterrey (1) LLC,
ProLogis-Monterrey (2) LLC, ProLogis-Reynosa (1) LLC,
ProLogis-Reynosa (2) LLC (such entities being the “U.S.
Grantors”), ProLogis KK (the “Japanese Grantor”),
ProLogis China Holding II Srl. (the “Barbados
Grantor”); and (iii) that certain Pledge of Intercompany
Receivables dated as of October 6, 2005 executed by PLD Europe
Finance B.V., ProLogis UK Funding B.V., ProLogis UK Finding II B.V.
(such entities being the “Dutch Grantors”; and,
together with the Japanese Grantor and the Barbados Grantor, the
“Foreign Grantors”; and, together with the U.S.
Grantors, the Japanese Grantor and the Barbados Grantor, the
“Subsidiary Grantors”; and the Subsidiary
2
Grantors
together with the Company, the “Grantors”), and the
Collateral Agent (the “Intercompany Pledge Agreement”;
and, together with the U.S. Pledge Agreements, the “Pledge
Agreements”) The rights, duties, authority and
responsibilities of the Collateral Agent and the relationship among
the Credit Parties (which includes, without limitation, the holders
of debt securities issued under the Indenture, including the Notes)
regarding their pari passu interests in the collateral is governed
by that certain Amended and Restated Security Agency Agreement,
dated as of October 6, 2005 (the “Security Agency
Agreement”) among the Company, Collateral Agent and Bank of
America, N.A., as Global Administrative Agent (the
“Administrative Agent”). The Security Agency Agreement,
the Pledge Agreements and any related security documents are
referred to herein collectively as the “Security
Documents.”
The Company hereby
confirms its agreements with the Underwriters as
follows:
Section 1.
Representations and Warranties . The Company hereby
represents, warrants and covenants to each Underwriter as of the
date hereof, as of the Initial Sale Time and as of the Closing Date
(in each case, a “Representation Date”), as
follows:
(a)
Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated or threatened
by the Commission, and any request on the part of the Commission
for additional or supplemental information has been complied with.
In addition, the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
At the respective
times the Registration Statement and any post-effective amendments
thereto (including the filing of the Company’s most recent
Annual Report on Form 10-K with the Commission (the “Annual
Report on Form 10-K”)) became effective and at each
Representation Date, the Registration Statement and any amendments
thereto (i) complied and will comply in all material respects
with the requirements of the Securities Act and the rules and
regulations of the Commission thereunder (the “Securities Act
Regulations”) and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and (ii) did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus and at the Closing Date, neither the Prospectus nor any
amendments or supplements thereto included or will include an
untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply
to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility on Form T-1 of the Trustee
under the Trust Indenture Act (the “Form T-1”) and
(ii) statements in or omissions from the Registration
Statement or any post-effective amendment or the Prospectus or any
amendments or supplements thereto, made in reliance upon and in
conformity with information furnished to the Company in writing by
any Underwriter through the Representatives expressly for use
therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the
information described as such in Section 8(b) hereof.
3
Each preliminary
prospectus and prospectus filed as part of the Registration
Statement, as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act Regulations and the Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with the
offering of the Notes will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(b)
Disclosure Package. The term “Disclosure
Package” shall mean (i) the Preliminary Prospectus,
(ii) the issuer free writing prospectuses as defined in
Rule 433 of the Securities Act (each, an “Issuer Free
Writing Prospectus”), if any, identified in Annex I hereto
and (iii) any other Issuer Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat
as part of the Disclosure Package. As of the Initial Sale Time, the
Disclosure Package did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by the
Representatives consists of the information described as such in
Section 8(b) hereof.
(c)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus
(i) at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder (the “Exchange Act
Regulations”) and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time,
and when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date,
did not and will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(d)
Company is a Well-Known Seasoned Issuer . (i) At the
time of filing the Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the Securities Act) made any offer relating
to the Notes in reliance on the exemption of Rule 163 of the
Securities Act, and (iv) as of the date hereof (the
“Execution Time”), the Company was and is a “well
known seasoned issuer” as defined in Rule 405 of the
Securities Act. The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405 of
the Securities Act, that initially became effective within three
years of the Execution Time; the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities
Act objecting to use of the automatic shelf registration statement
form; and the Company has not otherwise ceased to be eligible to
use the automatic shelf registration statement form.
4
(e)
Company is not an Ineligible Issuer . (i) At the
earliest time after the filing of the Registration Statement when a
bona fide offer (as used in Rule 164(h)(2) of the Securities
Act Regulations) of the Notes is first made by the Company or any
other offering participant, and (ii) as of the Execution Time, the
Company was not and is not an Ineligible Issuer (as defined in Rule
405 of the Securities Act).
(f)
Issuer Free Writing Prospectuses . Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Notes or
until any earlier date of which the Company notified or notifies
the Representatives, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus, including any document
incorporated by reference therein that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the
information described as such in Section 8(b) hereof.
(g)
Distribution of Offering Material By the Company. The
Company has not distributed and will not distribute, prior to the
later of the Closing Date and the completion of the
Underwriters’ distribution of the Notes, any offering
material in connection with the offering and sale of the Notes
other than the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the
Representatives and identified in Annex I hereto or the
Registration Statement.
(h) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(i)
Authorization of the Base Indenture . The Base Indenture has
been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
(j)
Authorization of the Supplemental Indenture. Each of the
First Supplemental Indenture, the Second Supplemental Indenture and
the Third Supplemental Indenture has been duly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company and will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
(k)
Authorization of the Notes. The Notes to be purchased by the
Underwriters from the Company are in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant
to this Agreement and the Indenture and, at the Closing Date, will
have been duly executed by the Company and, when authenticated in
the manner provided for in the
5
Indenture and
delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles, and will be entitled to the
benefits of the Indenture.
(l)
Authorization of the Pledge Agreements . Each of the Pledge
Agreements has been duly authorized, executed and delivered by the
respective Grantor and constitutes a valid and binding agreement of
such Grantor, enforceable against it in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
(m)
Creation of Security Interest . The representations and
warranties of each of the Grantors contained in the respective
Pledge Agreement are true and correct with the same force and
effect as if expressly made herein as of the date hereof. The
Grantors are the legal and beneficial owners of the Collateral free
and clean of any lien, except for the liens and security interests
created under the Security Documents.
(n)
Description of the Notes, the Indenture and the Security
Documents . The Notes, the Indenture and the Security Documents
conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Prospectus.
(o) No
Material Adverse Change . Except as otherwise disclosed in the
Disclosure Package and the Prospectus, subsequent to the respective
dates as of which information is given in the Disclosure Package
and the Prospectus: (i) there has been no material adverse
change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects,
whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one
entity (any such change is called a “Material Adverse
Change”); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary
course of business or entered into any material transaction or
agreement not in the ordinary course of business; and
(iii) except for regular quarterly dividends on the common
stock or shares or preferred stock or shares in amounts per share
that are consistent with past practice, there has been no dividend
or distribution of any kind declared, paid or made by the Company
or, except for dividends paid to the Company or other subsidiaries,
any of its subsidiaries on any class of capital stock or shares or
repurchase or redemption by the Company or any of its subsidiaries
of any class of capital stock or shares.
(p)
Independent Accountants. KPMG LLP, who have expressed their
opinion with respect to the Company’s audited financial
statements for the fiscal years ended December 31, 2003, 2004
and 2005 incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus, are independent
public or certified public accountants within the meaning of
Regulation S-X under the Securities Act and the Exchange Act and a
registered public accounting firm within the meaning of the
Sarbanes-Oxley Act of 2002.
6
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, 2003 and
2004 incorporated by reference in the Registration Statement, the
Preliminary Prospectus 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
Securities Act and the Exchange Act and a registered public
accounting firm within the meaning of the Sarbanes-Oxley Act of
2002.
(q)
Preparation of the Financial Statements. The financial
statements together with the related notes thereto incorporated by
reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries and Catellus and its
subsidiaries, as applicable, 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. The selected financial data and the summary
financial information included in the Preliminary Prospectus and
the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement, the Preliminary Prospectus and the
Prospectus. In addition, any pro forma financial statements of the
Company and its subsidiaries and the related notes thereto included
in the Registration Statement, the Preliminary Prospectus and the
Prospectus present fairly the information shown therein, have been
prepared in all material respects in accordance with the
Commission’s rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and in the opinion of the Company the
assumptions used in the preparation thereof were reasonable at the
time made and the adjustments used therein were based upon good
faith estimates and assumptions believed by the Company to be
reasonable at the time made.
(r)
Incorporation and Good Standing of the Company. The Company
has been duly organized and is validly existing as a real estate
investment trust in good standing under the laws of the State of
Maryland and has the trust power and authority to own, lease and
operate its properties and to conduct its business as described in
the Disclosure Package and the Prospectus, and to enter into and
perform its obligations under each of this Agreement, the Notes,
the Indenture and the Borrower Pledge Agreement. The Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change.
(s)
Incorporation and Good Standing of the Subsidiary Grantors.
Each of the Subsidiary Grantors has been duly incorporated and is
validly existing and, to the extent applicable in such
jurisdiction, in good standing under the laws of its jurisdiction
of organization
7
and has the
power and authority to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the
Prospectus, and to enter into and perform its obligations under the
respective Pledge Agreement. Each Subsidiary Grantor is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change.
(t)
Incorporation and Good Standing of Significant Subsidiaries.
Each subsidiary and joint venture of the Company listed on
Schedule B hereto (collectively, the “Significant
Subsidiaries”) has been duly incorporated or organized, as
the case may be, and is validly existing as a corporation, trust or
partnership and (except as to any general partnership) in good
standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, and has the power (corporate or
other) and authority to own, lease and operate its properties and
to conduct its business as described in the Disclosure Package and
the Prospectus. Each Significant Subsidiary is duly qualified as a
foreign corporation, trust or partnership to transact business and
is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a
Material Adverse Change. All of the issued and outstanding capital
stock and other equity interests of each Significant Subsidiary
have been duly authorized and validly issued, and are fully paid
and (except for general partnership interests and directors’
qualifying shares) nonassessable; all shares of outstanding capital
stock and other equity interests of each Significant Subsidiary
held by the Company, directly or through subsidiaries, are owned
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim, except for the pledge of such capital stock
or other interests to secure borrowings of the Company or one of
its wholly owned subsidiaries. The subsidiaries of the Company
listed on Schedule B are the only subsidiaries of the Company
that are material to the condition, financial or otherwise, or the
earnings, business, operations or prospects of the Company and its
subsidiaries, considered as one entity, and include all
subsidiaries of the Company, which individually meet the criteria
in the definition of “significant subsidiary” pursuant
to Rule 1-02(w) of Regulation S-X under the Securities
Act.
(u)
Capital Stock Matters. All of the issued and outstanding
shares of beneficial interest of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
have been issued in compliance with federal and state securities
laws.
(v)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor
any of its subsidiaries is in violation of its declaration of trust
(or charter or by-laws or other similar constitutive documents),
except, in the case of subsidiaries of the Company, for such
violations as would not, individually or in the aggregate, result
in a Material Adverse Change. Neither the Company nor any of its
subsidiaries is in default (or, with the giving of notice or lapse
of time or both, would be in default) (“Default”) under
any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be
bound, including the Security Documents, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (each, an “Existing Instrument”), except
for
8
such Defaults
as would not, individually or in the aggregate, result in a
Material Adverse Change. The Company’s execution, delivery
and performance of this Agreement and the Indenture, and the
issuance and delivery of the Notes, the consummation of the
transactions contemplated hereby or thereby and by the Disclosure
Package and the Prospectus and the Grantors’ execution,
delivery and performance of the Pledge Agreements (i) have
been duly authorized by all necessary trust, corporate or other
action, as the case may be, and will not result in any violation of
the provisions of the declaration of trust (or charter or by-laws
or other similar constitutive documents) of the Grantors or any
subsidiary of the Company, except, in the case of subsidiaries of
the Company, for such violations as would not, individually or in
the aggregate, result in a Material Adverse Change, (ii) will
not conflict with or constitute a breach of, or Default under, or
result in the creation or imposition of any lien, charge or
encumbrance (other than the lien, charge or encumbrance created by
the Pledge Agreements in favor of the Collateral Agent) upon any
property or assets of the Grantors or any of their subsidiaries
pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will
not result in any violation of any law, administrative regulation
or administrative or court decree applicable to the Grantors or any
subsidiary of the Company, except for such violation as would not,
individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement or the
Indenture, or the issuance and delivery of the Notes or
consummation of the transactions contemplated hereby or thereby and
by the Disclosure Package and the Prospectus, or the
Grantors’ execution, delivery and performance of the Pledge
Agreements, except such as have been obtained or made by the
Company or the Grantors and are in full force and effect under the
Securities Act, the Trust Indenture Act and applicable state
securities or blue sky laws and from NASD or the failure of which
to obtain would not result in a Material Adverse Change or have a
material adverse effect on the consummation of the transactions
contemplated by this Agreement.
(w) No
Material Actions or Proceedings. Except as otherwise disclosed
in the Disclosure Package and the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best
of the Company’s knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, (ii) which
has as the subject thereof any officer or director of, or property
owned or leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely
to the Company or such subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this
Agreement. 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.
(x)
Intellectual Property Rights. The Company and its
subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, domain names, licenses, approvals, trade
secrets and other similar rights (collectively, “Intellectual
Property Rights”) reasonably
9
necessary to
conduct their businesses as now conducted, except as would not
result in a Material Adverse Change; and the expected expiration of
any of such Intellectual Property Rights would not result in a
Material Adverse Change. Neither the Company nor any of its
subsidiaries has received any notice of infringement or conflict
with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable
decision, would result in a Material Adverse Change. The Company is
not a party to or bound by any options, licenses or agreements with
respect to the Intellectual Property Rights of any other person or
entity that are required to be set forth in the Registration
Statement, the Preliminary Prospectus or the Prospectus, and that
are not described in all material respects in such documents. None
of the technology employed by the Company has been obtained or is
being used by the Company in violation of any contractual
obligation binding on the Company or, to the Company’s
knowledge, any of its officers, directors or employees or otherwise
in violation of the rights of any persons, except for such
violations as would not, individually or in the aggregate, result
in a Material Adverse Change.
(y) 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.
(z) Title
to Properties. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company and each of its
subsidiaries has good and marketable title to all the properties
and assets reflected as owned in the financial statements referred
to in Section 1(q) above (or elsewhere in the Disclosure Package
and the Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and
other defects, except such as do not materially and adversely
affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company or
any subsidiary are held under valid and enforceable leases, with
such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
(aa) Tax
Law Compliance. The Company and its subsidiaries have filed all
material federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid
all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied
against any of them except as may be being contested in good faith
and by appropriate proceedings. The Company has made adequate
charges, accruals and reserves in the applicable financial
statements referred to in Section 1(q) above in respect of all
federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined. With respect to all
tax periods in respect of which the Internal Revenue Service is or
will be entitled to any claim, the Company has met the requirements
for qualification as a real estate
10
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.
(bb)
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”).
(cc)
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.
(dd) 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.
(ee) No
Unlawful Contributions or Other Payments. Neither the Company
nor any of its Significant Subsidiaries nor, to the best of the
Company’s knowledge, any employee or agent of the Company or
any Significant Subsidiary, has made any contribution or other
payment to any official of, or candidate for, any federal, state or
foreign office in violation of any law or of the character
necessary to be disclosed in the Disclosure Package and the
Prospectus in order to make the statements therein, in the light of
the circumstances under which such statements were made, not
misleading.
(ff)
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
11
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.
(gg)
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.
(hh)
Company’s Accounting System. The Company and its
subsidiaries maintain effective internal control over financial
reporting, as such term is defined in Rule 13a-15(f) under the
Exchange Act.
12
(ii)
Disclosure Controls and Procedures . The Company has
established and maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed
to ensure that material information relating to the Company and its
subsidiaries is made known to the chief executive officer and chief
financial officer of the Company by others within the Company or
any of its subsidiaries, and such disclosure controls and
procedures are reasonably effective to perform the functions for
which they were established subject to the limitations of any such
control system; the Company’s auditors and the audit
committee of the board of directors of the Company have been
advised of: (i) any significant deficiencies or material
weaknesses in the design or operation of internal controls which
could adversely affect the Company’s ability to record,
process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls;
and since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material
weaknesses.
(jj)
Termination of Guarantee Related to the Notes . The
Guarantee Agreement, dated as of November 12, 2003 executed by
the subsidiaries of the Company party thereto (the
“Guarantee”) for the benefit of the Trustee and the
holders of any debt securities issued under the Indenture has no
further force or effect and there is not currently existing and,
other than the Guarantee, there never has existed, any other
guarantee of any debt securities issued under the Indenture,
including but not limited to the Notes.
Any certificate
signed by any officer of the Company or any of its subsidiaries and
delivered to any Underwriter or to counsel for the Underwriters in
connection with the offering of the Notes shall be deemed a
representation and warranty by the Company to each Underwriter as
to the matters set forth therein on the date of such certificate
and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
The Company
acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 5 hereof, counsel
for the Company and counsel for the Underwriters, will rely upon
the accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
Section 2. Purchase, Sale
and Delivery of the Notes.
(a) The
Notes. The Company agrees to issue and sell to the several
Underwriters, severally and not jointly, all of the Notes upon the
terms herein set forth. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company the
aggregate principal amount of Notes set forth opposite their names
on Schedule A at a purchase price of 98.942% of the principal
amount of the 5.625% Notes due 2016, 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 &
13
Sterling LLP
(or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on
November 14, 2006, 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 Representatives hereby
advise the Company that the Underwriters intend to offer for sale
to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after
this Agreement has been executed as the Representatives, in their
sole judgment, have determined is advisable and
practicable.
(d)
Payment for the Notes. Payment for the Notes shall be made
at the Closing Date by wire transfer of immediately available funds
to the order of the Company.
It is understood
that the Representatives have been authorized, for their own
accounts and for the accounts of the several Underwriters, to
accept delivery of and receipt for, and make payment of the
purchase price for, the Notes that the Underwriters have agreed to
purchase. The Representatives may (but shall not be obligated to)
make payment for any Notes to be purchased by any Underwriter whose
funds shall not have been received by the Representatives by the
Closing Date for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
(e)
Delivery of the Notes. The Company shall deliver, or cause
to be delivered, to the Representatives for the accounts of the
several Underwriters 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
Representatives shall have requested at least two full business
days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a
location in New York City, as the Representatives may designate.
Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the
obligations of the Underwriters.
Section 3. Additional
Covenants. The Company further covenants and agrees with each
Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will
comply with the requirements of Rule 430B of the Securities
Act Regulations, and will promptly notify the Representatives, and
confirm the notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the
filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the
Commission during the Prospectus Delivery Period (defined below),
(iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Preliminary Prospectus or the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus, or of the suspension of the
qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any
14
proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as it
deems necessary to ascertain promptly whether the Preliminary
Prospectus and the Prospectus transmitted for filing under
Rule 424 was received for filing by
|
