SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20546
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 17, 1997
(November 13, 1997)
LIBERTY PROPERTY TRUST
LIBERTY PROPERTY LIMITED PARTNERSHIP
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(Exact names of registrants as specified
in their respective charters)
MARYLAND 1-13130 23-7768996
PENNSYLVANIA 1-13132 23-2766549
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State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
65 VALLEY STREAM PARKWAY, SUITE 100
MALVERN, PENNSYLVANIA 19355
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(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code: (610) 648-1700
<PAGE>
ITEM 5: OTHER EVENTS
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On November 13, 1997, Liberty Property Trust (the "Trust") priced a
public offering of 8,000,000 of its Common Shares of Beneficial
Interest, par value $0.001 per share (the "Common Shares"), at $25.50
per Share. Lehman Brothers, Donaldson Lufkin & Jenrette Securities
Corporation, A. G. Edwards & Sons Incorporated, The Robinson-Humphrey
Company, LLC, Smith Barney Inc. and Wheat, First Securities, Inc.
(collectively, the "Underwriters") acted as underwriters of such
offering and have been granted by the Trust a 30-day option to purchase
up to an additional 1,200,000 Common Shares, solely to cover over-
allotments, if any. The Underwriting Agreement relating to such
offering is filed as Exhibit 1.1 to this Report.
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<PAGE>
ITEM 7: FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
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(a) Financial Statements of Businesses Acquired.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
1.1 Underwriting Agreement, dated November 13, 1997, by and among
the Trust, Liberty Property Limited Partnership and the
Underwriters.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
each Registrant has duly caused this Report to be signed on its behalf
by the undersigned hereunto duly authorized.
LIBERTY PROPERTY TRUST
Dated: November 17, 1997 BY: /s/ GEORGE J. ALBURGER, JR.
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NAME: George J. Alburger, Jr.
TITLE: Chief Financial Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
BY: LIBERTY PROPERTY TRUST, AS ITS
SOLE GENERAL PARTNER
Dated: November 17, 1997 BY: /s/ GEORGE J. ALBURGER, JR.
----------------------------------------
NAME: George J. Alburger, Jr.
TITLE: Chief Financial Officer
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<PAGE>
EXHIBIT INDEX
1.1 Underwriting Agreement, dated November 13, 1997, by and among
the Trust, Liberty Property Limited Partnership and the
Underwriters.
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<PAGE>
EXHIBIT 1.1
8,000,000 SHARES
LIBERTY PROPERTY TRUST
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
November 13, 1997
Lehman Brothers Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
A.G. Edwards & Sons, Inc.
The Robinson-Humphrey Company, LLC
Smith Barney Inc.
Wheat, First Securities, Inc.,
As Representatives of the several
Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Liberty Property Trust, a Maryland real estate investment trust (the
"Company"), and Liberty Property Limited Partnership, a Pennsylvania
limited partnership (the "Operating Partnership" and, together with the
Company, the "Transaction Entities"), each wish to confirm as follows
its agreement with Lehman Brothers Inc., Donaldson, Lufkin & Jenrette
Securities Corporation, A.G. Edwards & Sons, Inc., The Robinson-Humphrey
Company, LLC, Smith Barney Inc. and Wheat, First Securities, Inc., as
the representatives (the "Representatives") of the several underwriters
named in Schedule 1 (the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 9 of this
Agreement), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of an aggregate of
8,000,000 shares (the "Firm Shares") of the Company's common shares of
beneficial interest, par value $.001 per share (the "Common Shares").
In addition, the Company proposes to grant to the Underwriters an option
to purchase up to an additional 1,200,000 Common Shares on the terms and
for the purposes set forth in Section 2 (the "Option Shares"). The Firm
Shares and the Option Shares, if purchased, are hereinafter collectively
called the "Shares."
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as defined below).
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE TRANSACTION
ENTITIES. Each of the Transaction Entities, jointly and severally,
represents, warrants and agrees that, as of the date hereof:
(a) A registration statement on Form S-3 (No. 333-22211), and any
amendments thereto, with respect to the Shares have (i) been prepared by
the Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration
statements and any amendments thereto have been delivered by the Company
to you. As used in this Agreement, "Effective Time" means the date and
the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in each such
registration statement, or amendments thereto, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed to be a part of such registration
statement as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations, and shall include any registration
statement filed pursuant to Rule 462(b) of the Rules and Regulations;
and "Prospectus" means such final prospectus, as first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations. Any
reference herein to the Registration Statement, the Prospectus or a
Preliminary Prospectus shall be deemed to include the documents
incorporated or deemed to be incorporated by reference therein which
were filed under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). For purposes of this Agreement, all references to
the Registration Statement, any Preliminary Prospectus or the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
(b) Each Preliminary Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Rules and
Regulations, complied when so filed in all material respects with the
provisions of the Securities Act, and each Preliminary Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(c) The Registration Statement conforms in all material respects,
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, conform
in all material respects to the requirements of the Securities Act and
the Rules and Regulations, and do not and will not, as of the Effective
Date (as to the Registration Statement and any amendment thereto) and as
of the applicable filing date and at the First Delivery Date (as defined
below) (as to the Prospectus and any amendment or supplement thereto)
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 (with respect to the Prospectus, in
light of the circumstances under which they were made); provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein. The Prospectus delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement as of the Effective Date, the
Prospectus as of its date or any Preliminary Prospectus as of its date,
complied in all material respects with the Exchange Act and the rules
and regulations thereunder, and none of such documents, at such dates,
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, in the light of the circumstances under which they
were made, not misleading.
(e) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of either of the
Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of either of the Transaction Entities, after due
inquiry of the Commission, threatened by the Commission or by the state
securities authority of any jurisdiction.
(f) The Company has been duly formed and is validly existing as a
real estate investment trust in good standing under the laws of the
State of Maryland, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and
has all power and authority necessary to own or hold its properties, to
conduct the business in which it is engaged and to enter into and
perform its obligations under this Agreement. None of the subsidiaries
of the Company (other than the Operating Partnership, Liberty Property
Development Corp. ("Development Corp."), Liberty Property Development
Corp.-II ("Development-II") and Liberty Special Purpose Corp. ("SP
Corp.")) is a "significant subsidiary," as such term is defined in Rule
405 of the Rules and Regulations. Except as described in the Prospectus
and other than the Property Affiliates (as defined below) and the
Operating Partnership, Development Corp., Development-II and SP Corp.,
the Company owns no direct or indirect equity interest in any entity,
except for such interests as, in the aggregate, are not material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company and its subsidiaries
considered as a single enterprise.
(g) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Capitalization," and all of the issued
shares of beneficial interest of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained in the Prospectus. Except as
disclosed in the Prospectus, no shares of beneficial interest of the
Company are reserved for any purpose and except for the equity interests
in the Operating Partnership ("Units") and the Operating Partnership's
Exchangeable Subordinated Debentures due 2001, there are no outstanding
securities convertible into or exchangeable for any shares of beneficial
interest of the Company. Except for transactions described in the
Prospectus and transactions in connection with stock option and other
benefit plans, there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or subscribe for shares of beneficial
interest or any other securities of the Company.
(h) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and is in
good standing as a foreign limited partnership in each jurisdiction in
which its ownership or lease of property or the conduct of its business
requires such qualification, and has all partnership power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
this Agreement. The Company is the sole general partner of the
Operating Partnership. The agreement of limited partnership of the
Operating Partnership, as amended to date (the "Operating Partnership
Agreement") is in full force and effect, and the aggregate percentage
interests of the Company and the limited partners in the Operating
Partnership are as set forth in the Prospectus; provided that to the
extent any portion of the over-allotment option described in Section 2
hereof is exercised at the First Delivery Date, the percentage interest
of such partners in the Operating Partnership will be adjusted
accordingly. Additionally, to the extent any portion of such over-
allotment option is exercised subsequent to the First Delivery Date, the
Company will contribute the proceeds from the sale of the Option Shares
to the Operating Partnership in exchange for an increase in the
Company's interest in the Operating Partnership consistent with the
number of Option Shares issued.
(i) Development Corp. has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and is in
good standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and
has all corporate power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged. All of
the issued and outstanding capital stock of Development Corp. has been
duly authorized and validly issued and is fully paid and non-assessable,
has been offered and sold in compliance with all applicable laws
(including, without limitation, federal or state securities laws) and
all of the capital stock of Development Corp. owned by the Operating
Partnership, as described in the Prospectus, is owned free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities. No shares of capital stock of Development
Corp. are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of
Development Corp., and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of Development Corp.
(j) Development-II has been duly organized and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania, is duly qualified to do business and is in good standing
in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, and has all
corporate power and authority necessary to own or hold its properties
and to conduct the business in which it is engaged. All of the issued
and outstanding capital stock of Development-II has been duly authorized
and validly issued and is fully paid and non-assessable, has been
offered and sold in compliance with all applicable laws (including,
without limitation, federal or state securities laws) and all of the
capital stock of Development-II owned by the Operating Partnership, as
described in the Prospectus, is owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim, restriction or
equities. No shares of capital stock of Development-II are reserved for
any purpose, and there are no outstanding securities convertible into or
exchangeable for any capital stock of Development-II, and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of
Development-II.
(k) SP Corp. has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, and has all corporate power and authority necessary to
own or hold its properties and to conduct the business in which it is
engaged. All of the issued and outstanding capital stock of SP Corp.
has been duly authorized and validly issued and is fully paid and non-
assessable, has been offered and sold in compliance with all applicable
laws (including, without limitation, federal or state securities laws)
and all of the capital stock of SP Corp. is owned by the Company free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim, restriction or equities. No shares of capital stock of SP Corp.
are reserved for any purpose, and there are no outstanding securities
convertible into or exchangeable for any capital stock of SP Corp. and
no outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of SP Corp.
(l) Each of those certain partnerships, limited liability companies
or other entities holding title to one or more of the Properties (the
"Property Affiliates") are the only entities other than the Operating
Partnership through which the Company and the Operating Partnership own
interests in the Properties. Each of the Property Affiliates has been
duly organized and is validly existing as a limited partnership, limited
liability company or other entity in good standing under the laws of the
jurisdiction in which it is organized, is duly qualified to do business
and is in good standing as a foreign entity in each jurisdiction in
which its ownership or lease of property or the conduct of its business
requires such qualification, and has all power and authority necessary
to own or hold its properties and to conduct the business in which it is
engaged. Except as set forth in the Prospectus, all of the ownership
interests of each Property Affiliate have been duly and validly
authorized and issued, are fully paid and non-assessable and all of the
ownership interests owned directly or indirectly by the Company and the
Operating Partnership, as described in the Prospectus, are owned free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim, restriction or equities.
(m) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable. Upon payment
of the purchase price and delivery of the Shares in accordance herewith,
each of the Underwriters will receive good, valid and marketable title
to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims, restrictions and equities. The
terms of the Shares conform in substance to all statements and
descriptions related thereto contained in the Prospectus. The form of
the certificates to be used to evidence the Shares will at the First
Delivery Date be in due and proper form and will comply with all
applicable legal requirements. The issuance of the Shares is not
subject to any preemptive or other similar rights.
(n) (A) This Agreement has been duly and validly authorized,
executed and delivered by each of the Transaction Entities, and assuming
due authorization, execution and delivery by the Underwriters, is a
valid and binding agreement of each of the Transaction Entities,
enforceable against the Transaction Entities in accordance with its
terms; and (B) the Operating Partnership Agreement and the partnership
agreement of each Property Affiliate, has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid
and binding agreement of the parties thereto, enforceable against such
parties in accordance with its terms.
(o) The execution, delivery and performance of this Agreement by
each of the Transaction Entities and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which either of the Transaction
Entities is a party or by which either of the Transaction Entities is
bound or to which any of the Properties or other assets of either of the
Transaction Entities is subject, nor will such actions result in any
violation of the provisions of the charter, by-laws, certificate of
limited partnership or agreement of limited partnership of either of the
Transaction Entities, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over either
of the Transaction Entities or any of their properties or assets; and
except for the registration of the Shares under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Transaction Entities and the
consummation of the transactions contemplated hereby.
(p) Other than as described in the Prospectus and other than rights
of persons whose securities are already registered under the Securities
Act, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(q) Except as described or contemplated in the Prospectus, neither
Transaction Entity has sold or issued any securities during the six-
month period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities
Act.
(r) Neither of the Transaction Entities nor any of the Properties
has sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, other than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material change
in the capital stock or long-term debt of either of the Transaction
Entities or any material adverse change, or any development involving a
prospective material adverse change, in or affecting any of the
Properties or the general affairs, management, financial position,
shareholders' equity or results of operations of either of the
Transaction Entities, other than as set forth or contemplated in the
Prospectus.
(s) The financial statements (including the related notes and
supporting schedules) filed as part of, or incorporated by reference in,
the Registration Statement and the Prospectus present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. The Company's ratios of earnings to fixed charges (actual
and, if any, pro forma) included in the Prospectus under the captions
"Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. Pro forma financial
information included in or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act, the Rules and Regulations
and AICPA guidelines with respect to pro forma financial information and
includes all adjustments necessary to present fairly the pro forma
financial position of the Company at the respective dates indicated and
the results of operations for the respective periods specified.
(t) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose reports appear in the Prospectus or are
incorporated by reference therein and who have delivered the initial
letter referred to in Section 7(f) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(u) (A) The Operating Partnership and the Property Affiliates have
good and marketable title to each of the Properties, free and clear of
all liens, encumbrances, claims, security interests and defects, other
than those referred to in the Prospectus or those which are not material
in amount or those which would not have a material adverse effect on the
business, operations, use or value of any of the Properties; (B) all
liens, charges, encumbrances, claims or restrictions on or affecting any
of the Properties and the assets of any Transaction Entity which are
required to be disclosed in the Prospectus are disclosed therein;
(C) except as otherwise described in the Prospectus, neither Transaction
Entity and, to the knowledge of the Transaction Entities, no tenant of
any of the Properties is in default under (i) any space leases (as
lessor or lessee, as the case may be) relating to the Properties, or
(ii) any of the mortgages or other security documents or other
agreements encumbering or otherwise recorded against the Properties,
which individually or in the aggregate would have a material adverse
effect on the Company and its subsidiaries taken together as a whole,
and neither Transaction Entity knows of any event which, but for the
passage of time or the giving of notice, or both, would constitute such
a default under any of such documents or agreements; (D) each of the
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except for
such failures to comply that would not have a material adverse effect on
the business operations, use or value of such Property; and (E) neither
Transaction Entity has knowledge of any pending or threatened
condemnation proceedings, zoning change or other proceeding or action
that will in any material manner adversely affect the size of, use of,
improvements on, construction on or access to the Properties.
(v) Except as described in the Prospectus, the mortgages and deeds
of trust which encumber the Properties are not convertible into equity
securities of the entity owning such Property and said mortgages and
deeds of trust are not cross-defaulted or cross-collateralized with any
property other than other Properties.
(w) Except as described in the Prospectus, the Operating
Partnership and the Property Affiliates have obtained title insurance on
the fee or leasehold interests in each of the Properties, in an amount
at least equal to the greater of (A) the mortgage indebtedness of each
such Property or (B) the purchase price of each such Property.
(x) Except as disclosed in the Prospectus and except such as in
each case would not have a material adverse effect on any Property,
Property Affiliate, or Transaction Entity or any of their subsidiaries,
taken together as a whole; (A) to the knowledge of the Transaction
Entities, after due inquiry, the operations of the Company, the
Operating Partnership, Development Corp., Development-II, SP Corp., and
the Properties are in compliance with all Environmental Laws (as defined
below) and all requirements of applicable permits, licenses, approvals
and other authorizations issued pursuant to Environmental Laws; (B) to
the knowledge of the Transaction Entities, after due inquiry, none of
the Transaction Entities, the Property Affiliates or any Property has
caused or suffered to occur any Release (as defined below) of any
Hazardous Substance (as defined below) into the Environment (as defined
below) on, in, under or from any Property, and no condition exists on,
in, under or adjacent to any Property that could result in the
incurrence of liabilities under, or any violations of, any Environmental
Law or give rise to the imposition of any Lien (as defined below), under
any Environmental Law; (C) none of the Transaction Entities or Property
Affiliates has received any written notice of a claim under or pursuant
to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (D) neither
of the Transaction Entities has actual knowledge of, or received any
written notice from any Governmental Authority (as defined below)
claiming, any violation of any Environmental Law or a determination to
undertake and/or request the investigation, remediation, clean-up or
removal of any Hazardous Substance released into the Environment on, in,
under or from any Property; and (E) no Property is included or, to the
knowledge of the Transaction Entities, after due inquiry, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA (as
defined below) by the United States Environmental Protection Agency (the
"EPA") or on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and neither
of the Transaction Entities has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a
potential CERCLA removal, remedial or response site or, to the knowledge
of the Transaction Entities, is included on any similar list of
potentially contaminated sites pursuant to any other Environmental Law.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is subject to regulation under any
Environmental Law (including, without limitation, materials listed in
the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. #172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment"
shall mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings, structures, and
ambient, workplace and indoor and outdoor air; "Environmental Law" shall
mean the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. #9601 et seq.) ("CERCLA"),
the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. #6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
#7401, et seq.), the Clean Water Act, as amended (33 U.S.C. #1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. #2601,
et seq.), the Occupational Safety and Health Act of 1970, as amended (29
U.S.C. #651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. #1801, et seq.), and all other federal, state and
local laws, ordinances, regulations, rules and orders relating to the
protection of the Environment or of human health from environmental
effects; "Governmental Authority" shall mean any federal, state or local
governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "Lien" shall
mean, with respect to any Property, any lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment or
discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or previously
containing any Hazardous Substance.
(y) Each Transaction Entity and their subsidiaries, and each
Property carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its business and
the value of such Property and as is customary for companies engaged in
similar businesses in similar industries.
(z) Each Transaction Entity owns or possesses adequate rights to
use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of its business and
has no reason to believe that the conduct of its business will conflict
with, and has not received any notice of any claim of conflict with, any
such rights of others.
(aa) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which either Transaction Entity or
their subsidiaries is a party or of which any property or assets of
either Transaction Entity or their subsidiaries is the subject which, if
determined adversely to such Transaction Entity or subsidiary, could
reasonably be expected to have a material adverse effect on the
consolidated financial position, shareholders' equity, results of
operations, business or prospects of the Company; and to the best
knowledge of the Transaction Entities, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(bb) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which
have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(cc) No relationship, direct or indirect, exists between or among
either of the Transaction Entities on the one hand, and the trustees,
officers, shareholders, customers or suppliers of the Transaction
Entities on the other hand, that is required to be described in the
Prospectus that is not so described.
(dd) No labor disturbance by the employees of either Transaction
Entity exists or, to the knowledge of the Transaction Entities, is
imminent which might be expected to have a material adverse effect on
the consolidated financial position, shareholders' equity, results of
operations, business or prospects of such Transaction Entity.
(ee) Each Transaction Entity is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which either Transaction
Entity would have any liability; neither Transaction Entity has incurred
or expects to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (ii)
sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which either Transaction Entity
would have any liability that is intended to be qualified under section
401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(ff) Each Transaction Entity and their subsidiaries has filed all
federal, state and local income and franchise tax returns required to be
filed through the date hereof and has paid all taxes due thereon, and no
material tax deficiency has been determined adversely to either
Transaction Entity or their subsidiaries which has had (nor does either
Transaction Entity have any knowledge of any tax deficiency which, if
determined adversely to it might have) a material adverse effect on the
financial position, shareholders' equity, results of operations,
business or prospects of such Transaction Entity or subsidiary.
(gg) At all times since June 16, 1994, the Company, the Operating
Partnership, Development Corp., Development-II and SP Corp. have been
and, upon the sale of the Shares, will continue to be, organized and
operated in conformity with the requirements for qualification of the
Company as a real estate investment trust under the Code and the
proposed method of operation of the Company, the Operating Partnership,
Development Corp., Development-II and SP Corp. will enable the Company
to continue to meet the requirements for qualification and taxation as a
real estate investment trust under the Code.
(hh) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed or contemplated in the Prospectus, neither Transaction Entity
has (i) issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered
into any transaction not in the ordinary course of business nor (iv)
declared or paid any dividend on its capital stock (other than regular
quarterly dividends).
(ii) Each Transaction Entity and their subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(jj) No Transaction Entity or any of their subsidiaries (i) is in
violation of its charter, by-laws, certificate of limited partnership,
agreement of limited partnership or other similar organizational
document, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
it is a party or by which it is bound or to which any of the Properties
or any of its other properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or the Properties or any of
its other properties or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of the
Properties or any of its other properties or assets or to the conduct of
its business.
(kk) Neither Transaction Entity, nor any trustee, officer, agent,
employee or other person associated with or acting on behalf of either
Transaction Entity, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ll) Neither Transaction Entity or any of their subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(mm) The Shares will be listed on the New York Stock Exchange on the
First Delivery Date.
(nn) Other than this Agreement and as set forth in the Prospectus
under the heading "Underwriting," there are no contracts, agreements or
understandings between either Transaction Entity and any person that
would give rise to a valid claim against either Transaction Entity or
any Underwriter for a brokerage commission, finder's fee or other like
payment with respect to the consummation of the transactions
contemplated by this Agreement.
(oo) Each Transaction Entity has complied with all applicable
provisions of Florida Statutes #517.075, relating to issuers doing
business with Cuba.
2. PURCHASE OF THE SHARES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms
and conditions of, this Agreement, the Company agrees to sell 8,000,000
Firm Shares, to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Shares
set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the
Firm Shares shall be rounded among the Underwriters to avoid fractional
shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 1,200,000 Option Shares. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Shares
and is exercisable as provided in Section 4 hereof. Option Shares shall
be purchased severally for the account of the Underwriters in proportion
to the number of Firm Shares set forth opposite the names of such
Underwriters in Schedule 1 hereto. The respective purchase obligations
of each Underwriter with respect to the Option Shares shall be adjusted
by the Representatives so that no Underwriter shall be obligated to
purchase Option Shares other than in 100-share amounts. The price of
both the Firm Shares and any Option Shares shall be $24.23 per share.
The Company shall not be obligated to deliver any of the Shares to
be delivered on the First Delivery Date or the Second Delivery Date (as
defined below), as the case may be, except upon payment for all the
Shares to be purchased on such Delivery Date as provided herein.
3. OFFERING OF SHARES BY THE UNDERWRITERS. Upon authorization by the
Representatives of the release of the Firm Shares, the several
Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and payment for
the Firm Shares shall be made at the office of Rogers & Wells, 200 Park
Avenue, New York, New York 10166, at 10:00 A.M., New York City time, on
the third full business day following the date of this Agreement or on the
fourth full business day if this Agreement is executed after the daily
closing time of the New York Stock Exchange (unless postponed in accordance
with the provisions of Section 9 hereof), or at such other date or place as
shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Firm Shares to the
Representatives for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by certified or
official bank check or checks payable in same day funds or, at the
discretion of the Company, by wire transfer in same day funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Shares shall be registered in such
names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the First Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Shares, the Company shall make the certificates
representing the Firm Shares available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised in whole or in
part by written notice being given to the Company by the Representatives.
Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised, the names in which the Option Shares
are to be registered, the denominations in which the Option Shares are to
be issued and the date and time, as determined by the Representatives, when
the Option Shares are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than
the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option Shares are
delivered are sometimes referred to as the "Second Delivery Date" and the
First Delivery Date and the Second Delivery Date are sometimes each
referred to as a "Delivery Date."
Delivery of and payment for the Option Shares shall be made at the
place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement
between the Representatives and the Company) at 10:00 A.M., New York City
time, on the Second Delivery Date. On the Second Delivery Date, the
Company shall deliver or cause to be delivered the certificates
representing the Option Shares to the Representatives for the account of
each Underwriter against payment to or upon the order of the Company of the
purchase price by certified or official bank check or checks payable in
same day funds or, at the discretion of the Company, by wire transfer in
same day funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Option Shares
shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the
purpose of expediting the checking and packaging of the certificates for
the Option Shares, the Company shall make the certificates representing the
Option Shares available for inspection by the Representatives in New York,
New York, not later than 2:00 P.M., New York City time, on the business day
prior to the Second Delivery Date.
5. FURTHER AGREEMENTS OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities jointly and severally agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or any supplement to
the Registration Statement or to the Prospectus except in accordance with
Section 5(e) hereof; to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel for the
Underwriters such number of conformed copies as the Underwriters shall
reasonably request of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith or incorporated by
reference therein and all documents incorporated by reference therein;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement) and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the delivery
of a prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Shares or any other securities
relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representatives and, upon
their request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Underwriters may from time to time reasonably request of an amended
or supplemented Prospectus which will correct such statement or omission or
effect such compliance. The aforementioned documents furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or counsel for the
Underwriters, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Underwriters and counsel for the Underwriters within a
reasonable period of time prior to the filing thereof, and that filing
thereof shall not occur if the Representatives shall have objected in good
faith thereto;
(f) The Company will make generally available to its security holders
as soon as practicable but no later than 60 days after the close of the
period covered thereby an earnings statement (in form complying with the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules
and Regulations), which need not be certified by independent certified
public accountants unless required by the Securities Act or the Rules and
Regulations, covering a twelve-month period commencing after the "effective
date" (as defined in said Rule 158) of the Registration Statement;
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Shares may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for offering
and sale under the securities, real estate syndication or Blue Sky laws of
such jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, except that the Company shall not be required
in connection therewith to qualify as a foreign corporation or to execute a
consent to service of process in any jurisdiction;
(i) For a period of 90 days from the date of the Prospectus, the
Company will not, directly or indirectly, (1) offer for sale, contract to
sell, sell, pledge or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any Common Shares
or securities convertible into or exercisable or exchangeable for Common
Shares in an underwritten offering to the public (other than the Shares and
any Units or Common Shares that may be issued in connection with any
acquisition of a property or pursuant to customary compensation
arrangements and employee benefit plans), or sell or grant options, rights
or warrants with respect to any Common Shares or securities convertible
into or exercisable or exchangeable for Common Shares (except pursuant to
customary compensation arrangements and employee benefit plans), or (2)
enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of such Common Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Shares or
other securities, in cash or otherwise, in each case without the prior
written consent of Lehman Brothers Inc.; and to cause Willard G. Rouse III,
Joseph P. Denny, George J. Alburger, Jr., George F. Congdon and Robert E.
Fenza, who each own Units or Common Shares, to furnish to the Underwriters,
prior to the First Delivery Date, a letter or letters, in form and
substance satisfactory to counsel for the Underwriters, pursuant to which
each such person shall agree not to, directly or indirectly, (1) offer for
sale, sell, pledge, contract to sell or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
Units or Common Shares or securities convertible into or exercisable or
exchangeable for Common Shares or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such Units or Common
Shares, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Units, Common Shares or other securities,
in cash or otherwise, in each case for a period of 90 days from the date of
the Prospectus, without the prior written consent of Lehman Brothers Inc.;
(j) The Company will file with the New York Stock Exchange, Inc. all
documents and notices required by such exchange of companies that have
securities listed on such exchange and will use its best efforts to
maintain the listing of the Shares thereon;
(k) To apply the net proceeds from the sale of the Shares in
accordance with the description set forth in the Prospectus under the
caption "Use of Proceeds";
(l) To take such steps as shall be necessary to ensure that neither
the Company nor any of its subsidiaries shall become an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder;
(m) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, neither Transaction Entity has taken, nor will
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Shares to facilitate the sale or resale of the
Shares;
(n) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code;
and
(o) If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Transaction Entities to comply
with the terms or fulfill any of the conditions of this Agreement, the
Transaction Entities jointly and severally agree to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
expenses of counsel for the Underwriters) incurred by the Underwriters in
connection herewith.
6. EXPENSES. The Transaction Entities jointly and severally agree to pay
(a) the costs incident to the authorization, issuance, sale and delivery of
the Shares and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the
costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as
provided in this Agreement; (d) the costs of producing and distributing
this Agreement and any other related documents in connection with the
offering, purchase, sale and delivery of the Shares; (f) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Shares; (g) any
applicable listing or other fees; (h) the fees and expenses of qualifying
the Shares under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue
Sky Memorandum (including related fees and expenses of counsel to the
Underwriters); and (j) all other costs and expenses incident to the
performance of the obligations of the Transaction Entities under this
Agreement; provided that, except as provided in this Section 6 and in
Section 12, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on
the Shares which they may sell and the expenses of advertising any offering
of the Shares made by the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on
each Delivery Date, of the representations and warranties of the
Transaction Entities contained herein, to the performance by each
Transaction Entity of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required to have been made by such
time by Rules 424 and 430A under the Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Transaction Entities or
any Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
the satisfaction of the Underwriters.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition, financial or otherwise,
business, properties, net worth, or results of operations of either
Transaction Entity or any of their subsidiaries or any Property not
contemplated by the Prospectus, which in the opinion of the Underwriters,
would materially adversely affect the market for the Shares, or (ii) any
event or development relating to or involving either Transaction Entity, or
any partner, officer, director or trustee of either Transaction Entity,
which makes any statement of a material fact made in the Prospectus untrue
or which, in the opinion of the Company and its counsel or the Underwriters
and their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Securities Act
or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion,
materially adversely affect the market for the Shares.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) (A) Wolf, Block, Schorr and Solis-Cohen LLP shall have furnished
to the Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company is in good standing as a foreign trust or
corporation in those jurisdictions listed in such opinion.
(ii) The Operating Partnership has been duly formed and is
validly existing as a limited partnership under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business as a foreign
limited partnership in Delaware, Florida, Maryland, Michigan, Minnesota,
New Jersey, North Carolina, South Carolina, Tennessee, Texas and Virginia,
and has all partnership power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged as described in
the Registration Statement and the Prospectus, and to enter into and
perform its obligations under this Agreement. The Company is the sole
general partner of the Operating Partnership. The Operating Partnership
Agreement is in full force and effect, and the aggregate percentage
interests of the Company and the limited partners in the Operating
Partnership are as set forth in the Prospectus.
(iii) Development Corp. has been duly formed and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and is in
good standing as a foreign corporation in Delaware, Florida, Maryland, New
Jersey and North Carolina, and has all corporate power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged as described in the Registration Statement and the
Prospectus. All of the issued and outstanding capital stock of Development
Corp. has been duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with all applicable
laws (including, without limitation, federal or state securities laws) and
all of the capital stock of Development Corp. owned by the Operating
Partnership, as described in the Prospectus, is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim, restriction
or equities.
(iv) Development-II has been duly formed and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania, and has all corporate power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged as
described in the Registration Statement and the Prospectus. All of the
issued and outstanding capital stock of Development-II has been duly
authorized and validly issued and is fully paid and non-assessable, has
been offered and sold in compliance with all applicable laws (including,
without limitation, federal or state securities laws) and all of the
capital stock of Development-II owned by the Operating Partnership, as
described in the Prospectus, is owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim, restriction or
equities.
(v) SP Corp. has been duly formed and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has all corporate and authority necessary to own or hold
its properties and to conduct the business in which it is engaged as
described in the Registration Statement and the Prospectus. All of the
issued and outstanding capital stock of SP Corp. has been duly authorized
and validly issued and is fully paid and non-assessable, is owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim, restriction or equities and has been offered and sold
in compliance with all applicable laws (including, without limitation,
federal or state securities laws).
(vi) Each of the Property Affiliates has been duly organized and
is validly existing as a limited partnership, limited liability company or
other entity in good standing under the laws of the jurisdiction in which
it is organized, and has all power and authority necessary to own or hold
its properties and to conduct the business in which it is engaged. Except
as set forth in the Prospectus, all of the partnership interests,
membership interests or other equity interests, as the case may be, of each
Property Affiliate have been duly and validly authorized and issued, are
fully paid and non-assessable and all of such interests owned directly or
indirectly by the Company and the Operating Partnership, as described in
the Prospectus, are owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim, restriction or equities.
(vii) (A) This Agreement has been duly and validly authorized,
executed and delivered by the Operating Partnership, and has been duly and
validly executed and delivered by the Company, and assuming due
authorization, execution and delivery by the Underwriters and due
authorization by the Company, is a valid and binding agreement of the
Operating Partnership; and (B) the partnership agreement of each Property
Affiliate has been duly and validly authorized, executed and delivered by
the Operating Partnership, and each such agreement and the Operating
Partnership Agreement have been duly and validly executed and delivered by
the Company, and assuming due authorization by the Company, each such
agreement is a valid and binding agreement of the parties thereto,
enforceable against such parties in accordance with its terms.
(viii) To the knowledge of such counsel, the execution, delivery
and performance of this Agreement by each of the Transaction Entities and
the consummation of the transactions contemplated hereby will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which either
of the Transaction Entities or their subsidiaries is a party or by which
either of the Transaction Entities or their subsidiaries is bound or to
which any of the Properties or other assets of either of the Transaction
Entities or their subsidiaries is subject, or (ii) conflict with or result
in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over either of the Transaction Entities or their subsidiaries or any of
their properties or assets; and except for the registration of the Shares
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Transaction Entities and the
consummation of the transactions contemplated hereby.
(ix) The execution, delivery and performance of this Agreement by
each of the Transaction Entities and the consummation of the transactions
contemplated hereby will not conflict with or result in any violation of
the provisions of the charter, by-laws, certificate of limited partnership
or agreement of limited partnership of either of the Transaction Entities
or their subsidiaries.
(x) To the knowledge of such counsel, other than as set forth in
the Prospectus and other than rights of persons whose securities are
already registered under the Securities Act, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Securities
Act.
(xi) To the knowledge of such counsel, there are no legal or
governmental proceedings pending to which either Transaction Entity or
their subsidiaries is a party or of which any property or assets of either
Transaction Entity or their subsidiaries is the subject which are not
disclosed in the Prospectus and which, if determined adversely to such
Transaction Entity or subsidiary, might reasonably be expected to have a
material adverse effect on the consolidated financial position,
shareholders' equity, results of operations, business or prospects of the
Company; and to the knowledge of such counsel no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(xii) To the knowledge of such counsel, there are no contracts or
other documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been described in the Prospectus
or filed as exhibits to the Registration Statement or incorporated therein
by reference as permitted by the Rules and Regulations.
(xiii) To the knowledge of such counsel, no relationship, direct
or indirect, exists between or among either of the Transaction Entities on
the one hand, and the trustees, officers, shareholders, customers or
suppliers of the Transaction Entities on the other hand, which is required
to be described in the Prospectus which is not so described.
(xiv) To the knowledge of such counsel, each Transaction Entity
is in compliance In all material respects with all presently applicable
provisions of ERISA; to the knowledge of such counsel, no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) for which either Transaction Entity would have
any liability; neither Transaction Entity has incurred or to the knowledge
of such counsel, expects to incur, liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) section 412 or 4971 of the Code; and each "pension plan" for which
either Transaction Entity would have any liability that is intended to be
qualified under section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(xv) To the knowledge of such counsel, no Transaction Entity or
Property Affiliate is in violation of its charter, by-laws, certificate of
limited partnership, agreement of limited partnership, or other similar
organizational document, or, to the knowledge of such counsel, has a
default been asserted in any respect, and it has not been asserted that any
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to
which it is a party or by which it is bound or to which any of the
Properties or any of its other properties or assets is subject.
(xvi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of the Company (except as have been obtained or made under the
Securities Act and the Exchange Act or such as may be required under state
securities, real estate syndication or Blue Sky laws governing the purchase
and distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement.
(xvii) Neither Transaction Entity or their subsidiaries is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission
thereunder. The Shares have been approved for listing on the New York
Stock Exchange upon notice of issuance.
(xviii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act (other than the financial statements and related schedules
and financial information and data included therein, as to which no opinion
need be rendered), at the time they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder.
(xix) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) of the Rules and Regulations specified in such opinion on the
date specified therein and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission.
(xx) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to such
Delivery Date (other than the financial statements and related schedules
and other financial and statistical data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and Regulations.
(xxi) The statements contained in the Prospectus under the
captions "The Properties," "Management," "Federal Income Tax Considerations
for Shareholders," "Risk Factors," "Description of Debt Securities,"
"Description of Preferred Shares," "Description of Warrants," and "Federal
Income Tax Considerations with Respect to the Trust and the Operating
Partnership," insofar as those statements are descriptions of contracts,
agreements or other legal documents, or they describe federal statutes,
rules and regulations, and except to the extent such statements are
statistics or calculations constitute a fair summary thereof.
Such counsel shall state that Rogers & Wells, counsel for the
Agents, may rely on its opinion in Section 7(d)(A)(ii) with regard to the
formation of the Operating Partnership for the purpose of rendering its
opinion as required by Section 7(e).
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the Commonwealth of Pennsylvania and the laws of the
State of Maryland; (ii) as to matters of Maryland law, state that its
opinion is given solely in reliance upon the opinion of Weinberg & Green
LLC; (iii) state that its opinion does not address (A) Federal Reserve
Board margin regulations; (B) Federal or state antitrust and unfair
competition laws and regulations; (C) Local Laws (as defined in The Legal
Opinion Accord of the ABA Section of Business Law (1991); (D) compliance
with fiduciary duty requirements; (E) Federal and state racketeering laws
and regulations; (F) Federal and state health and safety laws and
regulations; and (G) Federal and state laws, regulations and policies
concerning (x) national and local emergency, (y) possible judicial
deference to acts of foreign states, and (z) criminal and civil forfeiture
laws; and (iv) in giving the opinion referred to in subclause (B) in
Section 7(d)(A)(vii), state that such opinion with respect to the
enforceability of such documents may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating
to or affecting creditors' rights generally and by general equitable
principles. Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated such Delivery
Date, in form and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement and the
Prospectus, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that the Registration
Statement, as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except to the extent of the
opinion contained in Section 7(d)(A)(xx), and may state that such counsel
expresses no belief with respect to the financial statements and notes
thereto and other financial and statistical data included or incorporated
by reference in, or omitted from, the Registration Statement or the
Prospectus.
(B) Weinberg & Green LLC shall have furnished to the
Representatives its written opinion, as Maryland counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly formed and is validly existing
as a real estate investment trust in good standing under and by virtue of
the laws of the State of Maryland, and has all trust power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged as described in the Registration Statement and the
Prospectus, and to enter into and perform its obligations under this
Agreement.
"
(ii) The Company has an authorized capitalization as set
forth in the Prospectus under the caption "Capitalization," and all of the
issued shares of beneficial interest of the Company (other than the Shares)
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform in all material respects to the description thereof
contained in the Prospectus.
(iii) The Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable. Upon payment of
the purchase price and delivery of the Shares in accordance herewith, each
of the Underwriters will receive good, valid and, subject to the excess
share restrictions set forth in Article VII of the Company's Declaration of
Trust, marketable title to the Shares, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims, restrictions
and equities. The terms of the Shares conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of the certificates to be used to evidence the Shares
are in due and proper form and comply with all applicable legal
requirements. The issuance of the Shares is not subject to any preemptive
or other similar rights arising under the Declaration of Trust or by-laws
of the Company, Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland, as amended, or any agreement or other
instrument to which the Company is a party known to such counsel.
(iv) This Agreement has been duly and validly authorized,
executed and delivered by the Company, and assuming due authorization,
execution and delivery by the Underwriters and the Operating Partnership,
is a valid and binding agreement of the Company.
(v) To the knowledge of such counsel, the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not conflict with
or result in any violation of the provisions of any statute or any order,
rule or regulation of any court or governmental agency or body of the State
of Maryland that has jurisdiction over the Company or any of its properties
or assets.
(vi) The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby will not conflict with or result in any violation of
the provisions of the Declaration of Trust or by-laws of the Company.
(vii) To the knowledge of such counsel, there are no legal
or governmental proceedings pending to which the Company is a party or of
which any property or assets of the Company is the subject which are not
disclosed in the Prospectus and which, if determined adversely to the
Company, might reasonably be expected to have a material adverse effect on
the consolidated financial position, shareholders' equity, results of
operations, business or prospects of the Company; and to the knowledge of
such counsel no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(viii) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official in
the State of Maryland is required on the part of the Company (except as may
be required under state securities laws) for the valid issuance and sale of
the Shares to the Underwriters as contemplated by this Agreement.
Such counsel shall state that Rogers & Wells, counsel for the Underwriters,
may rely on its opinion.
(e) The Representatives shall have received from Rogers & Wells,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Shares, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in, or incorporated by reference in, the
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(g) With respect to the letter of Ernst & Young LLP referred to in the
preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Representatives a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(h) The Transaction Entities shall have furnished to the
Representatives a certificate, dated such Delivery Date, of the Chairman of
the Board, Chief Executive Officer, President or a Vice President of the
Company and the chief financial officer of the Company (in each case, for
the Company and for the Company as general partner of the Operating
Partnership) stating that:
(i) The representations, warranties and agreements of the
Transaction Entities in Section 1 are true and correct as of such Delivery
Date; the Transaction Entities complied with all of their agreements
contained herein; and the conditions set forth in Sections 7(a) and 7(i)
have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
(with respect to the Prospectus, in light of the circumstances in which
they were made), and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
(i) (i) None of the Transaction Entities or their subsidiaries or any
Property shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not have
been any change in the capital stock or long-term debt of either
Transaction Entity or any change, or any development involving a
prospective change, in or affecting any Property Affiliate or Property or
the general affairs, management, financial position, shareholders' equity
or results of operations of either Transaction Entity, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Shares
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(k) The New York Stock Exchange, Inc. shall have approved the Shares
for listing, subject only to official notice of issuance.
(l) The Transaction Entities shall not have failed at or prior to such
Delivery Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them
hereunder at or prior to such Delivery Date.
(m) On the First Delivery Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Shares as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Transaction Entities in connection with the issuance and sale
of the Shares as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(n) The Representatives shall have been furnished with the written
agreements referred to in Section 5(i) hereof.
(o) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates and documents as the Underwriters
shall have reasonably requested.
(p) In the event that the Underwriters exercise their option provided
in Section 2 hereof to purchase all or any portion of the Option Shares,
the representations and warranties of the Transaction Entities contained
herein and the statements in any certificates furnished by the Transaction
Entities hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Underwriters shall have
received:
(i) A certificate, dated such Date of Delivery, of the Chairman
of the Board, Chief Executive Officer, President or a Vice President of the
Company and of the chief financial officer of the Company (in each case,
for the Company and for the Company as the general partner of the Operating
Partnership) confirming that the certificate delivered on the First
Delivery Date pursuant to Section 7(h) hereof remains true and correct as
of such Date of Delivery.
(ii) The favorable opinions of Wolf, Block, Schorr and Solis-
Cohen LLP, counsel for the Transaction Entities, and Weinberg & Green LLC,
Maryland counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Shares to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Section 7(d) hereof.
(iii) The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Shares to
be purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section (e) hereof.
(iv) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letters furnished to
the Underwriters pursuant to Section 7(f) hereof.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
Any certificate or document signed by any officer of the Transaction
Entities and delivered to the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the
Transaction Entities to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the satisfaction on and as of any Date of Delivery
of the conditions set forth in this Section 7, except that, if any Date of
Delivery is other than the First Delivery Date, the certificates, opinions
and letters referred to in Sections 7(d) through 7(h) hereof shall be dated
the Date of Delivery in question and the opinions called for by Sections
7(d) and 7(e) hereof shall be revised to reflect the sale of Option Shares.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification
of the effectiveness of the Registration Statement or such post-effective
amendment has been released by the Commission.
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If, on either Delivery
Date, any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the Shares which the defaulting Underwriter agreed
but failed to purchase on such Delivery Date in the respective proportions
which the number of Firm Shares set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total number of Firm Shares set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Shares on such Delivery Date if the total
number of Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of
Shares to be purchased on such Delivery Date, and any remaining non-
defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of Shares which it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have
the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Shares to be purchased on such
Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the Shares
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the
Second Delivery Date, the obligation of the Underwriters to purchase, and
of the Company to sell, the Option Shares) shall terminate without
liability on the part of any non-defaulting Underwriter or the Transaction
Entities, except that the Transaction Entities will continue to be liable
for the payment of expenses to the extent set forth in Sections 6 and 12.
As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party
not listed in Schedule 1 hereto who, pursuant to this Section 9, purchases
Initial Shares which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Transaction Entities for damages caused by its
default. If other underwriters are obligated or agree to purchase the
Shares of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary
in the Registration Statement, the Prospectus or in any other document or
arrangement.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transaction Entities jointly and severally, shall 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, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or
all of the Shares under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading (with respect to
the Prospectus, in light of the circumstances under which they were made),
or (iii) any act or failure to act or any alleged act or failure to act by
any Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided
that the Transaction Entities shall not be liable under this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or
willful misconduct), and shall reimburse each Underwriter and each such
officer, employee or controlling person for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Transaction Entities shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in
reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the
Transaction Entities may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless each Transaction Entity, its officers and employees, each of
its trustees, and each person, if any, who controls each Transaction Entity
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which each Transaction Entity or any such trustee, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
(B) in any Blue Sky Application or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse each Transaction Entity and any such
trustee, officer or controlling person for any legal or other expenses
reasonably incurred by each Transaction Entity or any such trustee, officer
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to
each Transaction Entity or any such trustee, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 10
for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the
right to employ its own counsel, with such counsel, in the case of the
Underwriters, to represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Transaction Entities under this Section 10 if, in
the reasonable judgment of the Representatives, it is advisable for the
Underwriters and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Transaction
Entities. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Transaction Entities on
the one hand and the Underwriters on the other from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Transaction Entities on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Transaction Entities on the one hand and
the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting expenses)
received by the Transaction Entities, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the Shares purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Shares under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Transaction Entities or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Transaction Entities
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section were to be 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 into
account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 10(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10(d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. 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 as provided in this Section 10(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The Underwriters severally confirm and each Transaction Entity
acknowledges that the statements with respect to the public offering of the
Shares by the Underwriters set forth on the cover page of, the legend
concerning stabilization on the inside front cover of, the concession and
reallowance figures appearing under the caption "Underwriting" and,
pursuant to Item 508 of Regulation S-K of the Securities Act, the seventh,
eighth and ninth paragraphs of the section captioned "Plan of Distribution"
in, the Preliminary Prospectus and the comparable material in the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
11. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Shares if, prior to
that time, any of the events described in Sections 7(i), 7(j) or 7(l),
shall have occurred or if the Underwriters shall decline to purchase the
Shares for any reason permitted under this Agreement.
12. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall fail to
tender the Shares for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Transaction Entities to
perform any agreement on their part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be
fulfilled by the Transaction Entities is not fulfilled, the Transaction
Entities will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of
the Shares, and upon demand the Transaction Entities shall pay the full
amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters,
the Transaction Entities shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
13. NOTICES, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant to Section
10(c), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., 3 World Financial Center, 10th Floor, New York, NY 10285;
(b) if to the Transaction Entities shall be delivered or sent by
mail, telex or facsimile transmission to the Company, 65 Valley Stream
Parkway, Malvern, PA 19355, Attention: General Counsel (Fax: 610-644-
2175);
provided, however, that any notice to an Underwriter pursuant to Section
10(c) shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto
by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
The Transaction Entities shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by Lehman Brothers Inc.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Transaction
Entities and their respective personal representatives and successors.
This Agreement and the terms and provisions hereof are for the sole benefit
of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Transaction Entities contained in this
Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 10(b) of this Agreement shall be deemed
to be for the benefit of trustees of the Company, officers of the Company
who have signed the Registration Statement and any person controlling the
Transaction Entities within the meaning of section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 14, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
15. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Transaction Entities and the Underwriters contained in
this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Shares
and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
16. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For purposes
of this Agreement, (a) "business day" means any day on which the New York
Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of New York.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
19. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
LIBERTY PROPERTY TRUST
By: /s/ WILLARD G. ROUSE, III
------------------------------
Name: Willard G. Rouse, III
Title: Chief Executive Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
its sole general partner
By: /S/ WILLARD G. ROUSE, III
------------------------------
Name: Willard G. Rouse, III
Title: Chief Executive Officer
Accepted:
Lehman Brothers Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
A.G. Edwards & Sons, Inc.
The Robinson-Humphrey Company, LLC
Smith Barney Inc.
Wheat, First Securities, Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: Lehman Brothers Inc.
By: /s/ MICHAEL REID
------------------------------
Authorized Representative
SCHEDULE 1
Number of
Underwriters Shares
- ------------- ---------
Lehman Brothers Inc........................................ 1,333,500
Donaldson, Lufkin & Jenrette Securities Corporation........ 1,333,300
A.G. Edwards & Sons, Inc................................... 1,333,300
The Robinson-Humphrey Company, LLC......................... 1,333,300
Smith Barney Inc........................................... 1,333,300
Wheat, First Securities, Inc............................... 1,333,300
---------
Total...................................................... 8,000,000
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