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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): February 20, 1998
(February 18, 1998)
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
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ITEM 5: OTHER EVENTS
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On February 18, 1998, Liberty Property Trust (the "Trust") priced a public
offering of 1,702,128 of its Common Shares of Beneficial Interest, par value
$0.001 per share. The aggregate proceeds to the Trust from such offering were
$42.8 million, and the aggregate underwriting discounts and commissions payable
to the Underwriter (as defined below) in connection with such offering were
$450,000. A. G. Edwards & Sons, Inc. ( the "Underwriter") acted as underwriter
of such offering. The Underwriting Agreement relating to such offering is filed
as Exhibit 1.1 to this Report.
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 February 18, 1998, by and among the Trust,
Liberty Property Limited Partnership and the Underwriter.
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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: February 20, 1998 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: February 20, 1998 BY: /s/ George J. Alburger, Jr.
-------------------------------------
NAME: George J. Alburger, Jr.
TITLE: Chief Financial Officer
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EXHIBIT INDEX
1.1 Underwriting Agreement, dated February 18, 1998, by and among the
Trust, Liberty Property Limited Partnership and the Underwriter.
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EXHIBIT 1.1
1,702,128 Shares
Common Shares of Beneficial Interest
($0.001 Par Value)
UNDERWRITING AGREEMENT
February 18, 1998
A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103
The undersigned, Liberty Property Trust, a Maryland real estate
investment trust (the "Company"), the sole general partner and a limited partner
of Liberty Property Limited Partnership, a Pennsylvania limited partnership (the
"Operating Partnership"), hereby confirms its agreement with you (the
"Underwriter") as follows:
1. Description of Shares. The Company proposes to issue and sell to you
1,702,128 shares (the "Shares") of its Common Shares of Beneficial Interest, par
value $0.001 per share (the "Common Shares"). The Common Shares are more fully
described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $25.1175 per
share, the Shares.
The Company will deliver definitive certificates for the Shares at the
office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York
("Edwards' Office"), or such other place as you and the Company may mutually
agree upon (the "Place of Closing"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 10:00 a.m., St. Louis time, on February 23,
1998, or at such other time and date not later than three full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made
available to you for inspection at Edwards' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least one full business day prior to the Closing Date.
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3. Representations, Warranties and Agreements of the Company and the
Operating Partnership. (a) The Company and the Operating Partnership, jointly
and severally, represent and warrant to and agree with you that, as of the date
hereof:
(i) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"); registration
statements on Form S-3 (Registration Nos. 333-22211 (the "First
Registration Statement") and 333-43267 (the "Second Registration
Statement")), including the prospectus relating to the Shares, debt
securities of the Operating Partnership and certain other securities
referred to therein, any of which may be offered from time to time in
accordance with Rule 415 under the Act, and such amendments to such
registration statements as may have been required to the date of this
Agreement, have been prepared by the Company and the Operating
Partnership pursuant to and in conformity with the requirements of the
Act, and the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, were
filed with the Commission under the Act and the First Registration
Statement was declared effective on March 7, 1997 and the Second
Registration Statement was declared effective on January 7, 1998.
Copies of such registration statements, including any amendments,
financial statement schedules and exhibits thereto, each related
preliminary prospectus contained therein, the financial statements
incorporated by reference in each such preliminary prospectus have
heretofore been delivered by the Company to you. A prospectus
supplement, as first filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations (the "Prospectus Supplement"), including
the related prospectus setting forth or incorporating by reference the
terms of the offering, sale and plan of distribution of the Shares and
additional information concerning the Company, the Operating
Partnership and its subsidiaries (the "Subsidiaries") and their
business has been or will be so prepared and will be filed pursuant to
Rule 424(b) of the Rules and Regulations on or before the second
business day after the date hereof (or such earlier time as may be
required by the Rules and Regulations). The term "Registration
Statement" as used herein means both the First Registration Statement
and the Second Registration Statement, each as amended at the time it
or any amendment thereto became effective under the Act (the "Effective
Date"), including 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 the Second Registration
Statement as of its Effective Date pursuant to paragraph (b) of Rule
430A of the Rules and Regulations. Any document filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") after the Effective Date of the Second Registration Statement and
incorporated by reference in the Prospectus shall be deemed to
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be included in the Registration Statement and the Prospectus as of the
date of such filing. The term "Prospectus" as used herein means the
Prospectus Supplement and the related prospectus supplemented by such
Prospectus Supplement (including, in the case of such prospectus, the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act as of the date of the Prospectus Supplement and the
Closing Date, as the case may be). The term "Preliminary Prospectus" as
used herein shall mean the preliminary prospectus included in the
Second Registration Statement.
(ii) The Commission has not issued, and is not to the
knowledge of the Company or the Operating Partnership threatening to
issue, an order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, nor has the Commission, to the knowledge
of the Company or the Operating Partnership, instituted proceedings for
that purpose. Each Preliminary Prospectus at its date of issue, the
Registration Statement at its Effective Date, and the Prospectus at its
date of issue and any amendments or supplements thereto contains or
will contain, as the case may be, all statements which are required to
be stated therein by, and in all material respects conform or will
conform, as the case may be, to the requirements of, the Act and the
Rules and Regulations. Neither the Registration Statement nor any
amendment thereto, as of the applicable Effective Date, and neither the
Prospectus nor any supplement thereto, as of its applicable issue date
or the Closing Date, contains or will contain, as the case may be, any
untrue statement of a material fact, or omits or will omit to state any
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; provided, however, that the Company and the
Operating Partnership make no representation or warranty as to
information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon,
and in conforming with, written information furnished to the Company by
you specifically for use in the preparation thereof.
(iii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time
they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (the "1934 Act Rules
and Regulations"), and, when read together and with the other
information in the Prospectus, at the time the applicable Registration
Statement became effective and at the Closing Date, did not or will
not, as the case may be, 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.
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(iv) The filing of the applicable Registration Statement and
the execution and delivery of this Agreement by the Company and the
Operating Partnership have been duly authorized by the Board of
Trustees of the Company; this Agreement constitutes a valid and legally
binding obligation of the Company and the Operating Partnership
enforceable in accordance with its terms (except to the extent the
enforceability of the indemnification and contribution provisions of
Section 6 hereof may be limited by public policy considerations as
expressed in the Act as construed by courts of competent jurisdiction,
and except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and by general principles of equity); the issue and sale of
the Shares by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in
a violation of the Company's declaration of trust or bylaws or the
Operating Partnership's agreement of limited partnership, each as
amended to the date hereof or the Closing Date, as the case may be, or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or assets of the
Company or of the Operating Partnership or the Subsidiaries under, any
statute, or under any indenture, mortgage, deed of trust, note, loan
agreement, sale and leaseback arrangement or other agreement or
instrument to which any of the Company, the Operating Partnership or
the Subsidiaries is a party or by which they are bound or to which any
of the properties or assets of the Company, the Operating Partnership
or the Subsidiaries is subject, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, the Operating Partnership or the Subsidiaries or their
properties, except to such extent as does not materially adversely
affect the business of the Company, the Operating Partnership and the
Subsidiaries taken as a whole; no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the consummation of the
transactions herein contemplated, except such as may be required by the
National Association of Securities Dealers, Inc. (the "NASD"), the New
York Stock Exchange, Inc. or under the Act or the Rules and Regulations
or any state securities laws.
(v) Neither the Company, nor the Operating Partnership or any
of the Subsidiaries, taken as a whole, has sustained since the date of
the latest audited financial statements included or incorporated by
reference 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. Except as contemplated in the
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Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company,
the Operating Partnership and the Subsidiaries, taken as a whole, have
not incurred any material liabilities or material obligations, direct
or contingent, other than in the ordinary course of business, or
entered into any material transactions not in the ordinary course of
business, and there has not been any material change in the capital
stock or long-term debt of the Company and the Units of limited
partnership interest (the "Units") or long-term debt of the Operating
Partnership and the Subsidiaries, taken as a whole, or any material
adverse change in the condition (financial or other), net worth,
business, affairs, management, prospects or results of operations of
the Company, the Operating Partnership and the Subsidiaries, taken as a
whole. The Company, the Operating Partnership and the Subsidiaries have
filed all necessary federal, state and foreign income and franchise tax
returns and paid all taxes shown as due thereon; all tax liabilities
are adequately provided for on the books of the Company, the Operating
Partnership and the Subsidiaries except to such extent as would not
materially adversely affect the business of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole; the Company, the
Operating Partnership and the Subsidiaries have made all necessary
payroll tax payments and are current and up-to-date as of the date of
this Agreement; and the Company, the Operating Partnership and the
Subsidiaries have no knowledge of any tax proceeding or action pending
or threatened against the Company, the Operating Partnership or the
Subsidiaries which might materially adversely affect their business or
property, taken as a whole.
(vi) Except as described in the Prospectus, there is not now
pending or, to the knowledge of the Company or the Operating
Partnership, threatened or contemplated, any action, suit or proceeding
to which any of the Company, the Operating Partnership or the
Subsidiaries is a party before or by any court or public, regulatory or
governmental agency or body which might be expected to result
(individually or in the aggregate) in any material adverse change in
the condition (financial or other), business or prospects of the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole, or might be expected to materially and adversely affect
(individually or in the aggregate) the properties or assets thereof,
taken as a whole, and there are no contracts or documents of the
Company, the Operating Partnership and the Subsidiaries which are
required to be filed as exhibits to the applicable Registration
Statement by the Act or by the Rules and Regulations which have not
been filed as exhibits to the applicable Registration Statement or
incorporated by reference therein.
(vii) The Company has duly and validly authorized Common
Shares as described in the Prospectus; all outstanding Common
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Shares conform, and the Shares, when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued
and paid for will be, duly authorized, validly issued, fully paid and
nonassessable; and the issuance of the Shares to be purchased from the
Company hereunder is not subject to preemptive rights.
(viii) Each of the Company, the Operating Partnership and the
Subsidiaries has been duly incorporated or formed, as the case may be,
and is a validly existing corporation, real estate investment trust or
limited partnership, or other legal entity, as the case may be, in good
standing under the laws of the state or other jurisdiction in which it
is incorporated or formed, as the case may be. The Company, the
Operating Partnership and the Subsidiaries have full power and
authority to own, lease and operate their properties and conduct their
businesses as described in the Prospectus; each of the Company, the
Operating Partnership and the Subsidiaries is duly qualified or
registered to do business and is in good standing in each state or
other jurisdiction in which its ownership or leasing of property or
conduct of business legally requires such qualification, except where
the failure to be so qualified would not have a material adverse effect
on the ability of the Company and the Operating Partnership, considered
as a single enterprise, to conduct their business as described in the
Prospectus; and the outstanding shares of capital stock or ownership
interests of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Operating
Partnership free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim and are not the subject of any agreement or
understanding with any person, except as set forth in the Prospectus.
(ix) Ernst & Young LLP, the accounting firm which has
certified the financial statements incorporated by reference in the
Prospectus and forming a part of the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations.
(x) The consolidated financial statements of the Company
together with the related schedules and notes thereto, set forth or
included or incorporated by reference in the Registration Statement and
Prospectus fairly present the consolidated financial condition of the
Company as of the dates indicated and the consolidated results of
operations, shareholders' equity and cash flows for the periods therein
specified, in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as
otherwise stated therein). The summary and selected financial and
statistical data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from
the financial
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statements, have been compiled on a basis consistent with the financial
statements presented therein. In addition, the pro forma financial
statements of the Company, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the basis described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. Furthermore, all financial statements required by
Rule 3-14 of Regulation S-X ("Rule 3-14") have been included or
incorporated by reference in the Registration Statement and the
Prospectus and any such financial statements are in conformity with the
requirements of Rule 3-14. No other financial statements are required
to be set forth or to be incorporated by reference in the Registration
Statement or the Prospectus under the Act or the Rules and Regulations
thereunder.
(xi) Neither the Company, the Operating Partnership nor any of
the Subsidiaries is in default with respect to any contract or
agreement to which it is a party; provided that this representation
shall not apply to defaults which in the aggregate are not materially
adverse to the condition, financial or other, or the business or
prospects of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole.
(xii) Neither the Company, the Operating Partnership nor the
Subsidiaries is in violation of any laws, ordinances or governmental
rules or regulations to which it is subject, including, without
limitation, Section 13 of the Exchange Act, and neither the Company,
the Operating Partnership nor any of the Subsidiaries has failed to
obtain any license, permit, franchise, easement, consent, or other
governmental authorization necessary to the ownership, leasing and
operation of its properties or to the conduct of its business, which
violation or failure would materially adversely affect the business,
operations, affairs, properties, prospects, profits or condition
(financial or other) of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole. Neither the Company, the Operating
Partnership nor the Subsidiaries has, at any time during the past five
years, (A) made any unlawful contributions to any candidate for any
political office, or failed fully to disclose any contribution in
violation of law, or (B) made any payment to any state, federal or
foreign government official, or other person charged with similar
public or quasi-public duty (other than payments required or permitted
by applicable law).
(xiii) There are no holders of securities of the Company
having rights to registration thereof or preemptive rights to
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purchase Common Shares except as disclosed in the Prospectus and
registration rights of persons whose securities have been registered
under the Act. Holders of any such registration rights have waived such
rights with respect to the offering being made by the Prospectus.
(xiv) Except as described in the Prospectus, the Company, the
Operating Partnership and the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent licenses,
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor the
Operating Partnership or the Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect
to any patents, patent licenses, trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the conduct of the business, operations, financial condition
or income of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole.
(xv) The Company, the Operating Partnership and each of the
Subsidiaries have good and marketable title to all properties and
assets described in the Prospectus as owned by them, free and clear of
all liens, charges, encumbrances or restrictions, except such as (i)
are described in the Prospectus or (ii) are not material to the
business of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole. The Company, the Operating Partnership
and each of the Subsidiaries have valid, subsisting and enforceable
leases for the properties described in the Prospectus as leased by one
of them as lessee, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
properties by the Company, the Operating Partnership and such
Subsidiaries; to the knowledge of the Company and the Operating
Partnership, the use and occupancy of each of the properties of the
Company and the Operating Partnership complies in all material respects
with all applicable codes and zoning laws and regulations, except for
such failures to comply that would not have a material adverse effect
on the business operations, use or value of such property; neither the
Company nor the Operating Partnership has knowledge of any pending or
threatened condemnation or zoning change that will in any material
respect affect the size of, use of, improvements of, construction on,
or access to any of the properties of the Company and the Operating
Partnership or knowledge of any pending or threatened proceeding or
action that will in any manner material to the business of the Company
and the Operating Partnership, taken as a whole, affect the size of,
use of, improvements on, construction on, or access to any of the
properties of the Company and the Operating Partnership.
(xvi) Title insurance in favor of the Company or the
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Operating Partnership (or the Subsidiary that holds title to such
property) is maintained with respect to each of the properties owned by
the Company or the Operating Partnership in an amount at least equal to
the greater of (i) the cost of acquisition of such property of (ii) the
cost of construction by the Company or the Operating Partnership of the
improvements located on such property (measured at the time of such
construction), except, in each case, where the failure to maintain such
title insurance would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and the Operating Partnership, taken
as a whole. Title insurance in favor of the mortgagee with respect to
properties mortgaged by the Company, the Operating Partnership or any
Subsidiary is maintained in an amount equal to the maximum commitment
by such mortgagee of the related mortgage loan.
(xvii) (a) Except as disclosed in the Prospectus, each of the
Company and the Operating Partnership has no knowledge of (a) the
presence of any hazardous substances, Hazardous Materials (defined
below) on any of its properties, except that which is in compliance
with all applicable Environmental Laws (as hereinafter defined) or (b)
any spills, releases, discharges or disposals of Hazardous Materials
that have occurred or are presently occurring on or from its
properties, which presence or occurrence would individually or in the
aggregate have a material adverse effect on the conduct of the
business, operations, financial condition or income of the Company, the
Operating Partnership and the Subsidiaries taken as a whole.
(b) Except as disclosed in the Prospectus, each of the
Company, the Operating Partnership and the Subsidiaries and their
properties (i) are in compliance with all applicable Environmental
Laws, (ii) have received all permits, licenses or other approvals
required under applicable Environmental Laws to conduct its business
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not individually or in the
aggregate have a material adverse effect on the conduct of the
business, operations, financial condition or income of the Company, the
Operating Partnership and the Subsidiaries taken as a whole.
(c) The Operating Partnership or the Company has engaged
environmental consultants to perform phase I environmental site
assessments in general accordance with the ASTM Standard to identify
any "recognized environmental conditions" (as defined in the ASTM
Standard prior to the purchase of properties by the Operating
Partnership or the Company. On
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the basis of such phase I environmental site assessments, or such
additional investigations as may have been performed based on the
findings of a phase I assessment, and, except as described in the
Prospectus, the Company and the Operating Partnership have reasonably
concluded that no such recognized environmental conditions exist which
would, individually or in the aggregate, have a material adverse effect
on the conduct of the business, operations, financial condition or
income of the Company, the Operating Partnership and the Subsidiaries
taken as a whole.
(d) As used herein, "Hazardous Material" shall mean substances
defined or listed as "hazardous substances," "toxic substances,"
"hazardous waste," "hazardous materials" or "pollutants" in or under
any applicable Federal, state or local law relating to the protection
of public health and the environment, including, without limitation,
any flammable explosives, radioactive materials, asbestos,
polychlorinated biphenyls ("PCBs") and petroleum products and
by-products.
(e) As used herein, "Environmental Law" shall mean all laws,
regulations or ordinances of any Federal, state or local governmental
authority having or claiming jurisdiction over any of the Properties (a
"Governmental Authority") that are designed to protect public health
and the environment or regulate the handling of Hazardous Materials,
including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 5101 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section
6901 et seq.), the Federal Water Pollution Control Act, as amended (33
U.S.C. Section 1251 et seq.), and the Clean Air Act, as amended (42
U.S.C. Section 7401 et seq.), and any and all analogous state or local
laws.
(xviii) No labor disturbance exists with the employees of the
Company, the Operating Partnership or the Subsidiaries or, to the
knowledge of the Company and the Operating Partnership, is imminent
which would have a material adverse effect on the Company, the
Operating Partnership and the Subsidiaries taken as a whole.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Shares, and the Company is not aware of any such
action taken or to be taken by affiliates of the Company.
(xx) Neither the Company nor the Operating Partnership is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
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(xxi) The mortgages and deeds of trust encumbering the
properties and assets of the Company, the Operating Partnership and the
Subsidiaries described in the Prospectus are not convertible into
equity securities of the respective entity that owns such properties
and assets.
(xxii) Property and casualty insurance in favor of the Company
or the Operating Partnership is maintained with respect to each of the
properties owned by it in an amount and on such terms as is reasonable
and customary for businesses of this type.
(xxiii) The Company has continuously been organized and
operated in conformity with the requirements for qualification as a
real estate investment trust under the Internal Revenue Code of 1986,
as amended (the "Code") for all taxable years commencing with its
taxable year ended December 31, 1994. The Company has filed an election
to be taxed as a real estate investment trust for all subsequent
taxable years, and no such election has been terminated. The Company's
proposed method of operation will permit it to continue to meet the
requirements for taxation as a real estate investment trust under the
Code.
(xxiv) Except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any property, or a
subtenant thereof, has entered into a lease or a sublease, if
applicable, for the possession of such property; except as disclosed in
the Prospectus and to the knowledge of the Company and the Operating
Partnership, each such lease is in full force and effect and neither
the Company nor the Operating Partnership has notice of any defense to
the obligations of the tenant thereunder or any claim asserted or
threatened by any person or entity, the absence or unenforceability of
which lease, or which defense or claim, if sustained, would have a
material adverse effect on the conduct of the business, operations,
financial condition or income of the Company, the Operating Partnership
and the Subsidiaries, taken as a whole; and except as disclosed in the
Prospectus, the lessor under each lease has complied with its
obligations under such lease in all material respects and neither the
Company nor the Operating Partnership has notice of any default by the
tenant under such lease which, individually or in the aggregate with
other such defaults as to which the Company or the Operating
Partnership has been given notice, would have a material adverse effect
on the conduct of the business, operations, financial condition or
income of the Company, the Operating Partnership and the Subsidiaries,
taken as a whole.
(xxv) Any certificate signed by any officer of the Company or
by the Company as general partner of the Operating Partnership and
delivered to you or to your counsel shall be
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deemed a representation and warranty by the Company or the
Operating Partnership, as the case may be, to you as to the
matters covered thereby.
(xxvi) A registration statement relating to the Common Shares
has been declared effective by the Commission pursuant to the Exchange
Act and the Common Shares are duly registered thereunder. The Shares
have been approved for listing on the New York Stock Exchange, subject
to notice of issuance or sale of the Shares, as the case may be.
4. Additional Covenants. The Company covenants and agrees with you
that:
(a) The Company will (i) prepare a Prospectus Supplement
setting forth the number of Shares covered thereby and such of their
terms, if any, as are not otherwise specified in the Prospectus
pursuant to which the Shares are being offered and sold, the name of
the Underwriter and the number of Shares which the Underwriter has
agreed to purchase, the price at which the Shares are to be purchased
by the Underwriter from the Company and such other information as the
Underwriter and the Company deem appropriate in connection with the
offering of the Shares, and file the Prospectus in a form approved by
you pursuant to Rule 424(b) under the Act no later than the
Commission's close of business on the second business day following the
date of the determination of the offering price of the Shares; (ii) not
file (and the Operating Partnership will not so file) any amendment to
the Registration Statement or supplement to the Prospectus, in either
case, relating to the offering and sale of the Shares, of which you
shall not previously have been advised and furnished with a copy or to
which you shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations; and (iii) promptly notify
you after it shall have received notice of the time when any amendment
to the Registration Statement relating to the offering and sale of the
Shares becomes effective or when any supplement to the Prospectus
relating to the offering and sale of the Shares has been filed.
(b) The Company or the Operating Partnership, as the case may
be, will advise you promptly, after it shall receive notice or obtain
knowledge, of any request of the Commission for amendment of the
Registration Statement relating to the offering and sale of the Shares
or for supplement to the Prospectus relating to the offering and sale
of the Shares or for any additional information relating to the
offering and sale of the Shares, or of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement relating to the offering and sale of the Shares or the use of
the Prospectus relating to the offering and sale of the Shares or of
the institution or threatening of any proceedings for that purpose
relating to the offering and sale of the Shares, and the Company and
the
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<PAGE> 13
Operating Partnership will use their best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus in connection with the offering and sale of the Shares and
to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as you may have designated and will make such
applications, file such documents, and furnish such information as may
be necessary for that purpose, provided the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now
so qualified or required to file such a consent or to subject itself to
taxation as doing business in any jurisdiction where it is not now so
taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as you may
reasonably request, subject to the foregoing provision.
(d) The Company will deliver to you, without charge, as many
copies of the Prospectus (including all documents incorporated by
reference therein), or as it thereafter may be amended or supplemented
in connection with the offering and sale of the Shares, as you may from
time to time reasonably request. The Company consents to the use of
such Prospectus by you, both in connection with the offering or sale of
the Shares and for such period of time thereafter as the Prospectus is
required by law to be delivered, and for such other purposes as may be
legally required in connection with the offering or sale of the Shares.
The Company will deliver to you at or before the Closing Date two
conformed copies of the Registration Statement and all amendments
thereto, including all exhibits filed therewith or incorporated by
reference therein and all documents incorporated by reference in the
Prospectus and will deliver to you such number of copies of the
Registration Statement, without exhibits, and of all amendments
thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by
law to be delivered by an underwriter or dealer in connection with the
offering and sale of the Shares, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the
opinion of your counsel, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend
or supplement the Prospectus in connection with the offering and sale
of the Shares to comply with any law, the Company promptly will prepare
and file with the Commission an appropriate amendment to the
Registration Statement or
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<PAGE> 14
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with
law.
(f) The Company will make generally available to its
shareholders and will file as an exhibit in a report pursuant to the
Exchange Act, as soon as it is practicable to do so, but in any event
not later than 15 months after the effective date of the Registration
Statement, an earnings statement in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective
date of the Registration Statement, which earnings statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 of
the Rules and Regulations and will advise you in writing when such
statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to you at your principal executive offices a
reasonable number of copies of annual reports, quarterly reports,
current reports and copies of all other documents, reports and
information furnished by the Company to its shareholders or filed with
any securities exchange pursuant to the requirements of such exchange
or with the Commission pursuant to the Act or the Exchange Act. The
Company will deliver to you similar reports with respect to any
significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company financial
statements. Any report, document or other information required to be
furnished under this paragraph (g) shall be furnished as soon as
practicable after such report, document or information becomes
available.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth in the description under "Use of Proceeds" in the
Prospectus, which description complies in all respects with the
requirements of Item 504 of Regulation S-K of the Commission.
(i) The Company will supply you with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the
Act.
(j) Prior to the Closing Date, the Company will furnish to
you, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and its
subsidiaries for any periods subsequent to the periods covered by the
financial statements included in the Registration Statement and the
Prospectus.
(k) Prior to the Closing Date, the Company will not issue any
press releases or other communications directly or indirectly and will
hold no press conference, with respect to
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<PAGE> 15
the Company or any of its subsidiaries, the financial condition,
results of operations, business, properties, assets or liabilities of
the Company or any of its subsidiaries, or the offering of the Shares,
without your prior written consent.
(l) The Company will use its best efforts to obtain approval
for, and maintain the listing of the Shares on, the New York Stock
Exchange.
(m) The Company and the Operating Partnership will maintain
and keep accurate books and records reflecting their assets and
maintain internal accounting controls which provide reasonable
assurance that (1) transactions are executed in accordance with
management's authorization, (2) transactions are recorded as necessary
to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the
Company, the Operating Partnership and the Subsidiaries, (3) access to
the assets of the Company, the Operating Partnership and the
Subsidiaries is permitted only in accordance with management's
authorization, and (4) the recorded accounts of the assets of the
Company, the Operating Partnership and the Subsidiaries are compared
with existing assets at reasonable intervals.
(n) During any period in which a prospectus is required by law
to be delivered by an Underwriter or dealer in connection with the
offering and sale of the Shares, the Company and the Operating
Partnership will promptly file all documents required to be filed with
the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
(o) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under
the Code.
5. Conditions of Underwriter's Obligation. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the dare hereof and as
of the Closing Date, of the representations and warranties of the Company and
the Operating Partnership contained herein, to the performance in all material
respects by the Company of its covenants and obligations hereunder, and to the
following additional conditions:
(a) All filings in connection with the offering and sale of
the Shares required by Rule 424 of the Rules and Regulations shall have
been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or,
to your knowledge or the knowledge of the Company or the Operating
Partnership, threatened or contemplated by the Commission, and any
request of the Commission for additional information (to
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<PAGE> 16
be included in the Registration Statement or the Prospectus or
otherwise in connection with the offering and sale of the Shares) shall
have been complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company, on
or prior to the Closing Date, that the Registration Statement or
Prospectus or any amendment or supplement thereto contains an untrue
statement of fact which, in the opinion of your counsel, is material,
or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date, you shall have received the opinions
of Wolf, Block, Schorr and Solis-Cohen LLP and Weinberg & Green, LLC,
counsel for the Company, addressed to you and dated the Closing Date,
as to the matters set forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Chapman
and Cutler, your counsel, such opinion or opinions, dated the Closing
Date with respect to the organization of the Company, the validity of
the issuance of the Shares, the Registration Statement, the Prospectus
and other related matters as you may reasonably require; the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass on such matters.
(e) You shall have received at or prior to the Closing Date
from Chapman and Cutler a memorandum or memoranda, in form and
substance satisfactory to you, with respect to the qualification for
offering and sale by you of the Shares under state securities or Blue
Sky laws of such jurisdictions as you may have designated to the
Company.
(f) On the date of this Agreement and on the Closing Date, you
shall have received from Ernst & Young, LLP, a letter or letters, dated
the date of this Agreement and the Closing Date, respectively, in form
and substance satisfactory to you, confirming that they are independent
public accountants with respect to the Company within the meaning of
the Act and the published Rules and Regulations, and stating to the
effect set forth in Schedule II hereto.
(g) Except as contemplated in the Prospectus, (i) neither the
Company, the Operating Partnership nor any of the Subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference 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
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<PAGE> 17
or court or governmental action, order or decree; and (ii) subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company, the
Operating Partnership nor any of the Subsidiaries shall have incurred
any liability or obligation, direct or contingent, or entered into
transactions, and there shall not have been any change in the Common
Shares, the Units or long-term debt of the Company, the Operating
Partnership and the Subsidiaries or any change in the condition
(financial or other), net worth, business, affairs, management,
prospects or results of operations of the Company, the Operating
Partnership or the Subsidiaries, the effect of which, in any such case
described in clause (i) or (ii), is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the Shares being delivered
on the Closing Date on the terms and in the manner contemplated in the
Prospectus.
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or the
establishing on such exchanges by the Commission or by such exchanges
of minimum or maximum prices which are not in force and effect on the
date hereof; (ii) a general moratorium on commercial banking activities
declared by either federal or state authorities; (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the
offering or the delivery of the Shares in the manner contemplated in
the Prospectus; (iv) any calamity or crisis, change in national,
international or world affairs, act of God, change in the international
or domestic markets, or change in the existing financial, political or
economic conditions in the United States or elsewhere, if the effect of
any such event specified in this clause (iv) makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Shares
in the manner contemplated in the Prospectus; or (v) the enactment,
publication, decree, or other promulgation of any federal or state
statute, regulation, rule, or order of any court or other governmental
authority, or the taking of any action by any federal, state or local
government or agency in respect of fiscal or monetary affairs, if the
effect of any such event specified in this clause (v) in your judgment
makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares in the manner contemplated in the
Prospectus.
(i) You shall have received certificates, dated the Closing
Date and signed by the Chief Executive Officer or the President and the
Chief Financial Officer of the Company
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<PAGE> 18
stating that (i) they have examined the Registration Statement and the
Prospectus as amended or supplemented and all documents incorporated by
reference therein and nothing has come to their attention that would
lead them to believe that (i) either the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any documents
incorporated by reference therein, as of their respective effective,
issue or filing dates, as the case may be, or (ii) the Prospectus, as
amended or supplemented, and when read together with the documents
incorporated by reference therein, as of the Closing Date, contained or
contains, as of such date, 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, and, that
(ii) all representations and warranties made herein by the Company and
the Operating Partnership are true and correct in all material respects
at the Closing Date, with the same effect as if made on and as of the
Closing Date, and all agreements herein to be performed by the Company
on or prior to the Closing Date have been duly performed in all
material respects.
(j) The Company and the Operating Partnership shall not have
failed, refused, or been unable, at or prior to the Closing Date to
have performed in all material respects any agreement on their part to
be performed or any of the conditions herein contained and required to
be performed or satisfied by them at or prior to the Closing Date.
(k) The Company and the Operating Partnership shall have
furnished to you at the Closing Date such other certificates as you may
have reasonably requested as to the accuracy, on and as of the Closing
Date, of the representations and warranties of the Company and the
Operating Partnership herein and as to the performance by the Company
and the Operating Partnership of their obligations hereunder. (l) The
Shares shall have been approved for trading on the New York Stock
Exchange upon official notice of issuance thereof.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Chapman and Cutler, your counsel. The Company and the Operating
Partnership will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 5 shall not
have been satisfied at or prior to the Closing Date or waived by you in writing,
this Agreement may be terminated by you on notice to the Company.
6. Indemnification. (a) The Company and the Operating
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<PAGE> 19
Partnership will indemnify and hold harmless you and each person, if any, who
controls you within the meaning of the Act, against any losses, claims, damages
or liabilities, joint or several, to which you or such controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any blue sky
application or other document executed by the Company or the Operating
Partnership or based on any information furnished in writing by the Company or
the Operating Partnership, filed in any jurisdiction in order to qualify any or
all of the Shares under the securities laws thereof ("Blue Sky Application"), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and will reimburse you and each such controlling person for any
legal or other expenses reasonably incurred by you or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Operating
Partnership shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, such Preliminary Prospectus or the Prospectus, or
such amendment or supplement, or any Blue Sky Application in reliance upon and
in conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof; and provided, further, that if
any Preliminary Prospectus or the Prospectus contained any alleged untrue
statement or allegedly omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstance under which they were made, not misleading and such statement or
omission shall have been corrected in a revised Preliminary Prospectus or in the
Prospectus or in an amended or supplemented Prospectus, the Company and the
Operating Partnership shall not be liable to you or controlling persons under
this subsection (a) with respect to such alleged untrue statement or alleged
omission to the extent that any such loss, claim, damage or liability of such
person results from the fact that you sold Shares to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, such
revised Preliminary Prospectus or Prospectus or amended or supplemented
Prospectus. In addition to its other obligations under this Section 6(a), the
Company and the Operating Partnership agree that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 6(a), it will reimburse you on a monthly
basis for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding,
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<PAGE> 20
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation of the Company and the Operating Partnership to
reimburse you for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. This
indemnity agreement shall be in addition to any liabilities which the Company
and the Operating Partnership may otherwise have.
(b) You will indemnify and hold harmless the Company and the Operating
Partnership, each of the Company's trustees, each of the Company's officers who
have signed the Registration Statement and each person, if any, who controls the
Company or the Operating Partnership within the meaning of the Act, against any
losses, claims, damages or liabilities, joint or several, to which the Company,
the Operating Partnership or any such trustee, officer or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any amendment or supplement thereto, or any Blue Sky Application or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, such Preliminary Prospectus or the
Prospectus, such amendment or supplement, or any Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by you specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company, the
Operating Partnership or any such trustee, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. In addition to your other obligations under this Section
6(b), you agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(b), you will reimburse the Company and the Operating Partnership
on a monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of your obligation
to reimburse the Company and the Operating Partnership for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. This indemnity agreement shall be in addition
to any liabilities which you may otherwise have.
(c) Any party which proposes to assert the right to be indemnified
under this Section 6 shall, within ten days after
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<PAGE> 21
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim is to be made against an indemnifying party
under this Section 6, notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve such indemnifying party from any liability which it
may have to any indemnified party under this Section 6 unless such indemnifying
party has been materially prejudiced by such omission and such omission shall
not relieve such indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case any such action,
suit or proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of
the indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel in a written opinion
that there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense, or certain aspects of the
defense, of such action (in which case the indemnifying party shall not have the
right to direct the defense of such action with respect to those matters or
aspects of the defense on which a conflict exists or may exist on behalf of the
indemnified party) (provided, however, that the indemnifying party shall not be
required to pay the fees and expenses of more than one counsel for all of the
indemnified parties entitled to separate counsel pursuant to this clause (ii))or
(iii) the indemnifying party shall not in fact have employed counsel to assume
the defense of such action, in any of which events such fees and expenses to the
extent reasonable and applicable shall be borne by the indemnifying party. An
indemnifying party shall not be liable for any settlement of any action or claim
effected without its consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying party in the
defense of any such action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to
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<PAGE> 22
appeal or the denial of the last right to appeal) to be unavailable to an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions 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 losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership, on the one hand,
and you, on the other hand, from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault, as
applicable, of the Company and the Operating Partnership, on the one hand, and
you, on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as other relevant equitable considerations. The relative
benefits received by, as applicable, the Company and the Operating Partnership
taken together and you shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
you, 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, among other things,
whether the untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Operating Partnership, on the one hand, or you, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Operating
Partnership and you agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include 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
subsection (d), you shall not be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by you and
sold in the offering were offered exceeds the amount of any damages which you
have 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
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<PAGE> 23
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company, the Operating
Partnership and you contained herein or in certificates delivered pursuant
hereto, including your agreements contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of you
or any controlling person, the Company and the Operating Partnership or any of
their officers, trustees or any controlling persons, and shall survive delivery
of the Shares to you hereunder.
8. Effective Date and Termination. (a) This Agreement shall become
effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in Section
5 hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto (c) the furnishing of copies of such documents to you, (d)
the registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in connection with
their review of the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all initial transfer taxes, if
any, (h) all fees and expenses relating to the authorization of the Shares for
trading on the New York Stock Exchange, (i) all travel expenses, including air
fare and accommodation expenses, of representatives of the Company in connection
with the offering of the Shares and (j) all of the other costs and expenses
incident to the performance by the Company of the registration and offering of
the Shares; provided, however, that you will bear and pay the fees and expenses
of your counsel (other than fees and disbursements relating to the registration
or qualification of the Shares for offering and sale under the securities laws
of the various states), your out-of-pocket expenses, and any advertising costs
and expenses incurred by you incident to the public offering of the Shares.
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<PAGE> 24
If this Agreement is terminated by you in accordance with the
provisions of Section 8(b), the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and disbursements of your
counsel.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o A.G. Edwards & Sons, Inc. at One North Jefferson Avenue, St. Louis, Missouri
63103, Attention: Syndicate, facsimile number (314) 289-7387, or if sent to the
Company shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed to the Company at 65 Valley Stream Parkway, Suite 100,
Malvern, Pennsylvania 19355, Attention: General Counsel, facsimile number (610)
644-4129.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and the Operating Partnership and each of your
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, corporation
or other entity, other than the parties hereto and their respective successors
and assigns and the controlling persons, officers and trustees referred to in
Section 6, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained; this Agreement and
all conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective successors and
assigns and said controlling persons and said officers and trustees, and for the
benefit of no other person, corporation or other entity. No purchaser of any of
the Shares from you shall be construed a successor or assign by reason merely of
such purchase.
12. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
13. Pronouns. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
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<PAGE> 25
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company, the Operating
Partnership and you.
LIBERTY PROPERTY TRUST
By: /s/ George J. Alburger, Jr.
--------------------------
Name: George J. Alburger, Jr.
-----------------------
Title: Chief Financial Officer
-----------------------
LIBERTY PROPERTY LIMITED
PARTNERSHIP
By: Liberty Property Trust, as its sole
general partner
By: /s/ George J. Alburger, Jr.
--------------------------
Name: George J. Alburger, Jr.
-----------------------
Title: Chief Financial Officer
-----------------------
Accepted in St. Louis,
Missouri as of the date
first above written.
A.G. Edwards & Sons, Inc.
By: /s/ Richard H. Giles
-------------------------
Name: Richard H. Giles
-----------------------
Title: Managing Director
----------------------
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