Liberty Property Limited Partnership (a Pennsylvania Limited Partnership) $350,000,000 4.75% Senior Notes due 2020 Underwriting Agreement
Exhibit 1.1
Execution Copy
Liberty Property Limited Partnership
(a Pennsylvania Limited Partnership)
(a Pennsylvania Limited Partnership)
$350,000,000 4.75% Senior Notes due 2020
September 22, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Citigroup Global Markets Inc.
▇▇▇▇▇ Fargo Securities, LLC
As Representatives of the several Underwriters
Named in Schedule I hereto
Citigroup Global Markets Inc.
▇▇▇▇▇ Fargo Securities, LLC
As Representatives of the several Underwriters
Named in Schedule I hereto
Ladies and Gentlemen:
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 wishes to
confirm as follows its agreement (this “Agreement”) with Banc of America Securities LLC,
Citigroup Global Markets Inc. and ▇▇▇▇▇ Fargo Securities, LLC (the “Representatives”), as
representatives of the Underwriters named in Schedule I hereto (the “Underwriters”), with
respect to the sale by the Operating Partnership and the purchase by the Underwriters of an
aggregate of $350,000,000 principal amount of the 4.75% Senior Notes due 2020 of the Operating
Partnership (the “Securities”).
Capitalized terms used but not otherwise defined herein shall have the meanings given to those
terms in the Prospectus (as herein defined).
| 1. | Each of the Transaction Entities, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that: |
| (a) | A registration statement on Form S-3 (No. 333-150737) (the “Registration
Statement”) with respect to, among other securities, the Securities, has (i) been
prepared by the Company and the Operating Partnership in conformity with the requirements
of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and
regulations (the “Rules and Regulations”) of the Securities and Exchange Commission
(the “Commission”) thereunder, (ii) been filed with the Commission under the
Securities Act not earlier than three years prior to the date hereof, (iii) become
effective under the Securities Act, and the indenture, dated as of September 22, 2010 (the
“Indenture”), between the Operating Partnership and U.S. Bank National Association,
as trustee (the “Trustee”), has been qualified under the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”), and the Supplemental Indenture, to be
dated as of the Time of Delivery (as herein defined), between the Operating Partnership and
the Trustee (the “Supplemental Indenture”), pursuant to which the |
Securities shall be issued, will be qualified under the Trust Indenture Act, and no stop
order suspending the effectiveness of such registration statement or any part thereof has
been issued and no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Transaction Entities. The base prospectus filed
as part of such registration statement, in the form in which it has most recently been
filed with the Commission on or prior to the date of this Agreement, is hereinafter called
the “Basic Prospectus”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Securities Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part
of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as herein defined), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section
5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the
Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement relating
to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities
Act and any documents filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated by reference therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case
may be; any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report filed by a Transaction Entity pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any “issuer free
writing prospectus” as defined in Rule 433 under the Securities Act relating to the
Securities is hereinafter called an “Issuer Free Writing Prospectus”.
| (b) | No order preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, complied as to form in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder (the “Trust Indenture Rules”), and did not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Transaction Entities by
an Underwriter through the Representatives expressly for use therein. |
2
| (c) | For the purposes of this Agreement, the “Applicable Time” is 3:15 p.m. (Eastern time)
on the date of this Agreement; the Pricing Prospectus together with the final term sheet
prepared and filed by the Transaction Entities pursuant to Section 5(a) hereof (and
constituting an Issuer Free Writing Prospectus) and any other free writing prospectus that
the parties hereto shall hereafter expressly agree in writing to treat as part of the
Pricing Disclosure Package (as hereinafter defined), taken together (collectively, the
“Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule II(b)(ii) hereto
does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus; and each Issuer Free Writing Prospectus listed on Schedule
ll(b)(ii), as supplemented by and taken together with the Pricing Disclosure Package as of
the Applicable Time, did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in the Pricing
Disclosure Package or any listed Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Transaction Entities by an
Underwriter through the Representatives expressly for use therein. |
| (d) | The documents incorporated by reference in the Pricing Prospectus and the Prospectus,
when they became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects to the requirements of the Securities Act and the Rules
and Regulations or the Exchange Act and the rules and regulations of the Commission
thereunder (the “Exchange Act Rules”), as applicable, and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
any further documents so filed and incorporated by reference in the Pricing Prospectus and
the Prospectus or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Exchange Act Rules and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and no such documents were filed with the
Commission since the Commission’s close of business on the business day immediately prior
to the date of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b)(i) hereto. |
| (e) | The Registration Statement complies as to form, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will comply as
to form, in all material respects to the requirements of the Securities Act, the Rules and
Regulations, the Trust Indenture Act and the Trust Indenture Rules and do not and will not,
as of the applicable effective date as to each part of the Registration Statement and as of
the applicable filing date 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; provided,
however, that this representation and warranty shall not apply to any statements or |
3
omissions made in reliance upon and in conformity with information furnished in writing to
the Transaction Entities by an Underwriter through the Representatives expressly for use
therein.
| (f) | The Company and the Operating Partnership each meet the requirements for use of Form
S-3 under the Securities Act as of the applicable effective date of the Registration
Statement and any amendment thereto, as of the applicable filing date of the Prospectus and
any amendments thereto and as of the Time of Delivery (as defined in Section 4(a)). As of
(i) the time of filing the Registration Statement and any amendment thereto and the
Prospectus and any amendment thereto and (ii) the Applicable Time, neither the Company nor
the Operating Partnership was or is an “ineligible issuer” (as defined in Rule 405 of the
Securities Act Regulations), without taking account of any determination by the Commission
pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Company
or the Operating Partnership, as the case may be, be considered an “ineligible issuer.” |
| (g) | 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 (each such jurisdiction
as provided in Schedule II(a) hereto), 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) is a “significant subsidiary,” as such term is
defined in Rule 405 under the Securities Act. Except as described in the Pricing
Prospectus and the Prospectus and other than (i) the Property Affiliates (as defined
herein), (ii) entities owned through joint ventures, which joint ventures are listed in
Schedule V hereto, or (iii) entities that (A) conduct no business or operations and (B) own
no assets, the entities listed in Schedule IV hereto and the Operating Partnership,
Development Corp. (as defined herein), Development-II (as defined herein) and SP Trust (as
defined herein), the Company owns no direct or indirect equity interest in any entity. |
| (h) | The Company has an authorized capitalization as set forth in the Pricing Prospectus and
the Prospectus, 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 Pricing Prospectus and the Prospectus. Except
as disclosed in the Pricing Prospectus and the Prospectus and with respect to the Company’s
Amended and Restated Share Incentive Plan (the “Share Incentive Plan”), the
Company’s 2008 Long-Term Incentive Plan (the “2008 Plan”), the Company’s 2010
Long-Term Incentive Plan (the “2010 Plan”), the Company’s Employee Stock Purchase
Plan and the Company’s Dividend Reinvestment and Share Purchase Plan, no shares of
beneficial interest of the Company are reserved for any purpose and except as disclosed in
the Pricing Prospectus and the Prospectus and the equity interests in the Operating
Partnership (“Units”) and options to purchase shares of beneficial interest issued
pursuant to the Share Incentive Plan, the 2008 Plan or the 2010 Plan, there are no
outstanding securities convertible into or exchangeable for any shares of beneficial
interest of the Company, and there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of beneficial interest or any
other securities of the Company. |
4
| (i) | 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 (each such jurisdiction as provided in Schedule II(a) hereto),
and has all partnership power and authority necessary to own or hold any real property or
improvements thereon owned or held by the Operating Partnership or its subsidiaries (each
individually, a “Property,” and collectively, the “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
limited partnership agreement of the Operating Partnership, as amended (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 Pricing Prospectus and the Prospectus. The owner’s equity of the Operating
Partnership is as described in the Pricing Prospectus and the Prospectus. All of the Units
have been duly and validly authorized and issued, were issued in accordance with the
applicable terms of the Operating Partnership Agreement and the certificate of limited
partnership of the Operating Partnership and, to the extent that such interests are owned
by the Company, are owned by the Company free and clear of all liens, encumbrances,
equities or claims. |
| (j) | Liberty Property Development Corp. (“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 and validly
authorized and issued and is fully paid and non-assessable, and has been offered and sold
in compliance with all applicable laws (including, without limitation, federal or state
securities laws). All of the capital stock of Development Corp. owned by the Operating
Partnership, as described in the Pricing Prospectus and 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 there are 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. |
| (k) | Liberty Property Development Corp-II (“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 and validly
authorized and issued and is fully paid and non-assessable, and has been offered and sold
in compliance with all applicable laws (including, without limitation, federal or state
securities laws). All of the capital stock of Development-II owned by the Operating
Partnership, as described in the Pricing Prospectus and the Prospectus, is owned free and
clear of any security interest, |
5
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
there are 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.
| (l) | Liberty Property Special Trust (“SP Trust”) has been duly organized and is
validly existing as a business trust 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 trust 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 equity interests of SP Trust have been duly and validly authorized and issued
and are fully paid and non-assessable, and have been offered and sold in compliance with
all applicable laws (including, without limitation, federal or state securities laws). All
of the equity interests of SP Trust are owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim, restriction or equities. No equity
interests of SP Trust are reserved for any purpose, and there are no outstanding securities
convertible into or exchangeable for any equity interests of SP Trust, and there are no
outstanding options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such equity interests or any other securities of SP Trust. |
| (m) | 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, SP Trust and the entities listed in
Schedule IV hereto, 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, is duly
qualified to do business and is in good standing under the laws of the jurisdiction in
which it was 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 Pricing Prospectus and the Prospectus, all of the ownership
interests of each Property Affiliate have been duly and validly authorized and issued and
are fully paid and non-assessable. All of such ownership interests owned directly or
indirectly by the Company and the Operating Partnership, as described in the Pricing
Prospectus and the Prospectus, are owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim, restriction or equities. |
| (n) | The Securities have been duly and validly authorized for issuance and sale pursuant to
this Agreement and, when duly executed, authenticated, issued and delivered against payment
therefor as provided herein and in the Indenture, will be duly and validly issued and
outstanding, and shall constitute a valid and binding obligation of the Operating
Partnership, entitled to the benefits provided in the Indenture, and enforceable against
the Operating Partnership in accordance with its terms. Upon payment of the purchase price
and delivery of the Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims, restrictions and equities. |
6
| (o) | The Indenture has been duly and validly authorized, executed and delivered by the
Operating Partnership and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms; the
Supplemental Indenture has been duly and validly authorized and, when executed and
delivered by the Operating Partnership (assuming due execution and delivery by the
Trustee), will constitute a valid and binding agreement of Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms; the Securities
and the Indenture conform, and the Supplemental Indenture will conform, in all material
respects to the descriptions thereof contained in the Pricing Disclosure Package and
Prospectus. |
| (p) | (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, limited liability company
operating agreement, and each other similar organizational document of each Property
Affiliate have been duly and validly authorized, executed and delivered by the parties
thereto and are valid and binding agreements of the parties thereto, enforceable against
such parties in accordance with their terms. |
| (q) | The issue and sale of the Securities, the execution, delivery and performance of this
Agreement by each of the Transaction Entities, the execution, delivery and performance of
the Indenture and the Supplemental Indenture by the Operating Partnership, and the
consummation of the transactions contemplated hereby and thereby, 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 or any of their subsidiaries is a
party or by which either of the Transaction Entities or any of their subsidiaries is bound
or to which any of the Properties or other assets of the Transaction Entities or any of its
subsidiaries is subject, nor will such actions result in any violation of the provisions of
the charter, by-laws, certificate of limited partnership, agreement of limited partnership,
certificate of formation, limited liability company operating agreement or other similar
organizational document of either of the Transaction Entities or any of their subsidiaries,
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 subsidiaries or
any of their properties or assets; and no consent, approval, authorization or order of, or
filing, registration or qualification with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement by each of the
Transaction Entities or the Indenture and the Supplemental Indenture by the Operating
Partnership, the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Securities, except such as have been obtained under the
Securities Act and the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the Underwriters. |
| (r) | No event has occurred and is continuing that, had the Securities been issued, would
(whether or not with the giving of notice and/or the passage of time and/or the fulfillment
of |
7
any other requirement) constitute an Event of Default (as defined in the Indenture) under
the Indenture.
| (s) | Other than as described in the Pricing Prospectus and the Prospectus and other than
rights of certain persons who have contributed Properties to the Operating Partnership in
exchange for Units and persons whose securities are already registered under the Securities
Act, and except with respect to certain persons who may acquire preferred shares of the
Company in exchange for preferred units of partnership interest in the Operating
Partnership, there are no contracts, agreements or understandings between the Transaction
Entities or any of their subsidiaries and any person granting such person the right to
require a Transaction Entity to file a registration statement under the Securities Act with
respect to any securities of either of the Transaction Entities or any of their
subsidiaries owned or to be owned by such person or to require either of the Transaction
Entities or any of their subsidiaries to include such securities in any securities being
registered pursuant to any registration statement filed by the Transaction Entities or any
of their subsidiaries under the Securities Act. |
| (t) | Except (i) as described or contemplated in the Pricing Prospectus and the Prospectus or
pursuant to the Share Incentive Plan, the 2008 Plan or the 2010 Plan and (ii) for the
issuance of common shares of beneficial interest upon redemption of Units, neither
Transaction Entity has sold or issued any securities during the six-month period preceding
the date of the Pricing Prospectus, including any sales pursuant to Rule 144A or
Regulations D or S under the Securities Act. |
| (u) | Neither of the Transaction Entities nor any of the Properties has sustained, since the
date of the latest audited financial statements included, or incorporated by reference, in
the Pricing Prospectus and 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,
which losses or interference would, individually or in the aggregate, have a material
adverse effect on 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 Pricing Prospectus and the Prospectus; and, since
such date, there has not been any material change in the capital shares 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 the Properties or the
general affairs, management, financial position, shareholders’ equity or results of
operations of either of the Transaction Entities. |
| (v) | The financial statements (including the related notes and supporting schedules thereto)
included, or incorporated by reference, in the Pricing Prospectus 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 Pricing Prospectus under the caption “Ratios of
Earnings to Fixed Charges” have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. Pro forma financial information included, or
incorporated by reference, in the Pricing Prospectus and the Prospectus has been prepared
in accordance with the applicable |
8
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 respective entity or entities
presented therein at the respective dates indicated and the results of operations for the
respective periods specified.
| (w) | Ernst & Young LLP, which has audited certain financial statements of the Transaction
Entities and their subsidiaries, is an independent registered public accounting firm, as
required by the Securities Act and the Rules and Regulations. |
| (x) | (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 Pricing Prospectus and
the Prospectus, those relating to certain intra-company debt with respect to Development
and Development-II and certain Property Affiliates, 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 Pricing Prospectus and the Prospectus are
disclosed therein; (C) except as otherwise described in the Pricing Prospectus and the
Prospectus, none of the Company, the Operating Partnership or any Property Affiliate 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, in each case which
default would have a material adverse effect on either of the Transaction Entities or
affect either Transaction Entity’s ability to perform its obligations hereunder, and
neither of the Transaction Entities 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 of the Transaction Entities 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. |
| (y) | 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. |
| (z) | The Company, the Operating Partnership and the Property Affiliates have obtained title
insurance on their 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 (exclusive of improvements) of each such Property. |
| (aa) | Except as disclosed in the Pricing Prospectus and the Prospectus and except such as in
each case would not have a material adverse effect on any Property, any Property Affiliate, |
9
the Company, the Operating Partnership 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 Trust 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 would reasonably be expected to result in the incurrence of liabilities by
the Transaction Entities or any of their subsidiaries under, or any violations of, any
Environmental Law or give rise to the imposition of any Lien (as defined below) against
the Transaction Entities or any of their subsidiaries, under any Environmental Law; (C)
none of the Transaction Entities or the 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. Section 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. Section 9601 et seq.)
(“CERCLA”), the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et seq.), the Occupational
Safety and Health Act of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
10
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.
| (bb) | Each Transaction Entity and each of their subsidiaries carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the conduct of its
business and as is customary for companies engaged in similar businesses in similar
industries; and each Property carries, or is covered by, insurance covering the value of
such Property. |
| (cc) | Each Transaction Entity owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ 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. |
| (dd) | Except as described in the Pricing Prospectus and 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 individually or in the aggregate 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 the
Transaction Entities, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others. |
| (ee) | There are no contracts or other documents which are required to be described in the
Pricing Prospectus and 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
Pricing Prospectus and the Prospectus or filed as exhibits to the Registration Statement. |
| (ff) | No relationship, direct or indirect, exists between or among either of the Transaction
Entities or any of their subsidiaries on the one hand, and the trustees, officers,
shareholders, customers or suppliers of the Transaction Entities or any of their
subsidiaries on the other hand, that is required to be described in the Pricing Prospectus
and the Prospectus. |
| (gg) | No labor disturbance by the employees of either Transaction Entity or any of their
subsidiaries 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. |
11
| (hh) | 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 (as defined below) is (i) 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 and (ii) 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”); to the knowledge of the Transaction Entities,
after due inquiry, 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”). |
| (ii) | Each Transaction Entity and each of their subsidiaries has filed all federal, state,
local and foreign income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon (taking into account any extension that is
properly granted under the law), and no material tax deficiency has been asserted against
either Transaction Entity or any of 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. |
| (jj) | At all times since June 16, 1994, the Company, the Operating Partnership, Development
Corp., Development II and SP Trust have been, and upon the sale of the Securities will
continue to be, organized and operated in conformity with the requirements for
qualification and taxation 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 Trust will enable the Company to continue to meet the
requirements for qualification and taxation as a real estate investment trust under the
Code. |
| (kk) | Since the date as of which information is given in the Pricing Prospectus and the
Prospectus through the date hereof, and except as may otherwise be disclosed or
contemplated in the Pricing Prospectus and the Prospectus, neither Transaction Entity has
(i) except as set forth in Section 1(s) hereof, 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 or (iv) declared or paid any dividend on
its capital shares (other than regular quarterly dividends). |
| (ll) | Neither Transaction Entity nor any of their subsidiaries (i) is in violation of its
charter, by-laws, certificate of limited partnership, agreement of limited partnership,
certificate of formation, limited liability company operating agreement 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 |
12
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.
| (mm) | Each Transaction Entity and each of 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. |
| (nn) | Each Transaction Entity has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls and procedures (i) are
designed to ensure that material information relating to such Transaction Entity, including
its consolidated subsidiaries, is made known to each of the Transaction Entities’ principal
executive officer and principal financial officer by others within those entities; (ii)
have been evaluated for effectiveness as of the end of the period covered by the
Transaction Entities’ most recent quarterly report jointly filed with the Commission; and
(iii) were functioning effectively in all material respects as of the end of such period to
provide reasonable assurance that information required to be disclosed by the Transaction
Entities in their reports filed or submitted under the Exchange Act is recorded, processed,
summarized and reported accurately and within the time periods specified in the
Commission’s rules and forms. |
| (oo) | Each of the Transaction Entity’s internal control over financial reporting is effective
and none of the Transaction Entities is aware of (i) any significant deficiency or material
weakness in the design or operation of internal control over financial reporting; or (ii)
any fraud, whether or not material, that involves management or other employees who have a
significant role in either of the Transaction Entity’s internal control over financial
reporting. |
| (pp) | The Transaction Entities and each of their trustees and executive officers, in their
capacities as such, is in compliance with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 and the rules and regulations promulgated in connection therewith (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and
906 related to certifications. |
| (qq) | Except as described in the Pricing Prospectus, with respect to stock options or other
equity incentive grants (collectively, “Awards”) granted subsequent to the adoption
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act on July 31, 2002 pursuant to the equity-based compensation plans
of either of the Transaction Entities and their subsidiaries (the “Equity Plans”),
(i) no stock options have been granted with an exercise price based upon a price of the
common shares of beneficial interest of the Company on a date occurring prior to the date
of approval of such grant, (ii) each such grant was made in accordance with the material
terms of the Equity Plans, the |
13
Exchange Act and all other applicable laws and regulatory rules or requirements, and
(iii) each such grant has been properly accounted for in accordance with generally
accepted accounting principles in the financial statements (including the related notes)
of each of the Transaction Entities and disclosed in each of the Transaction Entities’
filings with the Commission.
| (rr) | Neither Transaction Entity, nor any trustee, officer, agent, employee or other person
associated with or acting on behalf of 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, as amended; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment. |
| (ss) | Neither Transaction Entity nor any of their subsidiaries is, and after giving effect to
the offering and sale of the Securities neither Transaction Entity nor any of their
subsidiaries will be, an “investment company” within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder. |
| (tt) | Other than this Agreement and as set forth in the Pricing Prospectus and 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 issue and sale of the Securities and the
consummation of the transactions contemplated by this Agreement. |
| (uu) | Each of the Transaction Entities and their subsidiaries have complied with all
applicable provisions of Florida Statutes Section 517.075, relating to issuers doing
business with Cuba. |
| (vv) | None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Securities) will violate or result in a
violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System. |
| (ww) | Prior to the date hereof, neither of the Transaction Entities nor any of their
affiliates has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of the price
of any security of either of the Transaction Entities in connection with the offering of
the Securities. |
| (xx) | The statements set forth in the Pricing Prospectus and the Prospectus under the caption
“Description of Notes”, insofar as they purport to constitute a summary of the terms of the
Securities, under the captions “Certain Federal Income Tax Considerations” and “Federal
Income Tax Considerations with Respect to the Trust and the Operating Partnership”, insofar
as they pertain to summaries of U.S. federal income tax law, and under the caption
“Underwriting”, insofar as they pertain to this Agreement, are accurate, complete and fair. |
14
| 2. | Subject to the terms and conditions herein set forth, the Operating Partnership agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees severally and
not jointly to purchase from the Operating Partnership, at a purchase price of 99.113% of the
principal amount thereof, plus accrued interest, if any, from September 27, 2010 to the Time
of Delivery hereunder, the principal amount of Securities set forth opposite the name of such
Underwriters in Schedule I hereto. |
| 3. | Upon authorization by the Representatives of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the terms and conditions set forth
in this Agreement. |
| 4. | (a) | The Securities to be purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form which will be deposited by or on
behalf of the Transaction Entities with The Depository Trust Company (“DTC”) or its
designated custodian. The Transaction Entities will deliver the Securities to the
Representatives, for the account of each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same day) funds to the
account specified by the Transaction Entities to the Representatives at least forty-eight
hours in advance, by causing DTC to credit the Securities to the account of the
Representatives at DTC. The Transaction Entities will cause the certificates representing the
Securities to be made available to the Representatives for checking at least twenty-four hours
prior to the Time of Delivery at the offices of ▇▇▇▇▇ Lovells US LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (the “Closing Location”). The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on September 27, 2010 or at such other
time and date as the Representatives and the Transaction Entities may agree upon in writing.
Such time and date for delivery of the Securities is herein called the “Time of
Delivery.” |
| (b) | The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(o) hereof, will be
delivered at such time and date at the Closing Location, and the Securities will be
delivered at DTC or its designated custodian, all at the Time of Delivery. A meeting will
be held at the Closing Location at 10:00 a.m., New York City time, no later than the New
York Business Day (as defined below) next preceding the Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section 4,
“New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close. |
5. Each of the Transaction Entities jointly and severally agrees with each of the Underwriters:
| (a) | To prepare the Prospectus in a form approved by the Representatives, in their
reasonable discretion, 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 date of this Agreement; to make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of
Delivery which shall be disapproved by the Representatives, in their reasonable discretion,
promptly after |
15
reasonable notice thereof; 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 amendment or supplement to the Prospectus has been filed
and to furnish the Representatives with copies thereof; to prepare a final term sheet,
containing solely a description of the Securities, in a form approved by the
Representatives and contained in Schedule III hereto and to file such term sheet pursuant
to Rule 433(d) under the Securities Act within the time required by such Rule; to file
promptly all other material required to be filed by the Transaction Entities with the
Commission pursuant to Rule 433(d) under the Securities Act; to file promptly all reports
and any definitive proxy or information statements required to be filed by the Transaction
Entities with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act) is required in connection with the offering or sale of the Securities; 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 other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, of the suspension
of the qualification of the Securities 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
other prospectus or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order; and in the event of any such issuance of a notice of
objection, promptly to take such steps including, without limitation, amending the
Registration Statement or filing a new registration statement, at its own expense, as may
be necessary to permit offers and sales of the Securities by the Underwriters (references
herein to the Registration Statement shall include any such amendment or new registration
statement).
| (b) | If required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus
in a form approved by the Representatives and to file such form of prospectus pursuant to
Rule 424(b) under the Securities Act not later than may be required by Rule 424(b) under
the Securities Act; and to make no further amendment or supplement to such form of
prospectus which shall be disapproved by the Representatives promptly after reasonable
notice thereof. |
| (c) | If by the third anniversary (the “Renewal Deadline”) of the initial effective
date of the Registration Statement, any of the Securities remain unsold by the
Underwriters, the Operating Partnership will file, if it has not already done so and is
eligible to do so, an automatic shelf registration statement (as defined under Rule 405
under the Securities Act) relating to the Securities, in a form satisfactory to the
Representatives. If at the Renewal Deadline the Operating Partnership is not eligible to
file an automatic shelf registration statement, the Operating Partnership will, if it has
not already done so, file a new shelf registration statement relating to the Securities, in
a form satisfactory to the Representatives and the Transaction Entities will use their best
efforts to cause such registration statement to be declared effective as promptly as
practicable. The Transaction Entities will take all other action necessary or appropriate
to permit the public offering and sale of the Securities to |
16
continue as contemplated in the expired registration statement relating to the Securities.
References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
| (d) | Promptly from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities 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 Securities, provided that in
connection therewith, the Transaction Entities shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction. |
| (e) | Prior to 5:00 p.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters with such
number of written and electronic copies of the Prospectus in such quantities as the
Representatives may from time to time reasonably request, and if the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act) is required at any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event 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 (or in lieu thereof, the
notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such same period to
amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Securities Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and upon the
Representatives’ request to file such document and to prepare and furnish without charge to
the Underwriter and to any dealer in securities as many written and electronic copies as
the Representatives may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) in connection with
the sales of any of the Securities at any time nine months or more after the time of issue
of the Prospectus, upon the Representatives’ request but at the expense of the
Underwriters, to prepare and deliver to the Underwriter as many written and electronic
copies as the Representatives may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act. |
| (f) | To take such steps as shall be necessary to ensure that none of the Company, the
Operating Partnership or any of their subsidiaries shall become an “investment company”
within the meaning of such term under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder. |
| (g) | Except for such documents that are publicly available on the Commission’s ▇▇▇▇▇ System,
to furnish to the holders of the Securities as soon as practicable after the end of each
fiscal year an annual report (including a balance sheet and statements of income,
stockholders’ equity and cash flows of the Transaction Entities and their consolidated
subsidiaries certified |
17
by independent public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Prospectus), to make available consolidated summary financial
information of the Transaction Entities and their subsidiaries for such quarter in
reasonable detail.
| (h) | To apply the net proceeds from the sale of the Securities pursuant to this Agreement in
accordance with the description set forth in the Pricing Prospectus under the caption “Use
of Proceeds.” |
| (i) | Except as stated in this Agreement and in the Pricing Prospectus and the 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 Securities to facilitate the sale or resale of the
Securities. |
| (j) | To use its best efforts to cause the Company to continue to meet the requirements to
qualify as a “real estate investment trust” under the Code. |
| (k) | 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 reasonable
fees and expenses of counsel for the Underwriters) incurred by the Underwriters in
connection herewith. |
| 6. | (a) | (i) The Transaction Entities represent and agree that, other than the final term sheet
prepared and filed pursuant to Section 5(a) hereof, without the prior consent of
Representatives, it has not made and will not make any offer relating to the Securities that
would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act; |
|
(ii) each Underwriter represents and agrees that, without the prior consent of the
Transaction Entities and the Representatives, other than one or more term sheets relating
to the Securities containing customary information and conveyed to purchasers of
Securities, it has not made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus or a free writing prospectus required
to be filed with the Commission; and |
|||
(iii) any such free writing prospectus the use of which has been consented to by the
Transaction Entities and the Representatives (including the final term sheet prepared and
filed pursuant to Section 5(a) hereof) is listed on Schedule II(b)(ii) hereto. |
| (b) | The Transaction Entities have complied and will comply with the requirements of Rule
433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending. |
| (c) | The Transaction Entities each agree that if at any time following issuance of an Issuer
Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration Statement, the
Pricing Prospectus or the Prospectus or 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 |
18
light of the circumstances then prevailing, not misleading, the Transaction Entities
will give prompt notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each Underwriter an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Transaction Entities by an
Underwriter through the Representatives expressly for use therein.
| 7. | The Transaction Entities jointly and severally agree to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes payable in
connection therewith; (b) the costs incident to the preparation, printing and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
any Issuer Free Writing Prospectus and the Prospectus and each amendment and exhibit thereto,
all as provided in this Agreement; (d) the costs of producing and distributing this Agreement,
the Indenture, the Supplemental Indenture, closing documents (including compilations thereof),
and any other related documents in connection with the offering, purchase, sale and delivery
of the Securities; (e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions as provided
in Section 5(b) and of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters); (g) any fees charged by securities
rating services or agencies in connection with the rating of the Securities; (h) the cost of
preparing the Securities, (i) the fees and disbursements of counsel for the Trustee in
connection with the Indenture, the Supplemental Indenture and the Securities, and (j) all
other costs and expenses incident to the performance of the obligations of the Transaction
Entities under this Agreement (including the applicable fees, disbursements and expenses of
the Transaction Entities’ counsel and accountants); provided that, except as provided in
Section 5(k), this Section 7 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of the Securities
made by the Underwriters. |
| 8. | The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Transaction
Entities herein are, at and as of the Time of Delivery, true and correct, the condition that
the Transaction Entities shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions: |
| (a) | The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under
the Securities Act within the applicable time period prescribed for such filing by the
Rules and Regulations and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to be filed by the
Transaction Entities pursuant to Rule 433(d) under the Securities Act, shall have been
filed with the Commission within the applicable time periods prescribed for such filings by
Rule 433; no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission and no notice of objection of the Commission to the use of |
19
the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable satisfaction.
| (b) | On or after the Applicable Time, 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 Pricing
Prospectus which, in the opinion of the Representatives, would materially adversely affect
the market for the Securities, 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 Pricing
Prospectus untrue or which, in the reasonable opinion of the Transaction Entities and their
counsel or the Underwriters and their counsel, requires the making of any addition to or
change in the Pricing Prospectus and 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 Pricing
Prospectus and the Prospectus to reflect such event or development would, in the opinion of
the Representatives or their counsel, materially adversely affect the market for the
Securities. |
| (c) | All trust and partnership proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the Supplemental
Indenture, the Securities, the Pricing Disclosure Package, the Pricing Prospectus and the
Prospectus and the transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the Transaction
Entities shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters. |
| (d) | ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Transaction Entities, shall have furnished
to the Underwriters its written opinion, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters, to the effect that: |
(i) The Company is duly qualified to do business as a foreign entity in Florida,
Michigan, New Jersey, Pennsylvania, South Carolina and Virginia.
(ii) The Operating Partnership is validly existing and in good standing as a limited
partnership under the laws of the Commonwealth of Pennsylvania, is duly qualified to do
business as a foreign limited partnership in Arizona, Florida, Illinois, Maryland,
Michigan, Minnesota, New Jersey, North Carolina, South Carolina, Texas, Virginia,
Wisconsin and the District of Columbia, and has the requisite partnership 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, the Pricing Disclosure Package 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. To the knowledge of
such counsel, 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
20
Pricing Disclosure Package and the Prospectus. All of the partnership interests of the
Operating Partnership have been duly and validly authorized and issued, were issued in
accordance with the applicable terms of the Operating Partnership Agreement and the
certificate of limited partnership of the Operating Partnership and, to the knowledge of
such counsel, to the extent that such interests are owned by the Company, are owned by the
Company free and clear of any adverse claims as defined in Section 8-302 of the Uniform
Commercial Code.
(iii) Development Corp. is validly existing and subsisting under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and is in good standing as
a foreign corporation in Florida, Maryland, Minnesota, New Jersey, North Carolina and
Virginia, and has the requisite 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, the Pricing Disclosure Package and the Prospectus.
(iv) Development-II is validly existing and subsisting under the laws of the Commonwealth
of Pennsylvania, is duly qualified to do business and is in good standing as a foreign
corporation in Florida and Texas, and has the requisite 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, the Pricing Disclosure Package and the
Prospectus.
(v) SP Trust is validly existing as a business trust and subsisting under the laws of the
Commonwealth of Pennsylvania and has the requisite 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, the Pricing Disclosure Package and the Prospectus.
(vi) This Agreement has been (i) duly and validly authorized, executed and delivered by
the Operating Partnership and (ii) duly executed and delivered by the Company.
(vii) Each of the Indenture and the Supplemental Indenture has been duly authorized,
executed and delivered by the Operating Partnership and (assuming due execution and
delivery by the Trustee) constitutes a valid and binding agreement on the part of the
Operating Partnership, enforceable against the Operating Partnership in accordance with
its terms; each of the Indenture and the Supplemental Indenture conforms in all material
respects to the descriptions thereof contained in the Pricing Disclosure Package and the
Prospectus.
(viii) The Indenture has been duly qualified under the Trust Indenture Act.
(ix) The Securities have been duly authorized, executed, issued and delivered by the
Operating Partnership and, when executed, issued and authenticated in the manner provided
for in the Indenture and delivered against payment therefore in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture, and will constitute
valid and binding obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms. The terms of the Securities conform
in all material respects to the description thereof in the Pricing Disclosure Package and
the Prospectus.
21
(x) The execution, delivery and performance of this Agreement by each of the Transaction
Entities, the issue and sale of the Securities being delivered at the Time of Delivery by
the Operating Partnership 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 that is filed as an exhibit to the Registration
Statement or to any exhibit contained in any document incorporated by reference in the
Prospectus and as to which either of the Transaction Entities or any of their subsidiaries
is a party or by which either of the Transaction Entities or any of their subsidiaries is
bound or by which any of the Properties or other assets of either of the Transaction
Entities or any of their subsidiaries is subject, or (ii) to the knowledge of such
counsel, 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 any of their subsidiaries or any of their
properties or other assets, except with respect to clause (ii), where such conflict,
breach or violation would not have a material adverse effect on the Transaction Entities
and their subsidiaries taken as a whole; and, to the knowledge of such counsel, except for
the registration of the Securities under the Securities Act and the qualification of the
Indenture under the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may have been obtained under the Exchange Act or may be
required under applicable state securities laws in connection with the purchase and
distribution of the Securities 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, the Indenture or
the Supplemental Indenture by the Transaction Entities, the consummation of the
transactions contemplated hereby and thereby, and the issuance, sale and delivery of the
Securities to the Underwriters.
(xi) The execution, delivery and performance of this Agreement by the Operating
Partnership, the issue and sale of the Securities being delivered at the Time of Delivery
by the Operating Partnership 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, agreement of limited partnership, certificate
of formation or limited liability company operating agreement of the Operating Partnership
or any of its subsidiaries.
(xii) Except as set forth in the Pricing Prospectus and the Prospectus, there are no
statutory or, to the knowledge of such counsel, contractual or other preemptive or other
rights to subscribe for or to purchase, nor any restriction upon the transfer of the
Securities pursuant to the Operating Partnership’s certificate of limited partnership or
its agreement of limited partnership, as amended to the date hereof, or, to the knowledge
of such counsel, any agreement or other instrument to which the Operating Partnership is a
party.
(xiii) To the knowledge of such counsel, there are no contracts, agreements or
understandings between the Company and/or the Operating Partnership, on the one hand, and
any person, on the other hand, granting such person the right (A) to require the Company
or the Operating Partnership to file a registration statement under the Securities
Act with respect to any securities of the Company or the Operating Partnership owned or to
be owned by such person or (B) to require the Company or the Operating Partnership to
22
include such securities in the securities registered pursuant to the Registration
Statement, other than, in the case of clause (A) above, (i) as set forth in the Pricing
Prospectus and the Prospectus, (ii) rights of certain persons who have contributed
Properties to the Partnership in exchange for Units, (iii) rights of holders of securities
that already have been registered under the Securities Act, and (iv) rights of persons who
may acquire preferred shares of the Company in exchange for preferred units of partnership
interest in the Operating Partnership.
(xiv) To the knowledge of such counsel, there are no legal or governmental proceedings
pending to which either Transaction Entity or any of their subsidiaries is a party or by
which any property or assets of either Transaction Entity or any of their subsidiaries is
subject, that are required to be described in the Pricing Prospectus and the Prospectus
which have not been described as required. To the knowledge of such counsel, no such
proceedings are threatened by governmental authorities or others.
(xv) To the knowledge of such counsel, there are no contracts or other documents which are
required to be described in the Pricing Prospectus and 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 Pricing Prospectus and the Prospectus or filed as exhibits
to the Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations.
(xvi) Neither Transaction Entity nor any of their subsidiaries is an “investment company”
within the meaning of such term under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
(xvii) Each of the documents incorporated by reference in the Pricing Disclosure Package
and the Prospectus (except as to the financial statements, schedules, notes and other
financial data derived therefrom, as to which no opinion need be rendered), at the time
such document was filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules.
(xviii) Based solely upon the oral advice of a member of the staff of the Commission 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. The Registration
Statement was declared effective under the Securities Act as of the date and time
specified in such opinion.
(xix) 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.
(xx) The Registration Statement, on the date it initially became effective under the
Securities Act and on the effective date, pursuant to Rule 430B(f)(2) under the Securities
Act, of the part of the Registration Statement relating to the Securities for purposes of
the liability of the Underwriter under Section 11 of the Securities Act in connection with
the sale
of the Securities, the Pricing Prospectus included in the Pricing Disclosure Package as of
the Applicable Time and the Prospectus as of its date (except as to the financial
statements,
23
schedules, notes and other financial data derived therefrom, as to which no
opinion need be rendered), and any Issuer Free Writing Prospectuses, complied or will
comply as to form in all material respects with the requirements of the Securities Act and
the Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder, and the Indenture conforms in all material respects to the requirements of the
Trust Indenture Act.
(xxi) The statements contained in the Prospectus under the captions “Risk Factors,”
“Description of Debt Securities,” and “Description of Notes,” insofar as those statements
are descriptions of contracts, agreements or other legal documents, or describe federal
statutes, rules and regulations, constitute a fair summary thereof.
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 New York; and (ii) in giving the
opinions referred to in subclauses (vii) and (ix), state that such opinion with respect to
the enforceability of such documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by
equitable principles of general applicability. Such counsel shall also have furnished to
the Underwriters a written statement, addressed to the Underwriters and dated the Time of
Delivery, in form and substance satisfactory to the Underwriters, to the effect that (x)
such counsel has acted as counsel to the Transaction Entities in connection with the
preparation of the Preliminary Prospectus and the Prospectus and has reviewed the
Registration Statement, and (y) subject to the foregoing, such counsel confirms that
nothing came to such counsel’s attention that caused such counsel to believe that, on the
basis of the information gained in the course of performing the services referred to
therein, (i) the Registration Statement, on the effective date, pursuant to Rule
430B(f)(2) under the Securities Act, of the part of the Registration Statement relating to
the Securities for purposes of the liability of the Underwriters under Section 11 of the
Securities Act in connection with the sale of the Securities, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) the Pricing
Disclosure Package, at the Applicable Time, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading or (iii)
the Prospectus, as of its date, or as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that such counsel is not passing upon and
does not (a) assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Pricing Prospectus or the
Prospectus (except as and to the extent set forth in such opinion), (b) express any belief
with respect to the financial statements, schedules, notes and other financial data
derived therefrom included or incorporated by reference in, or omitted from, the
Registration Statement, the Pricing Prospectus or the Prospectus, or the Statement of
Eligibility on Form T-1 of the Trustee and (c) express any belief with respect to any
statement in a document incorporated by reference in the Registration Statement, the
Pricing Disclosure Package or the Prospectus, to the extent that, pursuant to Rule 412
under the Securities Act, such
statement is deemed modified or superseded in the Registration Statement, the Pricing
Disclosure Package or the Prospectus, as the case may be, at the respective times as of
24
which the advisements set forth in this paragraph are provided.
| (e) | ▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to the
Underwriters its written opinion dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters, 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, to conduct the
business in which it is engaged as described in the Registration Statement, the Pricing
Disclosure Package 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 Pricing Disclosure
Package and the Prospectus.
(iii) This Agreement has been duly and validly authorized, executed and delivered by the
Company.
(iv) The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby (i) will not violate or conflict with
any provision of Title 8 of the Corporations and Associations Article of the Annotated
Code of Maryland; and (ii) to such counsel’s knowledge will not conflict with, violate or
result in the breach of any judgment, order, writ or decree 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.
(v) 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.
(vi) 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 best knowledge of such counsel no such
proceedings are threatened or contemplated by governmental authorities or threatened by
others.
| (f) | (i) Cozen ▇’▇▇▇▇▇▇, tax counsel for the Transaction Entities, shall have furnished to
the Underwriters its written opinion, addressed to the Underwriters and dated the Time of
Delivery, and in form and substance satisfactory to the Underwriters, with respect to such
tax matters, including, without limitation, the qualification of the Company as a real
estate investment trust and the classification of the Operating Partnership as a
partnership (and not as a corporation) for federal income tax purposes, as the
Underwriters may reasonably require. |
(ii) In addition, such opinion shall state that the statements contained in the Pricing
Prospectus and the Prospectus under the caption “Federal Income Tax Considerations with
25
Respect to the Trust and Operating Partnership,” and in the Prospectus Supplement under
the caption “Certain Federal Income Tax Considerations”, insofar as those statements are
statements of law, legal conclusions, 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, are correct in all material
respects.
| (g) | The Underwriters shall have received from ▇▇▇▇▇ Lovells US LLP, counsel for the
Underwriters, such opinion or opinions, addressed to the Underwriters and dated the Time of
Delivery, with respect to the issuance and sale of the Securities being delivered at the
Time of Delivery by the Operating Partnership, the Pricing Disclosure Package, the
Prospectus and other related matters as the Underwriters may reasonably require, and the
Transaction Entities shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters. |
| (h) | On the date of the Prospectus, at the time of execution of this Agreement and also at
the Time of Delivery, Ernst & Young LLP shall have furnished to the Representatives a
letter or letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Representatives, which letters shall cover, without limitation, the
various financial statements and disclosures contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings as contemplated in the Statement on Auditing Standards No. 72,
as well as confirming that they have performed a review of any unaudited interim financial
information of the Transaction Entities included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus in accordance with
Statement on Auditing Standards No. 100. |
| (i) | The Transaction Entities shall have furnished to the Underwriters at the Time of
Delivery a certificate, addressed to the Underwriters and dated as of the Time of Delivery,
of the Chief Financial Officer of the Company (for the Company and for the Company as
general partner of the Operating Partnership) in form and substance reasonably acceptable
to the Underwriters. In addition, the Transaction Entities shall have furnished to the
Underwriters at the Time of Delivery a certificate, addressed to the Underwriters and dated
as of the Time of Delivery, 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 and warranties of the Transaction Entities in this Agreement are
true and correct on and as of the Time of Delivery; the Transaction Entities complied with
all of their covenants and agreements contained herein; and the conditions set forth in
Section 8(a), 8(j), 8(l), 8(n) and 8(p) have been fulfilled; and
(ii) They have carefully examined the Pricing Disclosure Package and the Prospectus and,
in their opinion (A) as of the Applicable Time, the Pricing Disclosure Package and the
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, and (B) since the Applicable Time no event has occurred which should have
26
been set forth in a supplement or amendment to the Pricing Disclosure Package and the
Prospectus.
| (j) | None of the Transaction Entities or any of their subsidiaries or any Property shall
have sustained since the date of the latest audited financial statements included, or
incorporated by reference, in the Pricing Prospectus and 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 Pricing Prospectus and the
Prospectus, or (ii) since the respective dates as of which information is given in the
Pricing Prospectus and the Prospectus there shall not have been any change in the capital
shares or long-term debt of either Transaction Entity or any of their subsidiaries 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 and their subsidiaries,
otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus,
the effect of which, in any such case described in clause (i) or (ii), is in the
Representatives’ judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities being delivered
at the Time of Delivery on the terms and in the manner contemplated in this Agreement and
in the Pricing Prospectus and the Prospectus. |
| (k) | On or after the Applicable Time, 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 New York State authorities
or there shall have occurred a material disruption in commercial banking or securities
settlement or clearance services in the United States, (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 any other calamity or crisis in the
United States or elsewhere resulting in a material disruption in the financial markets in
the United States or 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 your judgment,
impracticable or inadvisable to proceed with the public offering or delivery of the
Securities being delivered at the Time of Delivery on the terms and in the manner
contemplated in the Pricing Disclosure Package and the Prospectus. |
| (l) | Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall
have occurred in the rating accorded the Company’s or the Operating Partnership’s debt
securities by any “nationally recognized statistical rating organization”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii)
no such organization shall have publicly announced that it has under surveillance or
review,
with possible negative implications, its rating of any of the Company’s or the Operating
Partnership’s debt securities. |
27
| (m) | The Transaction Entities shall have complied with the provisions of Section 5(e) hereof
with respect to the furnishing of the Prospectus on the New York Business Day next
succeeding the date of this Agreement. |
| (n) | The Transaction Entities shall not have failed at or prior to the Time of Delivery 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 the Time of Delivery. |
| (o) | At the Time of Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations and
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 Securities being delivered at the Time of Delivery as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and their counsel. |
| (p) | The Transaction Entities shall have furnished or caused to be furnished to the
Underwriters such further certificates and documents as the Underwriters shall have
reasonably requested. |
| (q) | 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. |
| (r) | 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. |
| 9. | (a) | The Transaction Entities will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Securities 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, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required
to be filed pursuant to Rule 433(d) under the Act, 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 not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim 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 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, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives expressly for use therein.
The |
28
Transaction Entities hereby acknowledge that the only information that the
Underwriters have furnished to the Transaction Entities expressly for use the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
are the statements set forth (A) as the fourth paragraph concerning the offering price and
dealer concessions under the caption “Underwriting” in the Prospectus and (B) as the
seventh, eighth and ninth paragraphs concerning stabilization under the caption
“Underwriting” in the Prospectus.
| (b) | Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Transaction Entities against any losses, claims, damages or liabilities to which the
Transaction Entities may become subject, under the Securities 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, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, 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 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, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Transaction Entities by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Transaction Entities for any legal or
other expenses reasonably incurred by the Transaction Entities in connection with
investigating or defending any such action or claim as such expenses are incurred. |
| (c) | Promptly after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such action 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 therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying 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 under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the indemnified party, effect
the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement, |
29
compromise or judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
| (d) | If the indemnification provided for in this Section 9 is unavailable to or insufficient
to hold harmless 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 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 Transaction Entities on the one hand and the Underwriters on the other from
the offering of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, 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 of
the Transaction Entities on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions 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 shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the Transaction
Entities bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table of the coverage of the Prospectus.
The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Transaction Entities on the
one hand or the Underwriters on the other and the parties’ relative intent, 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 contribution pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred
to 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),
no Underwriter shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to investors
were offered to investors exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting obligations and not
joint. |
| (e) | The obligations of the Transaction Entities under this Section 9 shall be in addition
to any liability which the Transaction Entities may otherwise have and shall extend, upon
the same terms and conditions, to any affiliate of each Underwriter and each person, if
any, who |
30
controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 9 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Transaction Entities and to each
person, if any, who controls the Transaction Entities within the meaning of the Securities
Act.
| 10. | (a) | If any Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder, the Representatives may in their discretion arrange for the
Representatives or another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the Transaction
Entities shall be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to purchase such Securities
on such terms. In the event that, within the respective prescribed periods, the
Representatives notify the Transaction Entities that they have so arranged for the purchase of
such Securities, or the Transaction Entities notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Transaction Entities
shall have the right to postpone the Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the Prospectus, or
in any other documents or arrangements, and the Transaction Entities agree to prepare promptly
any amendments to the Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party
to this Agreement with respect to such Securities. |
| (b) | If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Transaction Entities
as provided in subsection (a) above, the aggregate principal amount of such Securities
which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Transaction Entities shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default. |
| (c) | If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Transaction Entities
as provided in subsection (a) above, the aggregate principal amount of Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Transaction Entities shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Transaction
Entities, except for the expenses to be
borne by the Transaction Entities and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default. |
31
| 11. | The respective indemnities, agreements, representations, warranties and other statements of
the Transaction Entities and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or any controlling person of any Underwriter, or the
Transaction Entities, or any officer or director or controlling person of the Transaction
Entities, and shall survive delivery of and payment for the Securities. |
| 12. | If this Agreement shall be terminated pursuant to Section 10 hereof, the Transaction Entities
shall not then be under any liability to any Underwriter except as provided in Sections 7 and
9 hereof; but, if for any other reason, the Securities are not delivered by or on behalf of
the Transaction Entities as provided herein, the Transaction Entities will reimburse the
Underwriters through the Representatives for all expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Securities, but
the Transaction Entities shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof. |
| 13. | In all dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives. |
| 14. | All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the
Representatives, if to Banc of America Securities LLC, NY1-100-18-03, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: High Grade DCM Transaction Management/Legal (Fax:
▇▇▇-▇▇▇-▇▇▇▇), if to Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇), and if to ▇▇▇▇▇ Fargo Securities, LLC,
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Transaction Management
(Fax: ▇▇▇-▇▇▇-▇▇▇▇), and if to the Transaction Entities shall be delivered or sent by mail,
telex or facsimile transmission to the Company, at Liberty Property Trust, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇). Any
such statements, requests, notices or agreements shall take effect upon receipt thereof. |
| 15. | This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters,
the Transaction Entities and, to the extent provided in Sections 9 and 11 hereof, the officers
and directors of the Transaction Entities and each person who controls the Transaction
Entities or any Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase. |
| 16. | Time shall be of the essence of this Agreement. |
| 17. | Each of the Transaction Entities acknowledges and agree that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Transaction Entities, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each Underwriter is
acting solely as a principal and not the agent or fiduciary of the Transaction Entities, (iii)
no Underwriter |
32
has assumed an advisory or fiduciary responsibility in favor the Transaction
Entities with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Transaction
Entities on other matters) or any other obligation to the Transaction Entities except the
obligations expressly set forth in this Agreement and (iv) the Transaction Entities have
consulted their own legal and financial advisors to the extent it deemed appropriate. Each of
the Transaction Entities agree that it will not claim that the Underwriter, or any of them,
has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to either of the Transaction Entities, in connection with such transaction or the process
leading thereto.
| 18. | This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Transaction Entities and the Underwriters, or any of them, with respect to the
subject matter hereof. |
| 19. | This Agreement shall be governed by and construed in accordance with the laws of the State of
New York. |
| 20. | The Transaction Entities and each of the Underwriters hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby. |
| 21. | 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 respective
counterparts shall together constitute one and the same instrument. |
| 22. | Notwithstanding anything herein to the contrary, the Transaction Entities (and the
Transaction Entities’ employees, representatives, and other agents) are authorized to disclose
to any and all persons, the tax treatment and tax structure of the potential transaction and
all materials of any kind (including tax opinions and other tax analyses) provided to the
Transaction Entities relating to that treatment and structure, without the Underwriters’
imposing any limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall not apply) to
the extent necessary to enable any person to comply with securities laws. For this purpose,
“tax treatment” means US federal and state income tax treatment, and “tax structure” is
limited to any facts that may be relevant to that treatment. |
33
If the foregoing is in accordance with your understanding, please sign and return six (6)
counterparts hereof, and upon the acceptance hereof by the Representatives, on behalf of each of
the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement
between each of the Underwriters and the Transaction Entities. It is understood that the
Representatives’ acceptance of this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted
to the Company for examination upon request, but without warranty on the Representatives’ part as
to the authority of the signers thereof.
| Very truly yours, LIBERTY PROPERTY TRUST |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Chairman, President and Chief Executive Officer | |||
| LIBERTY PROPERTY LIMITED PARTNERSHIP |
||||
| By: | Liberty Property Trust, its general partner |
|||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Chairman, President and Chief Executive Officer | |||
| Accepted: | ||||
| BANC OF AMERICA SECURITIES LLC | ||||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇ | ||||
Name:
|
▇▇▇▇ ▇▇▇▇▇▇ | |||
Title:
|
Managing Director | |||
| CITIGROUP GLOBAL MARKETS INC. | ||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇ | |||
Title:
|
Vice President | |||
| ▇▇▇▇▇ FARGO SECURITIES, LLC | ||||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
Name:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
Title:
|
Director | |||
| On behalf of each of the Underwriters | ||||
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Securities | ||||
| to be | ||||
| Underwriter | Purchased | |||
Banc of America Securities LLC |
$ | 88,655,000.00 | ||
Citigroup Global Markets Inc. |
88,655,000.00 | |||
▇▇▇▇▇ Fargo Securities, LLC |
88,690,000.00 | |||
▇▇▇▇▇▇▇, Sachs & Co. |
10,500,000.00 | |||
▇.▇. ▇▇▇▇▇▇ Securities LLC |
10,500,000.00 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
10,500,000.00 | |||
RBS Securities Inc. |
10,500,000.00 | |||
Scotia Capital (USA) Inc. |
10,500,000.00 | |||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
10,500,000.00 | |||
UBS Securities LLC |
10,500,000.00 | |||
U.S. Bancorp Investments, Inc. |
10,500,000.00 | |||
| $ | 350,000,000 | |||
SCHEDULE II(a)
| (i) | Jurisdictions of Due Qualification and Good Standings for Liberty Property Trust: |
|
Maryland Florida Michigan New Jersey Pennsylvania South Carolina Virginia |
||
| (ii) | Jurisdictions of Due Qualification and Good Standings for Liberty Property Limited Partnership: |
|
Arizona District of Columbia Florida Illinois Maryland Michigan Pennsylvania Minnesota New Jersey North Carolina South Carolina Texas Virginia Wisconsin |
SCHEDULE II(b)
(i) Additional Documents Incorporated by Reference:
None.
(ii) Issuer Free Writing Prospectuses:
Final Term Sheet, filed with the Commission on September 22, 2010.
SCHEDULE III
FINAL TERM SHEET
Dated: September 22, 2010
Issuer:
|
Liberty Property Limited Partnership | |
Security:
|
4.75% Senior Notes due 2020 | |
Format:
|
SEC Registered | |
Size:
|
$350,000,000 | |
Expected Ratings (▇▇▇▇▇’▇ / S&P / Fitch)*:
|
Baa2 / BBB / BBB+ | |
Trade Date:
|
September 22, 2010 | |
Settlement Date:
|
September 27, 2010 (T+3) | |
Maturity Date:
|
October 1, 2020 | |
Interest Payment Dates:
|
April 1 and October 1, commencing April 1, 2011 | |
Benchmark Treasury:
|
2.625% due August 15, 2020 | |
Benchmark Treasury Price and Yield:
|
100-26+ / 2.53% | |
Spread to Benchmark Treasury:
|
T+ 225 bps | |
Yield to Maturity:
|
4.78% | |
Coupon:
|
4.75% | |
Public Offering Price:
|
99.763% | |
Optional Redemption:
|
Any time prior to July 1, 2020, the notes may be redeemed at an amount equal to the sum of (i) the principal amount plus accrued interest to the redemption date and (ii) Make-Whole Amount of T+ 35 bps. At any time on or after July 1, 2020, the notes may be redeemed at par. | |
CUSIP / ISIN:
|
▇▇▇▇▇▇▇▇▇ / US53117CAM47 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Citigroup Global Markets Inc. ▇▇▇▇▇ Fargo Securities, LLC |
Co-Managers:
|
▇▇▇▇▇▇▇, Sachs & Co. ▇.▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated RBS Securities Inc. Scotia Capital (USA) Inc. SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. UBS Securities LLC U.S. Bancorp Investments, Inc. |
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the preliminary
prospectus supplement and the related prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the issuer or any underwriter participating in the offering will arrange to send you
the prospectus if you request it by calling Banc of America Securities LLC toll-free at
1-800-294-1322, Citigroup Global Markets Inc. toll free at 1- 800-831-9146 or ▇▇▇▇▇ Fargo
Securities, LLC toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇ or via email to
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇.
SCHEDULE IV
Liberty Property Philadelphia Trust, a Pennsylvania trust
Liberty Property Philadelphia Trust VI, a Delaware trust
Liberty Property Philadelphia Corporation, a Pennsylvania corporation
Liberty Property Philadelphia Corporation, a Pennsylvania corporation
Liberty Property Philadelphia Corporation IV East, a Pennsylvania corporation
Liberty Property Philadelphia Corporation IV West, a Pennsylvania corporation
Liberty Property Philadelphia Navy Yard Corporation V, a Pennsylvania corporation
Republic Property TRS, LLC, a Delaware limited liability company
LP Malvern LLC, a Pennsylvania limited liability company
Liberty Delaware, LLC, a Delaware limited liability company
Liberty Venture I, LLC, a Delaware limited liability company
Liberty Illinois Venture, LLC, a Delaware limited liability company
Liberty Washington Venture, LLC, a Delaware limited liability company
Liberty Property Philadelphia Navy Yard Limited Partnership, a Pennsylvania limited partnership
Liberty Lehigh Partnership, a Pennsylvania general partnership
Liberty Property Trust UK Limited, a UK company
▇▇▇▇▇ ▇▇▇▇ (Residential) Limited, a UK company
Kings Hill Property Management Limited, a UK company
SCHEDULE V
Comcast Center
Liberty/Commerz ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, L.P., a Delaware limited partnership
Philadelphia Navy Yard Limited Partnership
Liberty Property/Synterra Limited Partnership, a Pennsylvania limited partnership
New Jersey Industrial Properties
Liberty Venture I, LP, a Delaware limited partnership
Florida Properties JV
Liberty AIPO Limited Partnership, a Florida limited partnership
Chicago Properties JV
Liberty Illinois, LP, a Delaware limited partnership
Republic JV
Liberty Washington, LP, a Delaware limited partnership
UK JV
Liberty Property Trust Lux SARL, a Luxembourg company
Cambridge Medipark Limited, a UK company
Silversword Properties Limited, a UK company
Kings Hill Unit Trust, a Jersey Unit Trust
Blythe Valley JV Sarl, a UK company
Kings Hill Property Management Limited, a UK company