Liberty Property Trust (a Maryland real estate investment trust) $150 Million Common Shares of Beneficial Interest ($0.001 par value per share) Equity Distribution Agreement
Exhibit 1.1
EXECUTION COPY
Liberty Property Trust
(a Maryland real estate investment trust)
(a Maryland real estate investment trust)
$150 Million Common Shares
of Beneficial Interest
($0.001 par value per share)
of Beneficial Interest
($0.001 par value per share)
December 18, 2008
Citigroup Global Markets Inc.
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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 confirms
its agreement (this “Agreement”) with Citigroup Global Markets Inc. (the “Manager”)
as follows:
1. Description of Shares. The Company proposes to issue and sell through or to the
Manager, as sales agent and/or principal, common shares of beneficial interest of the Company,
$0.001 par value per share (“Common Shares”), having an aggregate gross sales price of up
to $150 million (the “Shares”), from time to time during the term of this Agreement and on
the terms set forth in Section 3 of this Agreement. For purposes of selling the Shares through the
Manager, the Company hereby appoints the Manager as exclusive agent of the Company for the purpose
of soliciting purchases of the Shares from the Company pursuant to this Agreement and the Manager
agrees to use its reasonable efforts to solicit purchases of the Shares on the terms and subject to
the conditions stated herein. The Company agrees that whenever it determines to sell the Shares
directly to the Manager as principal, it will enter into a separate agreement (each, a “Terms
Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance
with Section 3 of this Agreement. Certain terms used herein are defined in Section 18 hereof.
2. Representations and Warranties. Each of the Transaction Entities, jointly and
severally, represents and warrants to, and agrees with, the Manager at the Execution Time and on
each such time the following representations and warranties are repeated or deemed to be made
pursuant to this Agreement, as set forth below.
(a) The Company and the Operating Partnership each meet the requirements for use of
Form S-3 under the Act and prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (File Number 333-150737),
on Form S-3, including a related Base Prospectus, for registration under the Act of the
offering and sale of certain securities, including the Shares. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time or prior to any such time
this representation is repeated or deemed to be made, became effective upon filing and no
stop order suspending the effectiveness of the Registration Statement or any part thereof
has been issued or is in effect 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 the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act has been received by the Transaction Entities. The Company has filed with the
Commission the Prospectus Supplement relating to the Shares in accordance with Rule 424(b).
As filed, the Prospectus contains all information required by the Act and the rules
thereunder, and, except to the extent the Manager shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the Manager prior to the
Execution Time or prior to any such time this representation is repeated or deemed to be
made, and no order preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission. The Registration Statement, at the
Execution Time, each such time this representation is repeated or deemed to be made, and at
all times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 or any similar rule) in connection with any
offer or sale of Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than the date three years
before the Execution Time. Any reference herein to the Registration Statement, the Base
Prospectus, the Prospectus Supplement 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
which were filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Base Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
(b) To the extent that the Registration Statement is not available for the sales of the
Shares as contemplated by this Agreement or the Company or the Operating Partnership is not
a “well-known seasoned issuer” as defined in Rule 405 or otherwise is unable to make the
representations set forth in Section 2(e) at any time when such representations are
required, the Company shall file a new registration statement with respect to any additional
Common Shares necessary to complete such sales of the Shares and shall cause such
registration statement to become effective as promptly as practicable. After the
effectiveness of any such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new registration statement,
including all documents incorporated by reference therein pursuant to Item 12 of Form S-3,
and all references to “Base Prospectus” included in this Agreement shall be deemed to
include the final form of prospectus, including all
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documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.
(c) On each Effective Date, the Registration Statement complied and will comply in all
material respects with the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b), at the Execution Time, at each Applicable Time, on each Settlement
Date and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 or any similar rule) in connection
with any offer or sale of Shares, the Prospectus (together with any supplement thereto)
complied and will comply in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder and did not and will not
include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Transaction Entities
make no representations or warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Transaction Entities by the Manager
specifically for inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(d) At the Execution Time, at each Applicable Time and at each Settlement Date, the
Disclosure Package does not and will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Transaction Entities by the
Manager specifically for use therein.
(e) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Shares in reliance on the exemption in Rule 163,
and (iv) at the Execution Time and on each such time this representation is repeated or
deemed to be made (with such date being used as the determination date for purposes of this
clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as
defined in Rule 405. The Transaction Entities agree to pay the fees required by the
Commission relating to the Shares within the time required by Rule 456(b)(1) without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(f) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of
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Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such time
this representation is repeated or deemed to be made (with such date being used as the
determination date for purposes of this clause (ii)), neither the Company nor the Operating
Partnership was or is an Ineligible Issuer (as defined in Rule 405), without taking account
of any determination by the Commission pursuant to Rule 405 that it is not necessary that
the Company or the Operating Partnership be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Transaction Entities by the Manager
specifically for use therein.
(h) The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a
pending proceeding under Section 8A of the Act in connection with the offering of the
Shares.
(i) The Common Shares are an “actively-traded security” exempted from the requirements
of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(j) The Transaction Entities have not entered into any other sales agency agreements or
other similar arrangements with any agent or any other representative in respect of at the
market offerings of the Shares in accordance with Rule 415(a)(4) of the Act.
(k) 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 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. Except as described in the Disclosure Package and the Prospectus
and other than the Property Affiliates (as defined herein), the entities listed in Schedule
III 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.
(l) The Company has an authorized capitalization as set forth in the Disclosure Package
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-
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assessable and conform to the description thereof contained in the Disclosure Package
and the Prospectus. Except as disclosed in the Disclosure Package and the Prospectus and
with respect to the Company’s Amended and Restated Share Incentive Plan (the “Share
Incentive Plan”) and the Company’s 2008 Long-Term Incentive Plan (the “2008
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 Disclosure Package 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 or the 2008 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.
(m) 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 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 Disclosure Package and the Prospectus. The owner’s equity of the Operating
Partnership is as described in the Disclosure Package 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.
(n) 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 Disclosure Package and the Prospectus, is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim,
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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.
(o) 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 Disclosure Package 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-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.
(p) 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.
(q) 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 III 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
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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 Disclosure Package 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 Disclosure
Package and the Prospectus, are owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim, restriction or equities.
(r) The Shares to be issued and sold by the Company to the Manager hereunder have been
duly and validly authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable and will conform in all material respects to the
description of the Common Shares contained in, or incorporated by reference in, the
Disclosure Package and the Prospectus. Upon payment of the purchase price and delivery of
the Shares in accordance herewith, the Manager will receive good, valid and marketable title
to the Shares, free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims, restrictions and equities.
(s) (A) This Agreement and any applicable Terms Agreement have been duly and validly
authorized, executed and delivered by each of the Transaction Entities, and assuming due
authorization, execution and delivery by the Manager, 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.
(t) The issue and sale of the Shares, the execution, delivery and performance of this
Agreement by each of the Transaction Entities 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,
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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, consummation of the transactions contemplated hereby and thereby and
the issuance and delivery of the Shares, except such as have been obtained under the 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 Shares by the Manager.
(u) Other than as described in the Disclosure Package 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 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 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 Act.
(v) Except (i) as described or contemplated in the Disclosure Package and the
Prospectus or pursuant to the Share Incentive Plan, and (ii) for the issuance of Common
Shares upon redemption of Units, neither Transaction Entity has sold or issued any
securities during the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A or Regulations D or S under the Act.
(w) The Shares have been approved for listing on the New York Stock Exchange
(“NYSE”), subject only to official notice of issuance.
(x) Neither of the Transaction Entities nor any of the Properties has sustained, since
the date of the latest audited financial statements included in the Disclosure Package 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 Disclosure Package 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.
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(y) The financial statements (including the related notes and supporting schedules
thereto) included, or incorporated by reference, in the Disclosure Package 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. Pro forma financial information included in or
incorporated by reference in the Disclosure Package and the Prospectus has been prepared in
accordance with the applicable requirements of the Act 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.
(z) 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 Act.
(aa) (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 Disclosure Package 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 Disclosure Package and the Prospectus are disclosed therein;
(C) except as otherwise described in the Disclosure Package 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.
(bb) 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
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and deeds of trust are not cross-defaulted or cross-collateralized with any property
other than other Properties.
(cc) 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.
(dd) Except as disclosed in the Disclosure Package and the Prospectus and except such
as in each case would not have a material adverse effect on any Property, any Property
Affiliate, 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
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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.), 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.
(ee) 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.
(ff) 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.
(gg) Except as described in the Disclosure Package 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
11
Transaction Entities, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(hh) There are no contracts or other documents which are required to be described in
the Disclosure Package and the Prospectus, or filed as exhibits to the Registration
Statement by the Act, which have not been described in the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement.
(ii) 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 Disclosure Package
and the Prospectus.
(jj) 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.
(kk) 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”).
(ll) 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.
(mm) At all times since June 16, 1994, the Company has been, and upon the sale of the
Shares will continue to be, organized and operated in conformity with the
12
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 will enable the
Company to continue to meet the requirements for qualification and taxation as a real estate
investment trust under the Code.
(nn) Since the date as of which information is given in the Disclosure Package and the
Prospectus through the date hereof, and except as may otherwise be disclosed or contemplated
in the Disclosure Package and the Prospectus, neither Transaction Entity has (i) issued or
granted any securities, (ii) incurred any liability or obligation, direct or contingent,
other than liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital shares (other than regular quarterly
dividends).
(oo) 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 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.
(pp) 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.
(qq) 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
13
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.
(rr) 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.
(ss) 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.
(tt) Except as described in the Disclosure Package, 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 share options have been granted with an exercise price based
upon a price of the Common Shares 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 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.
(uu) 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.
(vv) 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.
(ww) Other than this Agreement and as set forth in the Disclosure Package and the
Prospectus under the heading “Plan of Distribution,” there are no contracts,
14
agreements or understandings between either Transaction Entity and any person that
would give rise to a valid claim against either Transaction Entity or the Manager for a
brokerage commission, finder’s fee or other like payment with respect to issue and sale of
the Shares and the consummation of the transactions contemplated by this Agreement.
(xx) 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.
(yy) None of the transactions contemplated by this Agreement (including, without
limitation, the use of the proceeds from the sale of the Shares) 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.
(zz) 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 the Transaction Entities in connection with the offering of the Shares.
(aaa) The statements set forth in the Disclosure Package and the Prospectus under the
caption “Securities Offered by this Prospectus”, insofar as they purport to constitute a
summary of the terms of the Shares, and under the caption “Federal Income Tax Consequences”
and “Federal Income Tax Considerations with Respect to the Trust and the Operating
Partnership”, insofar as they pertain to summaries of US federal income tax law, and under
the caption “Plan of Distribution”, insofar as they pertain to the Agreement, are accurate,
complete and fair.
Any certificate signed by any officer of either of the Transaction Entities and delivered to
the Manager or counsel for the Manager in connection with this Agreement or any Terms Agreement
shall be deemed a representation and warranty by the Transaction Entities, as to matters covered
thereby, to the Manager.
3. Sale and Delivery of Shares.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to issue and sell Shares from time to time through
the Manager, acting as sales agent, and the Manager agrees to use its reasonable efforts to sell,
as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Manager on any day that (A) is a trading day for
the NYSE, (B) the Company has instructed the Manager by telephone (confirmed
promptly by electronic mail) to make such sales and (C) the Transaction Entities
have satisfied their obligations under Section 6 of this Agreement. The Company
will designate the maximum amount of the Shares to be sold by the Manager daily as
agreed to by the Manager (in any event not
15
in excess of the amount available for issuance under the Prospectus and the
currently effective Registration Statement) and the minimum price per Share at
which such Shares may be sold. Subject to the terms and conditions hereof, the
Manager shall use its reasonable efforts to sell on a particular day all of the
Shares designated for the sale by the Company on such day. The gross sales price
of the Shares sold under this Section 3(a) shall be the market price for shares of
the Company’s Common Shares sold by the Manager under this Section 3(a) on the
NYSE at the time of sale of such Shares.
(ii) Each of the Transaction Entities acknowledges and agrees that (A) there
can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Transaction Entities or
any other person or entity if it does not sell Shares for any reason other than a
failure by the Manager to use its reasonable efforts consistent with its normal
trading and sales practices and applicable law and regulations to sell such Shares
as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as
otherwise specifically agreed by the Manager and the Transaction Entities.
(iii) The Company shall not authorize the issuance and sale of, and the
Manager shall not be obligated to use its reasonable efforts to sell, any Share at
a price lower than the minimum price therefor designated from time to time by the
Company’s Board of Trustees (the “Board”), or a duly authorized committee
thereof, and notified to the Manager in writing. The Company or the Manager may,
upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any
time; provided, however, that such suspension or termination shall
not affect or impair the parties’ respective obligations with respect to the
Shares sold hereunder prior to the giving of such notice.
(iv) The Manager hereby covenants and agrees not to make any sales of the
Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by
means of ordinary brokers’ transactions between members of the NYSE that qualify
for delivery of a Prospectus to the NYSE in accordance with Rule 153 (such
transactions are hereinafter referred to as “At-the-Market Offerings”) and
(B) such other sales of the Shares on behalf of the Company in its capacity as
agent of the Company as shall be agreed by the Transaction Entities and the
Manager pursuant to a Terms Agreement.
(v) The compensation to the Manager for sales of the Shares with respect to
which the Manager acts as sales agent under this Agreement shall be 2% of the
gross sales price of the Shares sold pursuant to this Section 3(a). The foregoing
rate of compensation shall not apply when the Manager acts as principal, in which
case the Company may sell Shares to the Manager as principal at a price agreed
upon at the relevant Applicable Time pursuant to a
16
Terms Agreement. The remaining proceeds shall constitute the net proceeds to
the Transaction Entities for such Shares (the “Net Proceeds”).
(vi) The Manager shall provide written confirmation (which may be by
facsimile or electronic mail) to the Company following the close of trading on the
NYSE each day in which the Shares are sold under this Section 3(a) setting forth
the number of the Shares sold on such day, the aggregate gross sales proceeds and
the Net Proceeds to the Transaction Entities, and the compensation payable by the
Transaction Entities to the Manager with respect to such sales.
(vii) Settlement for sales of the Shares pursuant to this Section 3(a) will
occur on the third business day following the date on which such sales are made
(each such day, a “Settlement Date”). On each Settlement Date, the Shares
sold through the Manager for settlement on such date shall be issued and delivered
by the Company to the Manager against payment of the Net Proceeds for the sale of
such Shares. Settlement for all such Shares shall be effected by free delivery of
the Shares to the Manager’s account at The Depository Trust Company
(“DTC”) in return for payments in same day funds delivered to the account
designated by the Transaction Entities. If the Company or its transfer agent (if
applicable) shall default on its obligation to deliver the Shares on any
Settlement Date, the Transaction Entities shall (A) indemnify and hold the Manager
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (B) pay the Manager any commission to which it would
otherwise be entitled absent such default. If the Manager breaches this Agreement
by failing to deliver the Net Proceeds on any Settlement Date for the Shares
delivered by the Company, the Manager will pay the Company interest based on the
effective overnight federal funds rate.
(viii) At each Applicable Time, Settlement Date and Representation Date (as
defined in Section 4(k)), the Transaction Entities shall be deemed to have
affirmed each representation and warranty contained in this Agreement as if such
representation and warranty were made as of such date, modified as necessary to
relate to the Registration Statement and the Prospectus as amended as of such
date. Any obligation of the Manager to use its reasonable efforts to sell the
Shares on behalf of the Company shall be subject to the continuing accuracy of the
representations and warranties of the Transaction Entities herein, to the
performance by the Transaction Entities of their obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Section 6 of
this Agreement.
(b) If the Company wishes to issue and sell the Shares pursuant to this Agreement but
other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it
will notify the Manager of the proposed terms of such Placement. If the Manager, acting as
principal, wishes to accept such proposed terms (which it may decline to do for any reason
in its sole discretion) or, following discussions with the Company wishes to accept
17
amended terms, the Manager and the Transaction Entities will enter into a Terms
Agreement setting forth the terms of such Placement. The terms set forth in a Terms
Agreement will not be binding on the Transaction Entities or the Manager unless and until
each of the Transaction Entities and the Manager have executed such Terms Agreement
accepting all of the terms of such Terms Agreement. In the event of a conflict between the
terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms
Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms
of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of
such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Shares by the Manager. The
commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of the
Transaction Entities herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the number of the Shares to be
purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together
with the Manager in the reoffering of the Shares, and the time and date (each such time and
date being referred to herein as a “Time of Delivery”) and place of delivery of and
payment for such Shares. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6
of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold
pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth
in Section 1 or (ii) the number and aggregate amount of the Shares authorized from time to
time to be issued and sold under this Agreement by the Board, or a duly authorized committee
thereof, and notified to the Manager in writing.
(e) If any of the parties has reason to believe that the exemptive provisions set forth
in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to
the Shares, it shall promptly notify the other parties and sales of the Shares under this
Agreement and any Terms Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement, the Transaction Entities
agree that no sales of Shares shall take place, and the Transaction Entities shall not
request the sale of any Shares, and the Manager shall not be obligated to sell, during any
period in which either of the Transaction Entities is, or could be deemed to be, in
possession of material non-public information; provided that, notwithstanding the
provisions of this paragraph (f), the Transaction Entities agree that no sales of Shares
shall take place during the fourteen (14) calendar days prior to an Earnings Release (as
defined below).
18
4. Agreements. Each of the Transaction Entities, jointly and severally, agrees with
the Manager that:
(a) During any period when the delivery of a prospectus relating to the Shares is
required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172) to be delivered under the Act, the Transaction Entities will not file any
amendment of the Registration Statement or supplement (including the Prospectus Supplement)
to the Base Prospectus unless the Company has furnished to the Manager a copy for its review
prior to filing and will not file any such proposed amendment or supplement to which the
Manager reasonably objects. The Transaction Entities have properly completed the
Prospectus, in a form approved by the Manager, and filed such Prospectus, as amended at the
Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by
the Execution Time and will cause any supplement to the Prospectus to be properly completed,
in a form approved by the Manager, and will file such supplement with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed
thereby and will provide evidence satisfactory to the Manager of such timely filing. The
Transaction Entities will promptly advise the Manager (i) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether
physically or through compliance with Rule 172 or any similar rule) is required under the
Act in connection with the offering or sale of the Shares, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of any request by the Commission
or its staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the receipt by
either of the Transaction Entities of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. Each of the Transaction Entities will use its best
efforts to prevent the issuance of any such stop order or the occurrence of any such
suspension or objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop
order or relief from such occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective as soon as
practicable.
(b) If, at any time on or after an Applicable Time but prior to the related Settlement
Date or Time of Delivery, any event occurs as a result of which the Disclosure Package would
include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made
or the circumstances then prevailing not misleading, the Transaction Entities will (i)
notify promptly the Manager so that any use of the Disclosure Package may cease until it is
amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such
statement or omission; and (iii) supply
19
any amendment or supplement to the Manager in such quantities as the Manager may
reasonably request.
(c) During any period when the delivery of a prospectus relating to the Shares is
required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172) to be delivered under the Act, any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in the light of the
circumstances under which they were made at such time not misleading, or if it shall be
necessary to amend the Registration Statement, file a new registration statement or
supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, including in connection with use or delivery of the Prospectus, the Company
promptly will (i) notify the Manager of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus
to the Manager in such quantities as the Manager may reasonably request.
(d) (i) As soon as practicable, the Company will make generally available to its
security holders and to the Manager an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(ii) If either of the Transaction Entities makes any public announcement or
release disclosing the Transaction Entities’ results of operations or financial
condition for a completed quarterly or annual fiscal period (each, an
“Earnings Release”) and the Transaction Entities have not yet filed a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K with respect to
such information, as applicable, then, prior to any sale of Shares, the
Transaction Entities shall be obligated to (x) file a prospectus supplement with
the Commission under the applicable paragraph of Rule 424(b), which prospectus
supplement shall include the applicable financial information, (y) file a Current
Report on Form 8-K, which Form 8-K shall include the applicable financial
information or (z) furnish a Current Report on Form 8-K pursuant to Item 2.02
thereof, which current report shall specifically state that the applicable
financial information shall be deemed “filed” under the Exchange Act.
(e) The Company will furnish to the Manager and counsel for the Manager, without
charge, signed copies of the Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by the Manager or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied pursuant to Rule 172),
as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Manager may reasonably request. The Transaction Entities
20
jointly and severally agree to pay the expenses of printing or other production of all
documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Shares for
sale under the laws of such jurisdictions as the Manager may designate and will maintain
such qualifications in effect so long as required for the distribution of the Shares;
provided that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(g) Each of the Transaction Entities agrees that, unless it has or shall have obtained
the prior written consent of the Manager, and the Manager agrees with the Transaction
Entities that, unless it has or shall have obtained, as the case may be, the prior written
consent of the Transaction Entities, it has not made and will not make any offer relating to
the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed with
the Commission or retained by the Transaction Entities under Rule 433; provided that
the prior written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses, if any, included in Schedule I hereto. Any such
free writing prospectus consented to by the Manager or the Transaction Entities, as
applicable, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of
the Transaction Entities agrees that (i) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(h) The Company will not offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be expected to,
result in the disposition of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the Company) directly
or indirectly, including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any other Common Shares or any securities convertible into,
or exercisable, or exchangeable for, Common Shares; or publicly announce an intention to
effect any such transaction without (i) giving the Manager at least five Business Days’
prior written notice specifying the nature of the proposed transaction and the date of such
proposed transaction and (ii) the Manager suspending acting under this Agreement for such
period of time requested by the Company or as deemed appropriate by the Manager in light of
the proposed transaction; provided, however, that the foregoing restrictions
shall not prohibit (A) the Company from issuing Common Shares pursuant to (x) the Company’s
Dividend Reinvestment and Share Purchase Plan as in effect at the Execution Time, (y) any of
the Company’s employee or trustee benefit plans, including upon exercise of share options
granted
21
pursuant thereto, as such plans are in effect at the Execution Time or (z) the exercise
of contractual rights existing on the date of this Agreement by current and former holders
of partnership or other interests in the Operating Partnership which may require or permit
(in lieu of a payment in cash) the issuance of Common Shares by the Company, or the filing
by the Company under the Act of a registration statement registering the resale of Common
Shares upon conversion of Units (provided, however, that the Company shall
notify the Manager prior to filing any such registration statement), or (B) the Operating
Partnership from issuing any Units as consideration for the acquisition of real property.
(i) The Transaction Entities will not (i) take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid
for, purchase or pay any person (other than as contemplated by this Agreement or any Terms
Agreement) any compensation for soliciting purchases of the Shares.
(j) The Transaction Entities will, at any time during the term of this Agreement, as
supplemented from time to time, advise the Manager immediately after either of the
Transaction Entities shall have received notice or obtain knowledge thereof, of any
information or fact that would alter or affect any opinion, certificate, letter and other
document provided to the Manager pursuant to Section 6 herein.
(k) Upon commencement of the offering of the Shares under this Agreement (and upon the
recommencement of the offering of the Shares under this Agreement following the termination
of a suspension of sales hereunder), and each time that (i) the Registration Statement or
the Prospectus shall be amended or supplemented (other than a prospectus supplement relating
solely to the offering of securities other than the Shares), (ii) there is filed with the
Commission any document incorporated by reference into the Prospectus (other than a Current
Report on Form 8-K, unless the Manager shall otherwise reasonably request), (iii) the Shares
are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms
Agreement, or (iv) otherwise as the Manager may reasonably request (such commencement or
recommencement date and each such date referred to in (i), (ii), (iii) and (iv) above, a
“Representation Date”), the Transaction Entities shall furnish or cause to be
furnished to the Manager forthwith a certificate dated and delivered the date of such
commencement or recommencement, effectiveness of such amendment, the date of filing with the
Commission of such supplement or other document, the Time of Delivery, or promptly upon
request, as the case may be, in form satisfactory to the Manager to the effect that the
statements contained in the certificate referred to in Section 6(f) of this Agreement which
were last furnished to the Manager are true and correct at the time of such commencement or
recommencement, amendment, supplement, filing, or delivery, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate referred to in
said Section 6(f), modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such certificate.
22
(l) At each Representation Date, the Transaction Entities shall furnish or cause to be
furnished forthwith to the Manager and to counsel to the Manager a written opinion of
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Transaction Entities (“Company
Counsel”), or other counsel satisfactory to the Manager, dated and delivered the date of
commencement or recommencement, effectiveness of such amendment, the date of filing with the
Commission of such supplement or other document, the Time of Delivery, or promptly upon such
request, as the case may be, in form and substance satisfactory to the Manager, of the same
tenor as the opinions referred to in Section 6(b) of this Agreement, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion.
(m) At each Representation Date, the Transaction Entities shall furnish or cause to be
furnished forthwith to the Manager and to counsel to the Manager a written opinion of ▇▇▇▇
▇▇▇▇▇ LLP, Maryland counsel for the Company (“Maryland Counsel”), or other counsel
satisfactory to the Manager, dated and delivered the date of commencement or recommencement,
effectiveness of such amendment, the date of filing with the Commission of such supplement
or other document, the Time of Delivery, or promptly upon such request, as the case may be,
in form and substance satisfactory to the Manager, of the same tenor as the opinions
referred to in Section 6(c) of this Agreement, but modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion.
(n) At each Representation Date, the Transaction Entities shall furnish or cause to be
furnished forthwith to the Manager and to counsel to the Manager a written opinion of Wolf,
Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, tax counsel for the Transaction Entities (“Tax
Counsel”), or other counsel satisfactory to the Manager, dated and delivered the date of
commencement or recommencement, effectiveness of such amendment, the date of filing with the
Commission of such supplement or other document, the Time of Delivery, or promptly upon such
request, as the case may be, in form and substance satisfactory to the Manager, of the same
tenor as the opinions referred to in Section 6(d) of this Agreement, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion.
(o) At each Representation Date, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Manager, shall
deliver a written opinion, dated and delivered the date of commencement or recommencement,
effectiveness of such amendment, the date of filing with the Commission of such supplement
or other document, the Time of Delivery, or promptly upon such request, as the case may be,
in form and substance satisfactory to the Manager, of the same tenor as the opinions
referred to in Section 6(e) of this Agreement but modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion.
(p) Upon commencement of the offering of the Shares under this Agreement (and upon the
recommencement of the offering of the Shares under this Agreement following the termination
of a suspension of sales hereunder), and each time that (i) the Registration Statement or
the Prospectus shall be amended or supplemented to include
23
additional amended financial information, (ii) the Shares are delivered to the Manager
as principal at a Time of Delivery pursuant to a Terms Agreement, (iii) the Company files a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K, or (iv) there is filed with
the Commission any document which contains financial information (other than an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q) incorporated by reference into the
Prospectus, the Company shall cause Ernst & Young LLP (the “Accountants”), or other
independent accountants satisfactory to the Manager forthwith, to furnish the Manager a
letter, dated the date of commencement or recommencement, effectiveness of such amendment,
the date of filing of such supplement or other document with the Commission, or the Time of
Delivery, as the case may be, in form satisfactory to the Manager, of the same tenor as the
letter referred to in Section 6(g) of this Agreement but modified to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such
letter.
(q) Upon commencement of the offering of the Shares under this Agreement (and upon the
recommencement of the offering of the Shares under this Agreement following the termination
of a suspension of sales hereunder), and at each Representation Date, the Transaction
Entities will conduct a due diligence session, in form and substance satisfactory to the
Manager, which shall include representatives of the management and the independent
accountants of the Transaction Entities. The Transaction Entities shall cooperate timely
with any reasonable due diligence request from or review conducted by the Manager or its
agents from time to time in connection with the transactions contemplated by this Agreement,
including, without limitation, providing information and available documents and access to
appropriate corporate officers and the Transaction Entities’ agents during regular business
hours and at the Company’s principal offices, and timely furnishing or causing to be
furnished such certificates, letters and opinions from the Transaction Entities, their
officers and their agents, as the Manager may reasonably request.
(r) Each of the Transaction Entities consents to the Manager trading in the Common
Shares for the Manager’s own account and for the account of its clients at the same time as
sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(s) Each of the Transaction Entities will disclose in its Annual Reports on Form 10-K
and Quarterly Reports on Form 10-Q, as applicable, the number of Shares sold through the
Agent under this Agreement, the Net Proceeds to the Transaction Entities and the
compensation paid by the Transaction Entities with respect to sales of Shares pursuant to
this Agreement during the relevant quarter.
(t) If to the knowledge of either of the Transaction Entities, the conditions set forth
in Section 6(a), 6(h) or 6(j) shall not have been satisfied on the applicable Settlement
Date, the Company will offer to any person who has agreed to purchase Shares from the
Company as the result of an offer to purchase solicited by the Manager the right to refuse
to purchase and pay for such Shares.
24
(u) Each acceptance by the Company of an offer to purchase the Shares hereunder, and
each execution and delivery by the Transaction Entities of a Terms Agreement, shall be
deemed to be an affirmation to the Manager that the representations and warranties of the
Transaction Entities contained in or made pursuant to this Agreement are true and correct as
of the date of such acceptance or of such Terms Agreement as though made at and as of such
date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating to such
Shares).
(v) The Company shall ensure that there are at all times sufficient shares of Common
Shares to provide for the issuance, free of any preemptive rights, out of its authorized but
unissued Common Shares, of the maximum aggregate number of Shares authorized for issuance by
the Board pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the NYSE and to maintain
such listing.
(w) During any period when the delivery of a prospectus relating to the Shares is
required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172) to be delivered under the Act, the Transaction Entities will file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act and the regulations thereunder.
(x) The Company shall cooperate with Manager and use its reasonable efforts to permit
the Shares to be eligible for clearance and settlement through the facilities of DTC.
(y) The Transaction Entities will apply the Net Proceeds from the sale of the Shares in
the manner set forth in the Prospectus.
5. Payment of Expenses. The Transaction Entities jointly and severally agree to pay
the costs and expenses incident to the performance of its obligations under this Agreement, whether
or not the transactions contemplated hereby are consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), the Prospectus and each Issuer Free Writing
Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus,
and all amendments or supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including any stamp or
transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing
(or reproduction) and delivery of this Agreement, the closing documents pursuant to this Agreement,
any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered
in connection with the
25
offering, purchase, sale and delivery of the Shares; (v) the registration of the Shares under
the Exchange Act and the listing of the Shares on the NYSE; (vi) any registration or qualification
of the Shares for offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for the Manager relating to
such registration and qualification); (vii) any filings required to be made with the Financial
Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable
fees and expenses of counsel for the Manager relating to such filings); (viii) the transportation
and other expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the
Transaction Entities’ accountants and the fees and expenses of counsel (including local and special
counsel) for the Transaction Entities; and (x) all other costs and expenses incident to the
performance by each of the Transaction Entities of its obligations hereunder.
6. Conditions to the Obligations of the Manager. The obligations of the Manager under
this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations
and warranties on the part of the Transaction Entities contained herein as of the Execution Time,
each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery,
(ii) to the performance by each of the Transaction Entities of its obligations hereunder and (iii)
the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with
the Commission have been filed in the manner and within the time period required by
Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of
the Registration Statement or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the
Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of
such date and addressed to the Manager, 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, the District
of Columbia, Florida, Illinois, Maryland, Michigan, Minnesota, New Jersey, North
Carolina, South Carolina, Texas, Virginia and Wisconsin, 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 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
26
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
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 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 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 Disclosure
Package and the Prospectus.
(vi) This Agreement and any applicable Terms Agreement have been (i) duly and
validly authorized, executed and delivered by the Operating Partnership and (ii)
duly executed and delivered by the Company.
(vii) The execution, delivery and performance of this Agreement and any Terms
Agreement by each of the Transaction Entities, the issue and sale of the Shares
being delivered at the Time of Delivery by the Company 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
27
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 Shares under the 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
Shares by the Manager, 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 and any Terms
Agreement by the Transaction Entities, the consummation of the transactions
contemplated hereby and thereby, and the issuance, sale and delivery of the Shares
to the Manager.
(viii) The execution, delivery and performance of this Agreement 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.
(ix) Except as set forth in the Disclosure Package 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 Shares pursuant to the Company’s declaration of trust or
its bylaws, as amended to the date hereof, or, to the knowledge of such counsel,
any agreement or other instrument to which the Company is a party.
(x) 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 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 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 Disclosure Package 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.
28
(xi) The Shares shall have been approved for listing, subject only to notice
of issuance, on the NYSE.
(xii) 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 Disclosure Package 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.
(xiii) To the knowledge of such counsel, there are no contracts or other
documents which are required to be described in the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement by the Act which
have not been described in the Disclosure Package and the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by reference as
permitted by the rules and regulations under the Act.
(xiv) 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 under the Act.
(xv) Each of the documents incorporated or deemed to be incorporated by
reference in the 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.
(xvi) 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 Act as of
the date and time specified in such opinion.
(xvii) Any required filing of the Base Prospectus and the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by the subparagraph of Rule 424(b) of the rules
and regulations under the Act.
(xviii) 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
29
relating to the Shares for purposes of the liability of the Manager under
Section 11 of the Securities Act in connection with the sale of the Shares, the
Disclosure Package as of the Execution Time and the Prospectus as of its date
(except as to the financial statements, 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 Act.
(xix) The statements contained in the Prospectus under the captions “Risk
Factors” and “Securities Offered by this Prospectus,” insofar as those statements
are descriptions of contracts, agreements or other legal documents, or describe
federal statutes, rules and regulations, and except to the extent such statements
are statistics or calculations, constitute a fair summary thereof.
In rendering such opinion, such counsel may state that its opinion is limited to matters
governed by the federal laws of the United States of America and the laws of the
Commonwealth of Pennsylvania. Such counsel shall also have furnished to the Manager, on
every date specified in Section 4(l) of this Agreement, a written statement, addressed
to the Manager and dated as of such date, in form and substance satisfactory to the
Manager, to the effect that (x) such counsel has acted as counsel to the Transaction
Entities in connection with the preparation of the Disclosure Package and the Prospectus
and has reviewed the Registration Statement, and (y) subject to the foregoing, such
counsel confirms that, on the basis of the information gained in the course of
performing the services referred to therein, nothing came to such counsel’s attention
that caused such counsel to believe that (i) the Registration Statement, on the
effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the
Registration Statement relating to the Shares for purposes of the liability of the
Manager under Section 11 of the Act in connection with the sale of the Shares, 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
Disclosure Package, as amended or supplemented at the Execution Time or at any
applicable date related to the delivery of such opinion, 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, and as of the date of such opinion,
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, 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
Disclosure Package and 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 included or incorporated by reference in, or omitted
from, the Registration Statement, the Disclosure Package or the Prospectus, and (c)
express any belief with respect to any statement in a document incorporated by reference
in the Registration Statement, the Disclosure Package or the Prospectus, to the extent
that, pursuant to Rule 412 under
30
the Securities Act, such statement is deemed modified or superseded in the Registration
Statement, the Disclosure Package or the Prospectus, as the case may be, at the
respective times as of which the advisements set forth in this paragraph are provided.
References to the Prospectus in this paragraph (b) shall also include any supplements
thereto at the Settlement Date.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the
Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of
such date and addressed to the Manager, to the effect that:
(i) The Company has been duly formed and is validly existing as a real estate
investment trust in good standing under and by virtue of the laws of the State of
Maryland, and has all trust power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged as described in the
Registration Statement, the Disclosure Package and the Prospectus, and to enter
into and perform its obligations under this Agreement and any Terms Agreement.
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and the Shares have been duly and validly authorized and, when issued
and delivered to and paid for by the Manager pursuant to this Agreement and any
Terms Agreement, will be fully paid and non-assessable; and the Shares conform to
the description of the Common Shares contained in, or incorporated by reference
in, the Prospectus.
(iii) This Agreement and any applicable Terms Agreement have been duly and
validly authorized, executed and delivered by the Company.
(iv) The execution, delivery and performance of this Agreement and any
applicable Terms Agreement by the Company, the issue and sale of the Shares by the
Company and the consummation of the transactions contemplated by this Agreement
and any applicable Terms Agreement (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 and any
applicable Terms Agreement by the Company, the issue and sale of the Shares by the
Company and the consummation of the transactions contemplated by this Agreement
and any applicable Terms Agreement will not conflict with or result in any
violation of the provisions of the declaration of trust or bylaws of the Company.
31
(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.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager,
on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such
date and addressed to the Manager, and in form and substance satisfactory to the Manager,
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 Manager may reasonably require. In addition, such opinion shall state that the
statements contained in the Disclosure Package and the Prospectus under the caption “Federal
Income Tax Considerations with Respect to the Trust and Operating Partnership,” and in the
Prospectus Supplement under the caption “Federal Income Tax Consequences”, 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.
(e) The Manager shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager,
on every date specified in Section 4(o) of this Agreement, such opinion or opinions, dated
as of such date and addressed to the Manager, with respect to the issuance and sale of the
Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with
any supplement thereto) and other related matters as the Manager may reasonably require, and
the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on every
date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by
the Chairman of the Board, Chief Executive Officer or the President and the principal
financial or accounting officer of the Company, dated as of such date, to the effect that
the signers of such certificate have carefully examined the Registration Statement, the
Disclosure Package and the Prospectus and any supplements or amendments thereto and this
Agreement and that:
(i) the representations and warranties of the Transaction Entities in this
Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Transaction Entities has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;
32
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the Transaction Entities,
threatened;
(iii) since the date of the most recent financial statements included in the
Disclosure Package, there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus; and
(iv) they have carefully examined the Disclosure Package and the Prospectus
and, in their opinion (A) as of each Applicable Time, the 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 each Applicable Time no event
has occurred which should have been set forth in a supplement or amendment to the
Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to
the Manager, on every date specified in Section 4(p) hereof and to the extent requested by
the Manager in connection with any offering of the Shares, letters (which may refer to
letters previously delivered to the Manager), dated as of such date, in form and substance
satisfactory to the Manager, which letters shall cover, without limitation, the various
financial statements and disclosures contained or incorporated by reference in the
Registration Statement, the 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.
References to the Prospectus in this paragraph (g) include any supplement thereto at
the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein,
there shall not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (g) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Manager, so material and adverse
33
as to make it impractical or inadvisable to proceed with the offering or delivery of
the Shares as contemplated by the Registration Statement (exclusive of any amendment
thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the
Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if
applicable, shall have updated the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement
or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager,
there shall not have been any decrease in the rating of any of the Company’s or the
Operating Partnership’s debt securities by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the
NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Each time that the Company is obligated to make a filing in accordance with Section
4(d)(ii) of this Agreement, the Transaction Entities shall furnish or cause to be furnished
to the Manager forthwith a certificate of the Company’s Chief Financial Officer, dated and
delivered the date of filing with the Commission of such prospectus supplement or Current
Report on Form 8-K, to the effect that (i) the accounting records upon which the applicable
financial information contained in the Earnings Release is based have been prepared in
conformity with U.S. generally accepted accounting principles and (ii) nothing came to such
officer’s attention since the issuance of the Earnings Release that caused such officer to
believe that the applicable financial information contained in the Earnings Release was
inaccurate in incomplete in any material respect or failed to fairly present, in all
material respects, the financial condition, results of operations and cash flows of the
Transaction Entities as of, and for, the periods presented in the Earnings Release.
(n) Prior to each Settlement Date and Time of Delivery, as applicable, the Transaction
Entities shall have furnished to the Manager such further information, certificates and
documents as the Manager may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance
34
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager
hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as
applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, on
each such date as provided in this Agreement.
7. Indemnification and Contribution.
(a) The Transaction Entities agree to indemnify and hold harmless the Manager, the
directors, officers, employees and agents of the Manager and each person who controls the
Manager within the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares as originally filed or in any amendment
thereof, or in the Base Prospectus, the Prospectus Supplement, the Prospectus, any Issuer
Free Writing Prospectus, or in any amendment thereof or supplement thereto, 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 agrees
to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Transaction
Entities will 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 any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Transaction
Entities may otherwise have.
(b) The Manager agrees to indemnify and hold harmless the Transaction Entities, each of
its directors or trustees, each of its officers who signs the Registration Statement, and
each person who controls the Transaction Entities within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Transaction
Entities to the Manager, but only with reference to written information relating to the
Manager furnished to the Company by the Manager specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Manager may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 7, notify the indemnifying
party in writing of the commencement thereof; but the failure so to
35
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Transaction Entities and the Manager agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively
“Losses”) to which the Transaction Entities and the Manager may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Transaction
Entities on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any
amount in excess of the underwriting discount or commission, as the case may be, applicable
to the Shares purchased by the Manager hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Transaction Entities and
the Manager severally shall contribute 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 of the Manager on the other in connection with the statements or omissions
36
which resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Transaction Entities shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received
by the Manager shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as determined by this Agreement or any applicable Terms Agreement.
Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Transaction Entities on the one
hand or the Manager on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or
omission. The Transaction Entities and the Manager agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls the Manager within the meaning of
either the Act or the Exchange Act and each director, officer, employee and agent of the
Manager shall have the same rights to contribution as the Manager, and each person who
controls the Transaction Entities within the meaning of either the Act or the Exchange Act,
each officer of the Transaction Entities who shall have signed the Registration Statement
and each trustee of the Company shall have the same rights to contribution as the
Transaction Entities, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Termination.
(a) The Transaction Entities shall have the right, by giving written notice as hereinafter
specified, to terminate the provisions of this Agreement relating to the solicitation of offers to
purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that (i) if Shares have been sold through the
Manager for the Company, then Section 4(s) shall remain in full force and effect, (ii) with respect
to any pending sale, through the Manager for the Company, the obligations of the Transaction
Entities, including in respect of compensation of the Manager, shall remain in full force and
effect notwithstanding the termination and (iii) the provisions of Sections 5, 7, 9, 10, 12 and 14
of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) The Manager shall have the right, by giving written notice as hereinafter specified, to
terminate the provisions of this Agreement relating to the solicitation of offers to purchase the
Shares in its sole discretion at any time. Any such termination shall be without liability of any
party to any other party except that the provisions of Sections 5, 7, 9, 10, 12 and 14 of this
Agreement shall remain in full force and effect notwithstanding such termination.
(c) This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 8(a) or (b) above or otherwise by mutual agreement of the parties; provided
37
that any such termination by mutual agreement shall in all cases be deemed to provide that
Sections 5, 7 and 9 shall remain in full force and effect.
(d) Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided that such termination shall not be effective until the close of
business on the date of receipt of such notice by the Manager or the Transaction Entities, as the
case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for
any sale of the Shares, such sale shall settle in accordance with the provisions of Section
3(a)(vii) of this Agreement.
(e) In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the
obligations of the Manager pursuant to such Terms Agreement shall be subject to termination, in the
absolute discretion of the Manager, by notice given to the Company prior to the Time of Delivery
relating to such Shares, if at any time prior to such delivery and payment (i) trading in the
Company’s Common Shares shall have been suspended by the Commission or the NYSE or trading in
securities generally on the NYSE or the American Stock Exchange or in the over-the-counter market
shall have been suspended or limited or minimum prices shall have been established on such exchange
or such market, (ii) a banking moratorium shall have been declared either 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 or (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a national emergency
or war, or (iv) there shall have occurred any other calamity or crisis in the United States or
elsewhere the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
9. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of each of the Transaction Entities
or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by the Manager or the Transaction
Entities or any of the officers, directors, employees, agents or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Shares. The provisions of
Sections 5 and 7 hereof shall survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Manager, will be mailed, delivered or telefaxed to the Citigroup
Global Markets Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General
Counsel, Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
the Company, at Liberty Property Trust, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
11. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
38
12. No Fiduciary Duty. Each of the Transaction Entities hereby acknowledges and agrees
that (a) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length
commercial transaction between the Transaction Entities, on the one hand, and the Manager and any
affiliate through which it may be acting, on the other, (b) the Manager is acting solely as sales
agent and/or principal in connection with the purchase and sale of the Company’s securities and not
as a fiduciary of the Transaction Entities and (c) the Transaction Entities’ engagement of the
Manager in connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, each of the Transaction
Entities agrees that it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether the Manager has advised or is currently advising the Transaction
Entities on related or other matters). Each of the Transaction Entities agrees that it will not
claim that the Manager has rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Transaction Entities, in connection with such transaction or the
process leading thereto.
13. Integration. This Agreement and any Terms Agreement supersede all prior agreements
and understandings (whether written or oral) between the Transaction Entities and the Manager with
respect to the subject matter hereof.
14. Applicable Law. This Agreement and any Terms Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to contracts made and to
be performed within the State of New York.
15. Waiver of Jury Trial. Each of the Transaction Entities 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, any Terms Agreement or the transactions
contemplated hereby or thereby.
16. Counterparts. This Agreement and any Terms Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement.
17. Headings. The section headings used in this Agreement and any Terms Agreement are
for convenience only and shall not affect the construction hereof.
18. Definitions. The terms that follow, when used in this Agreement and any Terms
Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Applicable Time” shall mean, with respect to any Shares, the time of sale of
such Shares pursuant to this Agreement or any relevant Terms Agreement.
“Base Prospectus” shall mean the base prospectus referred to in Section 2(a)
above contained in the Registration Statement at the Execution Time.
39
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Prospectus
Supplement, (iii) the most recently filed prospectus supplement (if any) that was filed
pursuant to Rule 424(b) after the Execution Time, (iv) the Issuer Free Writing Prospectuses,
if any, identified in Schedule I hereto, (v) the public offering price of Shares sold at the
relevant Applicable Time and (vi) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement
and any post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed
and delivered by the parties hereto.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in
Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus,
as defined in Rule 433.
“Prospectus” shall mean the Base Prospectus, as supplemented by the Prospectus
Supplement and the most recently filed prospectus supplement relating to the Shares (if any)
that was filed pursuant to Rule 424(b) after the Execution Time.
“Prospectus Supplement” shall mean the most recent prospectus supplement
relating to the Shares that was first filed pursuant to Rule 424(b) at or prior to the
Execution Time.
“Registration Statement” shall mean the registration statement referred to in
Section 2(a) above, including exhibits and financial statements and any prospectus
supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto becomes effective,
shall also mean such registration statement as so amended.
“Rule 153”, “Rule 158”, “Rule 163”, “Rule 164”,
“Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B” “Rule 433”, “Rule 456” and “Rule 457” refer to such rules
under the Act.
40
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Transaction Entities and the Manager.
| Very truly yours, LIBERTY PROPERTY TRUST |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Chairman, President and CEO | |||
| LIBERTY PROPERTY LIMITED PARTNERSHIP By: Liberty Property Trust, its general partner |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Chairman, President and CEO | |||
| The foregoing Agreement is hereby confirmed and accepted as of the date first written above. Citigroup Global Markets Inc. | ||||
By:
|
Citigroup Global Markets Inc. | |||
By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: Director | ||||
SCHEDULE I
Schedule of Free Writing Prospectuses included in the Disclosure Package
SCHEDULE II
(i) Jurisdictions of Due Qualification and Good Standings for Liberty Property Trust:
Maryland
Florida
Michigan
New Jersey
Pennsylvania
South Carolina
Virginia
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
District of Columbia
Florida
Illinois
Maryland
Michigan
Pennsylvania
Minnesota
New Jersey
North Carolina
South Carolina
Texas
Virginia
Wisconsin
SCHEDULE III
L/S 26th Street North, LLC, a Delaware limited liability company
L/S 26th Street North, LP, a Delaware limited partnership
L/S 26th Street North, LP, a Delaware limited partnership
| [Form of Terms Agreement] | ANNEX I |
LIBERTY PROPERTY TRUST
Common Shares of Beneficial Interest
TERMS AGREEMENT
, 20___
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Dear Sirs:
Liberty Property Trust (the “Company”) proposes, subject to the terms and conditions
stated herein and in the Equity Distribution Agreement, dated December 18, 2008 (the “Equity
Distribution Agreement”), between the Company, Liberty Property Limited Partnership, a
Pennsylvania limited partnership (the “Operating Partnership” and, together with the
Company, the “Transaction Entities”), and Citigroup Global Markets Inc., to issue and sell
to Citigroup Global Markets Inc. the securities specified in Schedule I hereto (the “Purchased
Shares”) [, and solely for the purpose of covering over-allotments, to grant to Citigroup
Global Markets Inc. the option to purchase the additional securities specified in the Schedule I
hereto (the “Additional Shares”)]. [Include only if Citigroup Global Markets Inc. has an
over-allotment option]
[Citigroup Global Markets Inc. shall have the right to purchase from the Company all or a
portion of the Additional Shares as may be necessary to cover over-allotments made in connection
with the offering of the Purchased Shares, at the same purchase price per share to be paid by
Citigroup Global Markets Inc. to the Company for the Purchased Shares. This option may be
exercised by Citigroup Global Markets Inc. at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Company. Such notice shall set
forth the aggregate number of shares of Additional Shares as to which the option is being
exercised, and the date and time when the Additional Shares are to be delivered (such date and time
being herein referred to as the “Option Closing Date”); provided, however,
that the Option Closing Date shall not be earlier than the Time of Delivery (as set forth in the
Schedule I hereto) nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date on which the option
shall have been exercised. Payment of the purchase price for the Additional Shares shall be made
at the Option Closing Date in the same manner and at the same office as the payment for the
Purchased Shares.] [Include only if Citigroup Global Markets Inc. has an over-allotment option]
Each of the provisions of the Equity Distribution Agreement not specifically related to the
solicitation by Citigroup Global Markets Inc., as agent of the Transaction Entities, of offers to
purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if such provisions had been set forth in full
herein. Each of the representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement [and] [,] the Time of Delivery
[and any Option Closing Date] [Include only if Citigroup Global Markets Inc. has an
over-allotment option], except that each representation and warranty in Section 2 of the Equity
Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed
to be a representation and warranty as of the date of the Equity Distribution Agreement in relation
to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement
[and] [,] the Time of Delivery [and any Option Closing Date] [Include only if Citigroup Global
Markets Inc. has an over-allotment option] in relation to the Prospectus as amended and
supplemented to relate to the Purchased Shares.
An amendment to the Registration Statement (as defined in the Equity Distribution Agreement),
or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the
Additional Shares] [Include only if Citigroup Global Markets Inc. has an over-allotment option], in
the form heretofore delivered to the Manager is now proposed to be filed with the Securities and
Exchange Commission.
Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement
which are incorporated herein by reference, the Company agrees to issue and sell to Citigroup
Global Markets Inc. and the latter agrees to purchase from the Company the number of shares of the
Purchased Shares at the time and place and at the purchase price set forth in the Schedule I
hereto.
If the foregoing is in accordance with your understanding, please sign and return to us a
counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity
Distribution Agreement incorporated herein by reference, shall constitute a binding agreement
between the Citigroup Global Markets Inc. and the Transaction Entities.
| LIBERTY PROPERTY TRUST |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| LIBERTY PROPERTY LIMITED PARTNERSHIP By: Liberty Property Trust, its general partner |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ACCEPTED as of the date first written above. | ||||
| Citigroup Global Markets Inc. | ||||
By:
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| Title: | ||||
| [Form of Terms Agreement] | Schedule I to the Terms Agreement |
Title of Purchased Shares [and Additional Shares]:
Common Shares, par value $0.001 per share
Number of Shares of Purchased Shares:
[Number of Shares of Additional Shares:]
[Price to Public:]
Purchase Price by Citigroup Global Markets Inc.:
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in same day funds.
Method of Delivery:
Free delivery of the Shares to the Manager’s account at The Depository Trust
Company in return for payment of the purchase price.
Time of Delivery:
Closing Location:
Documents to be Delivered:
The following documents referred to in the Equity Distribution Agreement
shall be delivered as a condition to the closing at the Time of Delivery [and
on any Option Closing Date]:
(1) The opinion referred to in Section 4(l).
(2) The opinion referred to in Section 4(m).
(3) The opinion referred to in Section 4(n).
(4) The opinion referred to in Section 4(o)
(5) The accountants’ letter referred to in Section 4(p).
(6) The officers’ certificate referred to in Section 4(k).
(7) Such other documents as the Manager shall reasonably request.