Underwriting Agreement (2006)Full Document 

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Liberty Property Limited Partnership
(a Pennsylvania Limited Partnership)
$300,000,000 5.500% SENIOR NOTES DUE 2016
 
Underwriting Agreement
December 13, 2006
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
   As Representatives of the several Underwriters
   Named in Schedule I hereto
Ladies and Gentlemen:
     Liberty Property Trust, a Maryland real estate investment trust (the “Company”), and Liberty Property Limited Partnership, a Pennsylvania limited partnership (the “Operating Partnership” and, together with the Company, the “Transaction Entities”), each wishes to confirm as follows its agreement (this “Agreement”) with Banc of America Securities LLC, Goldman, Sachs & Co. and J.P. Morgan Securities Inc. (the “Representatives”), as representatives of the Underwriters named in Schedule I hereto (the “Underwriters”), with respect to the sale by the Operating Partnership and the purchase by the Underwriters of an aggregate of $300,000,000 principal amount of the 5.500% Senior Notes due 2016 of the Operating Partnership (the “Securities”).
     Capitalized terms used but not otherwise defined herein shall have the meanings given to those terms in the Prospectus (as herein defined).
1.   Each of the Transaction Entities, jointly and severally, represents and warrants to, and agrees with, each of the Underwriters that:
  (a)   A registration statement on Form S-3 (No. 333-125571) (the “2005 Registration Statement”), which also constitutes a post-effective amendment to a previous registration statement (No. 333-120692) (the “2004 Registration Statement”) pursuant to Rule 429 of the Securities Act of 1933, as amended (the “Securities Act”), and any amendments thereto, with respect to one or more series of debt securities of the Operating Partnership has (i) been prepared by the Company and the Operating Partnership in conformity with the requirements of the Securities Act and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder, (ii) been filed with the Commission under the Securities Act not earlier than three years prior to the date hereof, (iii) become effective under the Securities Act, and the indenture, dated as of October 24, 1997, as supplemented to the date hereof (the “Indenture”), between the Operating Partnership and The Bank of New York Trust Company, N.A. (as successor to J.P. Morgan Trust

 


 

      Company, National Association, as successor to Bank One Trust Company, N.A., as successor to The First National Bank of Chicago), as trustee (the “Trustee”) has been qualified under the Trust Indenture Act of 1939 (the “Trust Indenture Act”), and the Ninth Supplemental Indenture, to be dated as of the Time of Delivery (as herein defined), between the Operating Partnership and the Trustee (the “Supplemental Indenture”), pursuant to which the Securities shall be issued, will be qualified under the Trust Indenture Act, and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Transaction Entities. The base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as herein defined), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report filed by a Transaction Entity pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”.
 
  (b)   No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied as to form in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements

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      therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Transaction Entities by an Underwriter through the Representatives expressly for use therein.
 
  (c)   For the purposes of this Agreement, the “Applicable Time” is 2:44 p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus together with the final term sheet prepared and filed by the Transaction Entities pursuant to Section 5(a) hereof (and constituting an Issuer Free Writing Prospectus), taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(b)(ii) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; and each Issuer Free Writing Prospectus listed on Schedule ll(b)(ii), as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or any listed Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Transaction Entities by an Underwriter through the Representatives expressly for use therein.
 
  (d)   The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Pricing Prospectus and the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b)(i) hereto.
 
  (e)   The Registration Statement complies as to form, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will comply as to form, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement

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      thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Transaction Entities by an Underwriter through the Representatives expressly for use therein.
 
  (f)   The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the State of Maryland, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (each such jurisdiction as provided in Schedule II(a) hereto), and has all power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. None of the subsidiaries of the Company (other than the Operating Partnership) is a “significant subsidiary,” as such term is defined in Rule 405 under the Securities Act. Except as described in the Pricing Prospectus and the Prospectus and other than the Property Affiliates (as defined herein), the entities listed in Schedule IV hereto and the Operating Partnership, Development Corp. (as defined herein), Development-II (as defined herein) and SP Trust (as defined herein), the Company owns no direct or indirect equity interest in any entity.
 
  (g)   The Company has an authorized capitalization as set forth in the Pricing Prospectus and the Prospectus, and all of the issued shares of beneficial interest of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Pricing Prospectus and the Prospectus. Except as disclosed in the Pricing Prospectus and the Prospectus and with respect to the Company’s Amended and Restated Share Incentive Plan (the “Share Incentive Plan”), the Company’s Employee Stock Purchase Plan and the Company’s Dividend Reinvestment and Share Purchase Plan, no shares of beneficial interest of the Company are reserved for any purpose and except as disclosed in the Pricing Prospectus and the Prospectus and the equity interests in the Operating Partnership (“Units”) and options to purchase shares of beneficial interest issued pursuant to the Share Incentive Plan, 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.
 
  (h)   The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the Commonwealth of Pennsylvania, is duly qualified to do business and is in good standing as a foreign limited partnership in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (each such jurisdiction as provided in Schedule II(a) hereto), and has all partnership power and authority necessary to own or hold any real property or improvements thereon owned or held by the Operating Partnership or its subsidiaries (each individually, a “Property,” and collectively, the “Properties”), to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company is the sole general partner of the Operating Partnership. The limited partnership agreement of the Operating Partnership, as amended (the “Operating Partnership Agreement”), is in full force

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      and effect, and the aggregate percentage interests of the Company and the limited partners in the Operating Partnership are as set forth in the Pricing Prospectus and the Prospectus. The owner’s equity of the Operating Partnership is as described in the Pricing Prospectus and the Prospectus. All of the Units have been duly and validly authorized and issued, were issued in accordance with the applicable terms of the Operating Partnership Agreement and the certificate of limited partnership of the Operating Partnership and, to the extent that such interests are owned by the Company, are owned by the Company free and clear of all liens, encumbrances, equities or claims.
 
  (i)   Liberty Property Development Corp. (“Development Corp.”) has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all corporate power and authority necessary to own or hold its properties and to conduct the business in which it is engaged. All of the issued and outstanding capital stock of Development Corp. has been duly and validly authorized and issued and is fully paid and non-assessable, and has been offered and sold in compliance with all applicable laws (including, without limitation, federal or state securities laws). All of the capital stock of Development Corp. owned by the Operating Partnership, as described in the Pricing Prospectus and the Prospectus, is owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim, restriction or equities. No shares of capital stock of Development Corp. are reserved for any purpose, and there are no outstanding securities convertible into or exchangeable for any capital stock of Development Corp., and there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or to subscribe for shares of such capital stock or any other securities of Development Corp.

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