Post-Effective Amendment to an S-3ASR or F-3ASR Filing Table of Contents
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2: EX-4.3 Instrument Defining the Rights of Security Holders HTML 376K
3: EX-23.1 Consent of Experts or Counsel HTML 7K
4: EX-23.2 Consent of Experts or Counsel HTML 7K
5: EX-25.1 Statement re: Eligibility of Trustee -- Form T-1|2 HTML 55K
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Liberty Property Trust
Liberty Property Limited Partnership
(Exact name of each Registrant as specified in its governing documents)
C:
C:C:
Maryland
23-7768996
Pennsylvania
23-2766549
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization
Identification Number
of respective Registrant)
of respective Registrant)
C:
500 Chesterfield Parkway, Malvern, Pennsylvania19355-1460
(610) 648-1700
(Address, including zip code, and telephone number, including
area code, of Registrants’ principal executive offices)
James J. Bowes, Esquire
500 Chesterfield Parkway Malvern, Pennsylvania19355-1460
(610) 648-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of the proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box: o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box:
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering: o
If this Form is a post effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box: þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box: o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,”“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer þ
Accelerated filer o
Non-accelerated filer o
Smaller reporting company o
(Do not check if a smaller reporting company)
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 relates to the Registrants’ Automatic Shelf Registration
Statement on Form S-3 (File No. 333-150737) (the “Registration Statement”), filed by the
Registrants on May 8, 2008. The Registrants are filing this Post-Effective Amendment No. 1 pursuant
to Rule 462(e) under the Securities Act of 1933, as amended, solely to file (i) a Senior
Indenture, dated as of September 22, 2010, which designates U.S. Bank National Association as
trustee (the “Indenture”) and (ii) a Statement of Eligibility on Form T-1 of U.S. Bank National
Association to act as trustee under the Indenture. U.S. Bank National Association shall act as
trustee with respect to any series of debt securities issued under the Registration Statement for
which it is designated as trustee, and identified as such in the applicable prospectus supplement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION.
The following table
sets forth the costs and expenses of the sale and distribution of the
securities being registered, all of which are being borne by the Company. Such
costs and expenses do not include amounts that may be incurred upon the
issuance of certain types of securities represented hereunder.
Securities and Exchange
Commission registration fee
$
46,000
*
Printing and engraving
150,000
Blue Sky fees and
expenses
25,000
Rating Agency fees and
expenses
1,579,500
Transfer Agent, Depositary
and Trustee fees and expenses
25,000
Legal and Accounting fees
and expenses
500,000
Total
$
2,325,000
* Unutilized filing fees of
(i) $24,740 were previously paid with respect to $210,220,450 aggregate
principal amount of Securities not yet sold which were previously registered
under the Company’s Registration Statement on Form S-3 filed June 6,2005 (No. 333-125571) and (ii) $172,870 were previously paid with respect
to $586,054,480 aggregate principal amount of Securities not yet sold which
were previously registered under the Company’s Registration Statement on
Form S-3 filed December 24, 1997 (No. 333-43267), as indicated on the
facing page of this Registration Statement on Form S-3, and will be applied to
any filing fees applicable in connection with the sale of securities pursuant
to this Registration Statement on Form S-3. The payment of any additional
filing fees is deferred pursuant to Rule 456(b) and 457(r).
All expenses are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS
AND OFFICERS.
The Trust
Under
Section 8-301(15) and 2-418 of the Maryland General Corporation Law, as
amended, the Trust has the power to indemnify trustees and officers under
certain prescribed circumstances (including when authorized by a majority vote
of a quorum of disinterested trustees, by a majority vote of a committee of two
or more disinterested trustees, by independent legal counsel, or by
shareholders) and, subject to certain limitations (including, unless otherwise
determined by the proper court, when such trustee or officer is adjudged liable
to the Trust), against certain costs and expenses, including attorneys’
fees actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his or her being a trustee or officer of
the Trust if it is determined that he or she acted in accordance with the
applicable standard of conduct set forth in such statutory provisions including
when such trustee or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the Trust’s best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Article XII of
the Trust’s By-laws provides that the Trust has the power to indemnify
trustees, officers and shareholders of the Trust against expenses (including
legal fees) reasonably incurred by any of them in connection with the
successful defense of a proceeding to which such person was made a party by
reason of such status, whether the success of such defense was on the merits or
otherwise, to the maximum extent permitted by law. The trustees, officers and
shareholders of the Trust also have the right, in certain circumstances, to be
paid in advance for expenses incurred in connection with any such proceedings.
The Operating Partnership
Section 8570 of
the Pennsylvania Revised Uniform Limited Partnership Act authorizes the
Operating Partnership to indemnify any partner or other person from and against
any and all claims and demands whatsoever, unless it is determined by a court
that the act or omission giving rise to the claim of indemnification
constituted willful misconduct or recklessness.
Reference is made to
Section 7.8 of the Operating Partnership’s Second Restated and
Amended Limited Partnership Agreement, as amended to the date hereof (the
“Partnership Agreement”), a copy of which is filed as
Exhibit 3.1.2 to the Registration Statement, which provides for
indemnification of the general partners and others. Section 7.8(d) of the
Partnership Agreement authorizes the Operating Partnership to purchase and
maintain insurance on behalf of the general partner and others against any
liability that may be asserted against or expenses that may be incurred by such
person regardless of whether the Operating Partnership would have the power to
indemnify such person against liability under the Partnership Agreement.
Reference is made to
Section 7.9 of the Partnership Agreement which limits the general
partner’s liability for monetary or other damages.
ITEM 16. EXHIBITS.
Item
Description
†1
Form of Underwriting Agreement. (Incorporated by reference to Exhibit 1 filed
with the Registrants’ Registration Statement on Form S-3 (Commission File No.
333-43267).)
†4.1
Senior Indenture, dated October 24, 1997, by and between the Operating
Partnership and The Bank of New York Trust Company, N.A. (as successor to J.P. Morgan
Trust Company, National Association and The First National Bank of Chicago).
(Incorporated by reference to Exhibit 10.3 filed with the Registrants’ Quarterly Report
on Form 10-Q for the fiscal quarter ended September 30, 1997.)
†4.2
Form of Subordinated Indenture by and between the Operating Partnership and The
Bank of New York Trust Company, N.A. (as successor to J.P. Morgan Trust Company,
National Association and The First National Bank of Chicago). (Incorporated by
reference to Exhibit 10.6 filed with the Registrants’ Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1997.)
4.3
Senior Indenture, dated
September 22, 2010, by and between Liberty Property
Limited Partnership and U.S. Bank, National Association.
Statement Re: Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Share Dividends. (Incorporated by reference to
Exhibit 12.1 filed with the Registrants’ Current Report on
Form 8-K filed on September 17, 2010.)
23.1
Consent of Ernst & Young LLP (Liberty Property Trust).
23.2
Consent of Ernst & Young LLP (Liberty Property Limited Partnership).
*23.3
Consent of Saul Ewing LLP (included in Exhibit 5.1).
*23.4
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.2).
*23.5
Consent of Wolf Block LLP (included in Exhibit 8).
25.1
Statement of Eligibility on Form T-1 of U.S. Bank, National Association to act
as trustee under the Indenture
*
Previously filed with the
Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on May 8, 2008.
†
Incorporated herein
by reference as above indicated.
ITEM 17. UNDERTAKINGS.
(a) The
undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however,
that:
(A) Paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the Registration
Statement is on Form S-8 (§239.16b of this chapter), and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are
incorporated by reference in the Registration Statement; and
(B) Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 (§239.13 of this chapter) or Form
F-3 (§239.33 of this chapter) and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
(§230.424(b) of this chapter) that is part of the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the Registration Statement as of the date the filed
prospectus was deemed part of and included in the Registration Statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the
Registration Statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the Registration Statement relating to the securities in the Registration
Statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is a part of the Registration Statement or made in a document
incorporated or deemed incorporated by reference into the Registration
Statement or prospectus that is a part of the Registration Statement will, as
to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the Registration Statement
or prospectus that was part of the Registration Statement or made in any such
document immediately prior to such effective date; or
(ii) If the Registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the Registration Statement as of
the date it is first used after effectiveness. Provided, however, that
no statement made in a registration statement or prospectus that is part of the
Registration Statement or prospectus that is part of the Registration Statement
will, as to a purchaser with a time of contract of sale prior to such first
use, supersede or modify any statement that was made in the Registration
Statement or prospectus that was part of the Registration Statement or made in
any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The
undersigned Registrants undertake that in a primary offering of securities of
the undersigned Registrants pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrants will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrants relating to the offering required to be filed pursuant
to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrants or used or referred to
by the undersigned Registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned
Registrants or their securities provided by or on behalf of the undersigned
Registrants; and
(iv) Any other communication that is an offer in the offering
made by the undersigned Registrants to the purchaser.
(b) The
undersigned Registrants hereby undertakes that, for the purpose of determining
any liability under the Securities Act of 1933, each filing of the
Registrants’ annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to trustees, officers or controlling persons of the Registrants
pursuant to the foregoing provisions, or otherwise, the Registrants have been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a trustee, officer or controlling person of either Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The
undersigned Registrants hereby undertake to file an application for the purpose
of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 as amended (the
“TIA”) in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the TIA.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Malvern, Commonwealth of Pennsylvania, on the 22nd day of September, 2010.
Chairman of the Board of Trustees,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective
Amendment No. 1 to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Malvern, Commonwealth of Pennsylvania, on the 22nd day of September, 2010.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By:
Liberty Property Trust, as its sole general partner
Chairman of the Board of Trustees,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective
Amendment No. 1 to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
