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Deal in Focus

Liberty Bonds on Deadline

The New York Liberty Development Corp. plans to begin marketing $2.59 billion of escrow bonds tomorrow to meet a year-end deadline to sell Liberty bonds for redevelopment of the World Trade Center site.

The authorization for the Liberty Bonds expires on Dec. 31, and although it could be extended by Congress, the issuer and developer Silverstein Properties Inc. aren't taking any chances.

"We're doing it this way because we don't want to lose the tax exemption on this deal because it's critically important to the financing of this project," said Frances Walton, treasurer of the LDC. "We didn't want to risk it not being extended."

The developer plans to eventually use the bond proceeds to finance construction of three office towers at the World Trade Center site, but delays, ongoing arbitration, and the economic downturn have made it impossible for the proceeds to be used straight away.

In the interim, the issuer is marketing mandatory tender bonds that all can be called on Oct. 12, 2010, according to the preliminary official statement. This effectively turns the bonds into short-term debt. The tender would allow for the debt to be remarketed as variable or fixed bonds with proceeds used for construction or as new escrow bonds if necessary.

The debt will be the obligations of limited-liability corporations controlled by Silverstein.

The bonds will be marketed to institutional investors in two series. A retail order period is not planned. Goldman, Sachs & Co. is underwriting the bonds and Winston & Strawn LLP is bond counsel.

The bulk of the issue, $2.58 billion, will be offered tomorrow as Series 2009A term-rate bonds and the proceeds will be invested in U.S. Treasuries. The bonds will be sold initially as a term bond with a 2049 maturity, subject to mandatory tender.

The proceeds will be used to purchase Treasury state and local government time deposit certificates of indebtedness or other Treasury certificates sufficient to pay interest on the bonds due July 1, 2010. They also will be used to purchase Treasury state and local government one-day certificates of indebtedness demand deposit sufficient to pay principal and interest on the bonds during a mandatory tender period from Oct. 12, 2010, to Jan. 11, 2011.

Fitch Ratings assigned its AAA/F1-plus rating to the bonds, citing the legal structure and security of Treasuries. Moody's Investors Service rates the bonds Aaa.

"It seems pretty secure, I think it would do well," said Evan Rourke, portfolio manager at Eaton Vance. "You're getting tax exempt income by an entity that's guaranteed by treasuries."

After the bonds are tendered, the issuer may remarket them with a different rating. But for the owner of this bond, they'll have it tendered and it won't make a difference when they shift modes," Rourke said.

The Series 2009B bonds will be marketed as variable-rate bonds at a par of $12.5 million, subject to change, on Dec. 29 and will be backed by an irrevocable direct-pay letter of credit from JPMorgan Chase Bank NA The Series B bond proceeds will be deposited into a capitalized interest account. Fitch rates the bonds AA-minus/F1-plus based on the LOC. Moody's rates them Aa1/VMIG-1.

Congress created the Liberty bond program following the terrorist attacks of Sept. 11, 2001, to help revitalize lower Manhattan with an $8 billion allocation of private-activity bonds. Except for this offering and $701.6 million allocated to finance a tower on behalf of the Port Authority of New York and New Jersey, all the bonds have been issued.

The authority owns the World Trade Center site and plans to use its allocation — to be issued by the New York City Industrial Development Agency — to help finance its $3.1 billion tower, 1 World Trade Center, also known as the Freedom Tower.

The Port Authority has not announced plans to use the allocation before the end of the year and executive director Christopher Ward has said he is hopeful Congress will enact a one-year extension. The House passed an extension earlier this month but the Senate has not acted on the bill. Observers have suggested an extension could be passed retroactively early next year.

Silverstein holds leases to the sites where its three towers are to be built. In 2006, the Port Authority agreed to complete preparation work on the sites for the three towers and turn them over to the developer in 2007 and 2008 or pay $300,000 a day in penalties.

After delays, the authority finally turned the last of the sites over to the developer on Aug. 24, by which time it had incurred $140 million in penalties. Under the agreement, the agency can foreclose on the tower sites if they are not substantially completed in 2012, though there are provisions for extensions to the deadlines.

Citing the delays and the economic downturn, Silverstein said it needed additional public support to finance its towers. The Port Authority made concessions but the developer was not satisfied. Silverstein began arbitration proceedings allowed under the development agreement in August, claiming that the Port Authority was in material breach of the pact.

The developer is seeking a new schedule to complete the towers to reflect the authority's delay and alleged damages caused to the project as well as damages calculated on the amount of rent the developer will have paid to the authority during the time it was unable to develop the site through final completion and the initial rent up period, according to details of the arbitration disclosed in a recent Port Authority official statement. Annual rent for the three sites is approximately $78 million, according to a source familiar with the matter.

If a settlement is not reached, Silverstein plans to commence a second arbitration seeking at least $2.75 billion in damages, claiming that the development agreement was a product of negligent and possibly fraudulent misrepresentation, according to the Port Authority OS. The authority disputes Silverstein's claims.

An individual familiar with the negotiations said the arbitration proceedings were complete and the parties are waiting for a decision.

In an interview, Gov. David Paterson said that while he expected the arbitrators to rule in favor of the bi-state agency, a ruling against the Port Authority wouldn't necessarily be the end of the negotiations. "We might appeal the decision," he said. "We cannot be financing profit right now when we can't finance to keep our state solvent."

Silverstein spokesman Bud Perrone and the Port Authority declined to comment on the arbitration. He said the bond proceeds could come out of escrow pending resolution with the authority on a range of issues, including the schedule of the completion of infrastructure.

In addition to 1 World Trade Center, the agency is investing $3.2 billion in a transportation hub to serve the site with an estimated completion date of mid-2014, as well as $914 million for other capital projects at the site.

When completed, Silverstein's three towers will add 4.4 million square feet of office space and more than 273,000 square feet of retail space to downtown, according to the preliminary official statement.

Whether downtown Manhattan can absorb the office space is another question. The recession has hurt commercial real estate. Manhattan's office vacancy rate in November was 11.3%, a 3.5 percentage point increase compared to 12 months earlier, according to a Cushman & Wakefield report. At the same time asking rents have decreased to $56 per square foot, a 21% drop from $70.87 per square foot a year ago, the report said.

Kathryn Wylde, president and chief executive officer of the Partnership for New York City, a business group, said the new office space would fill a need.

"Much of the downtown office stock is aging and is likely to be converted to residential use over the next 20 years so that new state-of-art office space will in fact be needed," Wylde said. The development at the site is "going to both be necessary and be a real improvement in the Lower Manhattan business district," she said.

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