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EXHIBIT 1.1
ARDEN REALTY LIMITED PARTNERSHIP
as Issuer
$200,000,000
8.875% SENIOR NOTES DUE 2005
AND
$50,000,000
9.150% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
March 14, 2000
XXXXXX BROTHERS INC.
Three World Financial Center
New York, New York 10285
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX XXXXX BARNEY INC.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
BANC ONE CAPITAL MARKETS, INC.
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
X. X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Arden Realty Limited Partnership, a Maryland limited partnership (the
"Issuer"), the sole general partner of which is Arden Realty, Inc., a Maryland
corporation (the "General Partner"), proposes to issue and sell, severally and
not jointly, to Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx
Xxxxx Barney Inc., Chase Securities Inc., Banc One Capital Markets, Inc. and X.
X. Xxxxxxx & Sons, Inc. (collectively, the "Initial Purchasers"), upon the terms
and conditions set forth in this agreement ("Agreement"), $200,000,000 of the
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Issuer's 8.875% Senior Notes due 2005 (the "Series A Notes") and $50,000,000 of
the Issuer's 9.150% Senior Notes due 2010 (the "Series B Notes," together with
the Series A Notes, the "Notes"). The Notes will have terms and provisions which
are summarized in the Offering Memorandum dated as of the date hereof. The Notes
are to be issued pursuant to an indenture (the "Indenture") to be entered into
among the Issuer and The Bank of New York, as trustee (the "Trustee"). This is
to confirm the agreement concerning the purchase of the Notes from the Issuer by
the Initial Purchasers. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Indenture.
Proceeds from the offering of the Notes will be used to repay secured
debt, borrowings under the Issuer's $300 million unsecured revolving line of
credit and for working capital and other general partnership purposes relating
to the Issuer.
The Notes will be offered and sold to the Initial Purchasers pursuant to
an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Securities Act"). The Issuer has prepared a preliminary
offering memorandum, dated February 29, 2000 (the "Preliminary Offering
Memorandum"), and has prepared an offering memorandum, dated March 14, 2000 (the
"Offering Memorandum"), setting forth information regarding the Issuer and the
Notes. Any references herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to include all documents incorporated by
reference therein and all amendments and supplements thereto. The Issuer hereby
confirms that it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Notes by the Initial Purchasers.
You have advised the Issuer that you will make offers (the "Exempt
Resales") of the Notes purchased by you hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely (i) to persons whom you
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Securities Act ("QIBs"), (ii) outside the United States to
certain persons in offshore transactions in reliance on Regulation S
("Regulation S") under the Securities Act and (iii) to a limited number of
persons whom you reasonably believe to be "institutional accredited investors"
as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act ("IAIs") (the persons specified in clauses (i), (ii) and (iii)
being collectively referred to herein as the "Eligible Purchasers"). As used
herein, the terms "offshore transaction," "United States" and "U.S. person" have
the respective meanings given to them in Regulation S.
Holders (including subsequent transferees) of the Notes will have the
registration rights described in the Offering Memorandum, which will be set
forth in the registration rights agreement related thereto (the "Registration
Rights Agreement"), to be dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, for so long as such Notes
constitute "Transfer Restricted Securities" (as defined in the Registration
Rights Agreement).
Pursuant to the Registration Rights Agreement, the Issuer will agree to
file with the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein, (i) a registration statement under the
Securities Act (the "Exchange Offer Registration
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Statement") relating to the Issuer's new 8.875% Senior Notes due 2005 (the
"Series A Exchange Notes") to be offered in exchange for the Series A Notes
(such offer to exchange being referred to as the "Series A Exchange Offer") and
the Issuer's new 9.150% Senior Notes due 2010 (the "Series B Exchange Notes,"
together with the Series A Exchange Notes, the "Exchange Notes") to be offered
in exchange for the Series B Notes (such offer to exchange being referred to as
the "Series B Exchange Offer," together with the Series A Exchange Offer, the
"Exchange Offers") and, if necessary, (ii) a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration Statement, the
"Registration Statements") relating to the resale by certain holders of the
Notes and to use its best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offers.
This Agreement, the Indenture, the Notes and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "Operative
Documents."
1. Representations, Warranties and Agreements of the Issuer. The Issuer
represents, warrants and agrees that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
with respect to the Notes have been prepared by the Issuer for use by the
Initial Purchasers in connection with the Exempt Resales. No order or decree
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum (or any supplement or amendment thereto), or any order asserting that
the transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act has been issued and no proceeding for that
purpose has commenced or is pending or, to the knowledge of the Issuer, is
contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum
as of their respective dates and the Offering Memorandum as of the Closing Date
(together with any supplement or amendment thereto), did not and will not
contain an untrue statement of a material fact or omit to state a material fact
necessary, in order to make the statements, in light of the circumstances under
which they were made, not misleading, except that this representation and
warranty does not apply to statements in or omissions from the Preliminary
Offering Memorandum and the Offering Memorandum (or any supplement or amendment
thereto) made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Issuer in writing by or on behalf of any
Initial Purchaser expressly for use therein.
(c) The market-related data and estimates included in the
Preliminary Offering Memorandum and the Offering Memorandum (or any supplement
or amendment thereto) are based on or derived from sources which the Issuer
believes to be reliable and accurate.
(d) The Issuer is a limited partnership duly formed and existing
under and by virtue of the laws of the State of Maryland and is in good standing
with the Maryland State Department of Assessments and Taxation (the "SDAT") with
partnership power to own, lease
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and operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Offering Memorandum and to enter into and
perform its obligations under this Agreement. The Issuer is duly qualified or
registered as a foreign partnership and is in good standing in each jurisdiction
in which such qualification or registration is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or be registered or to be in good standing in such
other jurisdiction would not result in a material adverse effect on the
consolidated financial position, results of operation, business or prospects of
the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect").
The General Partner is the sole general partner of the Issuer and, immediately
after the Closing Date will be the sole general partner of the Issuer and will
own approximately 96.7% of all outstanding common units of partnership interest
of the Issuer.
(e) Each of the subsidiaries (as defined in Section 15 hereof) of
the Issuer has been duly organized and is a validly existing partnership or
limited liability company in good standing under the laws of its jurisdiction of
organization and in each other jurisdiction in which qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
be registered or to be in good standing in such other jurisdiction would not
result in a Material Adverse Effect. Each subsidiary has all power and authority
necessary to own or hold its respective properties and to conduct the businesses
in which it is engaged; and none of the subsidiaries (other than Arden Realty
Finance, L.P.) is a "significant subsidiary," as such term is defined in Rule
405 of the Rules and Regulations.
(f) All of the issued partnership interests (the "Partnership
Interests") of the Issuer have been duly and validly authorized and issued and
are fully paid and, with respect to the Partnership Interests owned by the
General Partner are owned directly by the General Partner, free and clear of all
liens, encumbrances, equities or claims; all outstanding Partnership Interests
have been offered and sold in compliance with all applicable laws (including,
without limitation, federal and state securities laws); and all of the issued
partnership or membership interests, as the case may be, of each subsidiary of
the Issuer have been duly and validly authorized and issued and are fully paid
and are owned directly or indirectly by the Issuer, free and clear of all liens,
encumbrances, equities or claims.
(g) The second amended and restated partnership agreement of the
Issuer (the "Partnership Agreement") has been duly authorized, executed and
delivered by the General Partner on behalf of the Issuer and constitutes the
valid agreement thereof, enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law); and the execution, delivery and performance of the
Partnership Agreement and each amendment thereto did not at the time of
execution and delivery constitute a breach of, or default under any material
contract, lease or other instrument to which the Issuer was a party or by which
its properties have been bound or any law, administrative regulation or
administrative or court decree in force at the time. The Partnership Agreement
conforms in all material respects to the description thereof contained in the
Offering Memorandum.
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(h) The Issuer has all requisite partnership power and authority to
execute, deliver and perform its obligations under the Operative Documents.
(i) This Agreement has been duly authorized, executed and delivered
by the Issuer.
(j) The Indenture has been duly and validly authorized by the Issuer
and upon its due execution and delivery and, assuming due authorization,
execution and delivery by the Trustee, will constitute a valid and binding
obligation of the Issuer, enforceable against the Issuer in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law). On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "TIA"), and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder. The Indenture will
conform in all material respects to the description thereof contained in the
Offering Memorandum.
(k) The Notes have been duly and validly authorized by the Issuer
and when duly executed by the Issuer in accordance with the terms of the
Indenture and, assuming due authentication of the Notes by the Trustee, upon
delivery to the Initial Purchasers against payment therefor in accordance with
the terms hereof, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Issuer, will be in the form
contemplated by, and entitled to the benefits of, the Indenture, and enforceable
against the Issuer in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law). The Notes will conform in all material respects to the description thereof
contained in the Offering Memorandum. Such Notes are senior unsecured
obligations of the Issuer and rank on a parity with all existing and future
senior unsecured indebtedness of the Issuer.
(l) The Exchange Notes have been duly and validly authorized by the
Issuer and if and when duly issued and authenticated in accordance with the
terms of the Indenture and delivered in accordance with the Exchange Offers
provided for in the Registration Rights Agreement, will constitute valid and
binding obligations of the Issuer entitled to the benefits of the Indenture, and
will be enforceable against the Issuer in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law). Such Exchange Notes will be senior unsecured obligations
of the Issuer and will rank on a parity with all existing and future senior
unsecured indebtedness of the Issuer.
(m) The Registration Rights Agreement has been duly authorized by
the Issuer and, when executed by the Issuer in accordance with the terms hereof,
will be validly executed and delivered and (assuming the due execution and
delivery thereof by the Initial Purchasers) will be the valid and binding
obligation of the Issuer, enforceable against the Issuer
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in accordance with its terms, subject to the effects of bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law). The
Registration Rights Agreement will conform in all material respects to the
description thereof contained in the Offering Memorandum.
(n) Neither the Issuer nor any of its subsidiaries is (i) in
violation of its charter, by-laws, certificate of limited partnership, articles
of organization, operating agreement or partnership agreement, as the case may
be, (ii) in default, 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, obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan agreement, note, lease
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (iii) in violation of
any law, ordinance, governmental rule, regulation or court decree to which it or
its property 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 its property or to the conduct of its
business except, in the case of clauses (ii) and (iii) for such defaults,
violations or failures to obtain that would not, singly or in the aggregate,
have a Material Adverse Effect.
(o) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Issuer, compliance by the Issuer with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby 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 contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which the Issuer or any of its
subsidiaries is a party or by which the Issuer or any of its subsidiaries is
bound or to which any of the property or assets of the Issuer or any of its
subsidiaries is subject, that would have, singly or in the aggregate, a Material
Adverse Effect, (ii) result in any violation of the provisions of the
certificate of limited partnership, partnership agreement, certificate of
formation, limited liability company agreement or other organizational document
of the Issuer or any of its subsidiaries, (iii) result in the violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer or any of its subsidiaries or any of
their respective properties, assets or businesses, that would have, singly or in
the aggregate, a Material Adverse Effect, (iv) result in the imposition of or
creation of (or the obligation to create or impose) a lien, encumbrance, equity
or claim under, any agreement or instrument to which the Issuer or any of its
subsidiaries is a party or by which the Issuer or any of its subsidiaries or any
of their respective property is bound, except where such lien, encumbrance,
equity or claim would not have a Material Adverse Effect or (v) result in the
termination, suspension or revocation of any Authorization (as defined below) of
the Issuer or any of its subsidiaries or result in any other impairment of the
rights of the holder of any such Authorization as would not have, singly or in
the aggregate, a Material Adverse Effect; and except (A) as and as have been or
will be obtained by the Closing Date and (B) as may be required in connection
with the registration of the Exchange Notes under the Securities Act,
qualification of the Indenture under the TIA and compliance with the securities
and Blue Sky laws of various jurisdictions, 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,
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delivery and performance of this Agreement and the other Operative Documents by
the Issuer, compliance by the Issuer with all provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby.
(p) Except as described in the Offering Memorandum, there are no
legal or governmental proceedings pending or to the knowledge of the Issuer
threatened to which the Issuer or any of its subsidiaries is or to the knowledge
of the Issuer could be a party or of which any property or assets of the Issuer
or any of its subsidiaries is or could be the subject which, if determined
adversely to the Issuer or any of its subsidiaries, would, singly or in the
aggregate, have a Material Adverse Effect; and to the best of the Issuer's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(q) Except as disclosed in the Offering Memorandum: (i) there has
been no storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Issuer or any of its subsidiaries (or, to the
knowledge of the Issuer or any of its predecessors in interest or any other
person) at, upon or from any of the property now or previously owned or leased
by the Issuer or its subsidiaries, in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require any removal, remedial or other response action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any
violation or response action which would not have, singly or in the aggregate
with all such violations and response actions, a Material Adverse Effect; (ii)
there has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the Issuer or any of its subsidiaries (or, to
the knowledge of the Issuer, any of its predecessors in interest) at or upon any
property owned by anyone else in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would require any
removal, remedial or other response action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
response action which would not have, singularly or in the aggregate with all
such violations and response actions, a Material Adverse Effect; and (iii) there
has been no material spill, discharge, leak, emission, injection, escape,
placement, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the Issuer
or any of its subsidiaries or with respect to which the Issuer or any of its
subsidiaries has knowledge, except for any such spill, discharge, leak,
emission, injection, escape, placement, dumping or release which would not have
singly or in the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, placements, dumpings and releases, a Material Adverse
Effect. The terms "hazardous wastes," "toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to environmental
protection. There are no underground storage tanks located on or in any of the
properties owned or leased by the Issuer or any of its subsidiaries except such
tanks, individually or in the aggregate, the existence of which would not have a
Material Adverse Effect.
(r) The Issuer and its subsidiaries are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of
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1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Issuer or
any of its subsidiaries would have any liability; none of the Issuer or any of
its subsidiaries has incurred and nor 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"); and each "pension plan" for which the Issuer or any of its subsidiaries
would have any liability that is intended to be qualified under Section 401(a)
of the Code is 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, except for such noncompliance, reportable events, liabilities or
failures to qualify that would not result in a Material Adverse Effect.
(s) Each of the Issuer and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
environmental laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect, and each of the Issuer and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Issuer or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(t) (i) The Issuer and its subsidiaries have good and marketable
title in fee simple to all real property and own all personal property purported
to be owned by them, in each case free and clear of all liens, encumbrances and
defects, except such as are described in the Offering Memorandum, or such as
would not materially affect the value of such property and do not have a
Material Adverse Effect (except for such real property, buildings and personal
property as are described in subparagraph (ii) below); and (ii) all real
property, buildings and personal property held under lease by the Issuer and its
subsidiaries are held by them under valid, existing and enforceable leases, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Offering Memorandum, and such exceptions as would not have
a Material Adverse Effect.
(u) The Issuer and its subsidiaries own, possess or can acquire on
reasonable terms, adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses
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necessary for the conduct of their respective businesses, and have no reason to
believe that the conduct of their respective business will conflict with, and
have not received any notice of any claim of conflict with, any such rights of
others, which conflict (if the subject of an unfavorable decision, ruling or
finding), would result in a Material Adverse Effect.
(v) Ernst & Young LLP, who have certified certain financial
statements included in the Preliminary Offering Memorandum and the Offering
Memorandum, whose report appears therein and who have delivered the initial
letter referred to in Section 7(g) hereof, are independent public accountants
under Rule 101 of the American Institute of Certified Public Accountants' Code
of Professional Conduct and its interpretations and rulings thereunder.
(w) The historical financial statements (including the related
notes) included in the Offering Memorandum (and any amendment or supplement
thereto) 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 of the United States applied on a consistent basis
throughout the periods involved and all adjustments necessary for a fair
presentation of results for such periods have been made; and the financial and
statistical information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) present fairly the information and data shown
therein and have been prepared on a basis consistent with such financial
statements and the books and records of the respective entities presented
therein.
(x) Neither the Issuer nor any of its subsidiaries is and, after
giving effect to offering and sale of the Notes and the application of the net
proceeds thereof as described in the Offering Memorandum, will be an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder.
(y) Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Issuer and any person
granting such person the right to require the Issuer to file a registration
statement under the Securities Act with respect to any securities of the Issuer
owned or to be owned by such person or to require the Issuer to include such
securities in the securities registered pursuant to the Registration Statements
or in any securities being registered pursuant to any other registration
statement filed by the Issuer under the Securities Act.
(z) Neither the Issuer nor any of its subsidiaries, nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Notes to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(aa) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act (i)
has imposed (or has informed the Issuer that it is considering imposing) any
condition (financial or otherwise) on the Issuer's retaining any rating assigned
to the Issuer, any securities of the Issuer or (ii) has
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indicated to the Issuer that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Issuer or any securities of the Issuer.
(bb) Since the date of the latest audited financial statements
included in the Offering Memorandum and except as disclosed in the Offering
Memorandum, (i) there has been no material adverse change in the financial
condition, results of operations or business of the Issuer or any of its
subsidiaries, whether or not arising in the ordinary course of business, (ii) no
material casualty loss or material condemnation or other adverse event with
respect to any business or property of the Issuer or any of its subsidiaries has
occurred, (iii) there have been no transactions or acquisitions entered into by
the Issuer or any of its subsidiaries other than those in the ordinary course of
business, which are material with respect to the Issuer and its subsidiaries
taken as a whole, (iv) there have been no material liabilities or obligations,
direct or contingent, incurred by the Issuer or any of its subsidiaries, other
than liabilities and obligations which were incurred in the ordinary course of
business, (v) there has been no dividend or distribution of any kind declared,
paid or made by the Issuer with respect to its Partnership Interests, (vi) there
has been no material change in the Partnership Interests of the Issuer, or any
increase in the indebtedness of the Issuer or any of its subsidiaries and (vii)
there have been no securities issued or granted by Issuer or any of its
subsidiaries.
(cc) There is (i) no material unfair labor practice complaint
pending against the Issuer or any of its subsidiaries nor, to the best knowledge
of the Issuer, threatened against any of them before the National Labor
Relations Board or any state or local labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Issuer or any of its
subsidiaries or, to the best knowledge of the Issuer, threatened against any of
them, and (ii) no material strike, labor dispute, slowdown or stoppage pending
against the Issuer or any of its subsidiaries nor, to the best knowledge of the
Issuer, threatened against the Issuer or any of its subsidiaries which in any
case would have a Material Adverse Effect.
(dd) Each of the Issuer and its 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.
(ee) The Issuer and its subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed through the date
hereof and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Issuer or any of its subsidiaries which has had (nor
does the Issuer have any knowledge of any tax deficiency which, individually or
in the aggregate, if determined adversely to the Issuer or any of its
subsidiaries, would have) a Material Adverse Effect.
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(ff) The Issuer and each of its subsidiaries that is a partnership
are properly classified as partnerships, and not as corporations or as
associations taxable as corporations, for Federal income tax purposes throughout
the period from May 20, 1996 through the date hereof, or, in the case of such
subsidiaries that have terminated, through the date of termination of such
subsidiaries.
(hh) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(ii) When the Notes are issued and delivered pursuant to this
Agreement, such Notes are eligible for resale pursuant to Rule 144A under the
Securities Act and will not be of the same class (within the meaning of Rule
144A under the Securities Act) as securities of the Issuer that are listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or that are quoted in a
United States automated inter-dealer quotation system.
(jj) Assuming (i) that your representations and warranties in
Section 2 are true, (ii) compliance by you with your covenants set forth in
Section 2, (iii) that the representations of the IAIs set forth in the IAI
letters are true and (iv) that each of the Eligible Purchasers is a QIB, a
person who acquires the Notes in an "offshore transaction" and is not a "U.S.
Person" (within the meaning of Regulation S under the Securities Act) or an IAI,
the purchase of the Notes by the Initial Purchasers pursuant hereto and the
resale of the Notes pursuant to Exempt Resales are exempt from the registration
requirements of the Securities Act. No form of general solicitation or general
advertising (within the meaning of Rule 502(c) of the Securities Act) was used
by the Issuer or any of its representatives (other than you, as to whom the
Issuer makes no representation) in connection with the offer and sale of the
Notes, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(kk) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
(ll) None of the Issuer nor any of its affiliates or any person
acting on their behalf (other than the Initial Purchasers, as to whom the Issuer
makes no representation) (i) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S with respect to the Notes and (ii)
has complied and will comply with the offering restrictions requirements of
Regulation S.
(mm) The sale of the Notes pursuant to Regulation S is not part of a
plan or scheme to evade the registration provisions of the Securities Act.
(nn) The Issuer and its affiliates and all persons acting on their
behalf (other than the Initial Purchasers, as to whom the Issuer makes no
representation) have complied with the offering restrictions requirements of
Regulation S in connection with the offering of the
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Notes outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902(g)(2).
(oo) The Notes sold in reliance on Regulation S will be represented
upon issuance by a temporary global security that may not be exchanged for
definitive securities until the expiration of the distribution compliance
periods referred to in Rule 903(c)(3) of the Securities Act and only upon
certification of beneficial ownership of such Security by non-U.S. persons or
U.S. persons who purchased such Notes in transactions that were exempt from the
registration requirements of the Securities Act.
(pp) Each certificate signed by any officer of the General Partner
of the Issuer and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Issuer to
each Initial Purchaser as to the matters covered thereby.
(qq) Except as described in the Offering Memorandum, the Issuer and
each of its subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries in similar
geographic locations.
(rr) There are no contracts or other documents which are required to
be described in the Offering Memorandum which have not been described in the
Offering Memorandum.
(ss) No material relationship, direct or indirect, exists between or
among the Issuer or any of its subsidiaries on the one hand, and the directors,
officers, partners, stockholders, customers or suppliers of the Issuer or any of
its subsidiaries on the other hand, which is required to be described in the
Offering Memorandum which is not so described.
(tt) None of the Issuer or any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Issuer or any of its subsidiaries, has used any partnership 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 partnership funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(uu) The statements set forth in the Offering Memorandum under the
captions "Description of Other Debt," "Description of Notes" and "Exchange
Offer; Registration Rights" insofar as they describe the terms of the agreements
and securities referred to therein, are accurate and fairly present the
information required to be shown in all material respects.
(vv) The Issuer and its subsidiaries are currently in substantial
compliance with all presently applicable provisions of the Americans with
Disabilities Act and no failure of the Issuer or any of its subsidiaries to
comply with all presently applicable provisions of the Americans with
Disabilities Act, individually or in the aggregate, would result in a Material
Adverse Effect.
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2. Subsequent Offers and Resales of the Notes.
(a) Each of the Initial Purchasers and the Issuer hereby establish and
agree to observe the following procedures in connection with the sale of the
Notes:
(i) Offers and sales of the Notes shall only be made (A) to
persons whom the offeror or seller reasonably believes to be QIBs, (B)
to a limited number of IAIs or (C) non-U.S. persons outside the United
States, as defined in Regulation S under the Securities Act, to whom the
offeror or seller reasonably believes offers and sales of the Notes may
be made in reliance upon Regulation S under the Securities Act. Each
Initial Purchaser severally agrees that it will not offer, sell or
deliver any of the Notes in any jurisdiction outside the United States
except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense
whatever action is required to permit its purchase and sale of the Notes
in such jurisdictions.
(ii) No general solicitation or general advertising (within the
meaning of Rule 502(c) under the Securities Act) will be used in the
United States in connection with the offering or sale of the Notes.
(iii) In the case of a non-bank Eligible Purchaser of a Note
acting as a fiduciary for one or more third parties, each third party
shall, in the judgment of the applicable Initial Purchaser, be an IAI or
a QIB or a non-U.S. person outside the United States.
(iv) Each Initial Purchaser will take reasonable steps to inform,
and cause each of its U.S. affiliates to take reasonable steps to
inform, persons acquiring Notes from such Initial Purchaser or
affiliate, as the case may be, in the United States that the Notes (A)
have not been and will not be registered under the Securities Act, (B)
are being sold to them without registration under the Securities Act in
reliance on Rule 144A or in accordance with another exemption from
registration under the Securities Act, as the case may be and (C) may
not be offered, sold or otherwise transferred except (1) to the Issuer,
(2) outside the United States in accordance with Regulation S or (3)
inside the United States in accordance with (x) Rule 144A to a person
whom the seller reasonably believes is a QIB that is purchasing such
Notes for its own account or the account of a QIB to whom notice is
given that the offer, sale or transfer is being made in reliance on Rule
144A or (y) pursuant to another available exemption from registration
under the Securities Act.
(v) No sale of the Notes to any one IAI will be for less than
U.S. $100,000 and for any other Eligible Purchaser will be for less than
U.S. $1,000 principal amount and no Note will be issued in a smaller
principal amount, as applicable. If the Eligible Purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom it is acting
must purchase at least U.S. $1,000 or U.S. $100,000 principal amount of
the Notes, as applicable.
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(vi) The transfer restrictions and the other provisions set forth
in the Offering Memorandum under the heading "Notice to Investors,"
including the legend required thereby, shall apply to the Notes except
as otherwise agreed by the Issuer and the Initial Purchasers.
(vii) Each Initial Purchaser severally represents and warrants
that:
(A) it has not offered or sold and, prior to the
expiration of six months from the closing of the offering
of the Notes, will not offer or sell any notes to persons
in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principals or as agents) for
the purposes of their businesses or otherwise in
circumstances which have not constituted or resulted in
and will not constitute or result in an offer to the
public in the United Kingdom, within the meaning of the
Public Offers of Securities Regulations 1995;
(B) it has complied and will comply with all
applicable provisions of the Financial Services Act of
1986 with respect to anything done by it in relation to
the Notes in, from or otherwise involving the United
Kingdom; and
(C) it has not issued or passed on and will not
issue or pass on in the United Kingdom any document
created or received by it in connection with the issue of
the Notes to a person who is of a kind described in
Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom such document may
otherwise lawfully be issued or passed on.
(b) The Issuer covenants with each Initial Purchaser as follows:
(i) The Issuer agrees that it will not and will cause its
affiliates not to, directly or indirectly, solicit any offer to
buy, sell or make any offer or sale of, or otherwise negotiate in
respect of, securities of the Issuer of any class if, as a result
of the doctrine of "integration" referred to in Rule 902 under
the Securities Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Notes by the Issuer to the
Initial Purchasers, (ii) the resale of the Notes by the Initial
Purchasers to Eligible Purchasers or (iii) the resale of the
Notes by such Eligible Purchasers to others) the exemption from
the registration requirements of the Securities Act provided by
Section 4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(ii) The Issuer agrees that, in order to render the Notes
eligible for resale pursuant to Rule 144A under the Securities
Act, while any of the Notes remain outstanding, it will make
available, upon request, to any holder of Notes or prospective
purchasers of Notes the information specified in Rule 144(d)(4),
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unless the Issuer furnishes information to the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934.
(iii) Until the expiration of two years after the original
issuance of the Notes, the Issuer will not, and will cause its
affiliates not to, resell any Notes which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under
the Securities Act), whether as beneficial owner or otherwise
(except as agent acting as a securities broker on behalf of and
for the account of customers in the ordinary course of business
in unsolicited broker's transactions).
(c) Each Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Issuer that it is a QIB within the meaning of
Rule 144A under the Securities Act.
(d) Each Initial Purchaser understands that the Notes have not been and
will not be registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Securities Act or pursuant to
an exemption from the registration requirements of the Securities Act. Each
Initial Purchaser severally represents and agrees that, except as permitted by
Section 2(a) above, it has offered and sold Notes and will offer and sell Notes
(i) as part of its distribution at any time or (ii) otherwise until forty days
after the later of the date upon which the offering of the Notes commences and
the Closing Date, only in accordance with Rule 903 of Regulation S, Rule 144A
under the Securities Act or another applicable exemption from the registration
requirements of the Securities Act. Accordingly, neither the Initial Purchasers,
their subsidiaries nor any persons acting on their behalf have engaged or will
engage in any directed selling efforts with respect to Notes sold hereunder
pursuant to Regulation S, and the Initial Purchasers, their affiliates and any
person acting on their behalf have complied and will comply with the offering
restrictions requirements of Regulation S. Each Initial Purchaser severally
agrees that, at or prior to confirmation of a sale of Notes pursuant to
Regulation S, it will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation or notice substantially to the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of
the offering or the Closing Date, except in either case in accordance
with Regulation S or Rule 144A if available under the Securities Act.
Terms used above have the meanings assigned to them in Regulation S."
(e) Each Initial Purchaser represents and warrants severally that it has
not entered and will not enter into any contractual arrangement with respect to
the distribution or delivery of the Notes, except with its affiliates or with
the prior written consent of the Issuer.
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The terms used in this Section 2 that have meanings assigned to them
in Regulation S are used herein as so defined.
3. Purchase of the Notes by the Initial Purchasers.
(a) On the basis of the representations and warranties contained in,
and subject to the terms and conditions of, this Agreement, the Issuer agrees to
sell to each Initial Purchaser, severally and not jointly, and each Initial
Purchaser, severally and not jointly, agrees to purchase at the price set forth
in Schedule B attached hereto, the aggregate principal amount of Notes set forth
in Schedule A opposite the name of such Initial Purchaser.
(b) The Issuer shall not be obligated to deliver any of the Notes to
be delivered on the Closing Date (as defined herein), except upon payment for
all the Notes to be purchased on the Closing Date as provided herein.
4. Delivery of the Notes and Payment Therefor.
(a) Delivery to the Initial Purchasers of and payment for the Notes
shall be made at the office of Xxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-0000, at 9:00 A.M., New York City time, on March 17, 2000
(the "Closing Date") in person or via overnight courier or facsimile by
agreement between the Initial Purchasers and the Issuer. The place and method of
closing for the Notes and the Closing Date may be varied by agreement between
the Initial Purchasers and the Issuer.
(b) The Notes will be delivered to the Initial Purchasers against
payment of the purchase price therefor in immediately available funds. The Notes
will be evidenced by one or more global securities in definitive form (the
"Global Notes") and/or by additional definitive securities, and will be
registered, in the case of the Global Note, in the name of Cede & Co. as nominee
of The Depository Trust Company ("DTC"), and in the other cases, in such names
and in such denominations as the Initial Purchasers shall request prior to 9:30
A. M., New York City time, on the second business day preceding the Closing
Date. The Notes to be delivered to the Initial Purchasers shall be made
available to the Initial Purchasers in New York City for inspection and
packaging not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date.
(c) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
the Initial Purchasers hereunder.
5. Further Agreements of the Issuer. The Issuer agrees with each Initial
Purchaser as follows:
(a) The Issuer will advise each Initial Purchaser immediately and
confirm such advice in writing, of (i) the issuance by any state securities
commission of any stop order suspending the qualification or exemption from
qualification of any Notes for offering or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose by the Commission
or any state securities commission or other regulatory authority, and (ii) the
happening of any event that makes any statement of a material fact made in the
Offering
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Memorandum untrue or which requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Issuer shall use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any Notes under any state securities or Blue
Sky laws and, if at any time any state securities commission shall issue any
stop order suspending the qualification or exemption of any Notes under any
state securities or Blue Sky laws, the Issuer shall use every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Issuer, as promptly as possible, will furnish to each
Initial Purchaser, without charge, as of the date of the Offering Memorandum,
such number of copies of the Offering Memorandum, and any amendments or
supplements thereto, as such Initial Purchaser may reasonably request.
(c) The Issuer will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum of which the
Initial Purchasers or their counsel shall not previously have been advised and
to which they shall reasonably object after being so advised.
(d) Prior to the execution and delivery of this Agreement, the
Issuer shall have delivered or will deliver to each Initial Purchaser, without
charge, in such quantities as such Initial Purchaser shall have requested or may
hereafter reasonably request, copies of the Preliminary Offering Memorandum.
(e) The Issuer consents to the use, in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are offered
by the Initial Purchasers and by dealers, prior to the date of the Offering
Memorandum, of each Preliminary Offering Memorandum so furnished by them. The
Issuer consents to the use of the Offering Memorandum in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are offered
by the Initial Purchasers and by all dealers to whom Notes may be sold, in
connection with the offering and sale of the Notes.
(f) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to Eligible Purchasers, any event shall occur
that in the reasonable judgment of the Issuer or in the opinion of counsel for
the Initial Purchasers should be set forth in the Offering Memorandum in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary to supplement or amend the
Offering Memorandum in order to comply with any law, the Issuer will, subject to
Section 5(c), forthwith prepare an appropriate supplement or amendment thereto
(in form and substance reasonably satisfactory to counsel for the Initial
Purchasers), so that, as so amended or supplemented, the Offering Memorandum
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at the time it is delivered to an Eligible Purchaser, not
misleading, and will expeditiously furnish to each Initial Purchaser and dealer
a reasonable number of copies thereof.
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(g) The Issuer will cooperate with the Initial Purchasers and with
their counsel in connection with the qualification of the Notes for offering and
sale by the Initial Purchasers and by dealers under the securities or Blue Sky
laws of such jurisdictions as the Initial Purchasers may designate and will file
such consents to service of process or other documents necessary or appropriate
in order to effect such qualification; provided that in no event shall the
Issuer 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
Notes, in any jurisdiction where it is not now so subject.
(h) During the period beginning on the date hereof and continuing to
and including the date 180 days after the Closing Date, the Issuer will not
offer, sell, contract to sell or otherwise transfer or dispose of any debt
securities (except pursuant to the Exchange Offer) of the Issuer or any of its
subsidiaries or any warrants, rights or options to purchase or otherwise acquire
debt securities of the Issuer or any of its subsidiaries substantially similar
to the Notes (other than (i) the Notes, (ii) loans secured by real property or
interests therein, (iii) bank loans or lines of credit or (iv) commercial paper
issued in the ordinary course of business), without the prior written consent of
Xxxxxx Brothers Inc.
(i) So long as any of the Notes are outstanding, the Issuer will
furnish to the Initial Purchasers (A) as soon as available, a copy of each
report of the Issuer mailed to Issuer's unitholders generally or filed with any
stock exchange or regulatory body and (B) from time to time such other
information concerning the Issuer as the Initial Purchasers may reasonably
request.
(j) The Issuer will apply the net proceeds from the sale of the
Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(k) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, the Issuer has not taken, nor will
it take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Notes to facilitate the sale or resale of the Notes. Except as permitted by
the Securities Act, the Issuer will not distribute any offering material in
connection with the Exempt Resales.
(l) The Issuer will use its best efforts to permit the Notes to be
eligible for clearance and settlement through DTC.
(m) From and after the Closing Date, so long as any of the Notes are
outstanding and are "restricted securities" within the meaning of the Rule
144(a)(3) under the Securities Act or, if earlier, until two years after the
Closing Date, but only during any period in which the Issuer is not subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will furnish to holders of
the Notes and prospective purchasers of Notes designated by such holders, upon
request of such holders or such prospective purchasers, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to permit
compliance with Rule 144A in connection with resale of the Notes.
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(n) The Issuer agrees not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Notes in a manner
that would require the registration under the Securities Act of the sale to the
Initial Purchasers or the Eligible Purchasers of the Notes.
(o) The Issuer agrees to comply with all the terms and conditions of
the Registration Rights Agreement, the Indenture and all agreements set forth in
the representation letter of the Issuer to DTC relating to the approval of the
Notes by DTC for "book entry" transfer.
(p) The Issuer agrees to cause the Exchange Offers to be made in the
appropriate form, as contemplated by the Registration Rights Agreement, to
permit registration of the Exchange Notes to be offered in exchange for the
Series A Notes or the Series B Notes, as applicable, and to comply with all
applicable federal and state securities laws in connection with such Exchange
Offers.
(q) The Issuer agrees that prior to any registration of the Exchange
Notes pursuant to the Registration Rights Agreement, or at such earlier time as
may be required, the Indenture shall be qualified under the 1939 Act and any
necessary supplemental indentures will be entered into in connection therewith.
(r) The Issuer will not voluntarily claim, and will resist actively
all attempts to claim, the benefit of any usury laws against holders of the
Notes.
(s) The Issuer will do and perform all things required or necessary
to be done and performed under this Agreement by it prior to the Closing Date,
and to satisfy all conditions precedent to the Initial Purchasers' obligations
hereunder to purchase the Notes.
(t) The Issuer shall take all reasonable action necessary to enable
Standard & Poors, a division of The McGraw Hill Companies, Inc. ("S&P") and
Xxxxx'x Investors Service, Inc. ("Xxxxx'x") to provide their respective
investment-grade credit ratings of the Notes.
6. Expenses. The Issuer agrees to pay all costs, expenses, fees and
taxes incident to and in connection with: (i) the preparation, printing, filing
and distribution of the Preliminary Offering Memorandum and the Offering
Memorandum (including, without limitation, financial statements and exhibits)
and all amendments and supplements thereto (but not, however, legal fees and
expenses of Initial Purchasers' counsel incurred in connection therewith), (ii)
the preparation, printing (including, without limitation, word processing and
duplication costs) and delivery of this Agreement, the other Operative
Documents, all Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection wherewith
and with the Exempt Resales (but not, however, legal fees and expenses of
Initial Purchasers' counsel incurred in connection with any of the foregoing
other than reasonable fees of such counsel plus reasonable disbursements
incurred in connection with the preparation, printing and delivery of such Blue
Sky Memoranda), (iii) the authorization, issuance, sale and delivery by the
Issuer of the Notes, (iv) the qualification of the Notes for offer and sale
under the securities or Blue Sky laws of the several states (including, without
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limitation, the reasonable fees and disbursements of Initial Purchasers' counsel
relating to such registration or qualification), (v) furnishing such copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested for use in
connection with the Exempt Resales, (vi) the preparation of certificates for the
Notes (including, without limitation, printing and engraving thereof), (vii) the
fees, disbursements and expenses of the Issuer's counsel and accountants, (viii)
all fees and expenses (including fees and expenses of Issuer's counsel) of the
Issuer in connection with approval of the Notes by DTC for "book-entry"
transfer, (ix) any fees charged by securities rating services for rating the
Notes and (x) the performance by the Issuer of their other obligations under
this Agreement.
7. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers hereunder are subject to the accuracy, when made and on the
Closing Date, of the representations and warranties of the Issuer contained
herein, to the performance by the Issuer of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Offering Memorandum shall have been printed and copies made
available to you not later than 6:00 p.m., New York City time, on the business
day following the date of this Agreement, or at such later date and time as you
may approve in writing.
(b) The Initial Purchasers shall not have discovered and disclosed
to the Issuer on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Xxxxx & Xxxxxxx L.L.P., counsel for the Initial
Purchasers, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) All partnership proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the other Operative
Documents and the Offering Memorandum, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchasers, and
the Issuer shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxxx shall have furnished to the Initial Purchasers,
its written opinion (based on the assumptions and subject to the exclusions
contained therein), as counsel to the Issuer, addressed to the Initial
Purchasers and dated the Closing Date, substantially as to the matters set forth
in Exhibit A hereto.
(e) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP shall have furnished to
the Initial Purchasers, its written opinion (based on the assumptions and
subject to the exclusions contained therein), as special Maryland counsel to the
Issuer, addressed to the Initial Purchasers and dated the Closing Date,
substantially as to the matters set forth in Exhibit B hereto.
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(f) The Initial Purchasers shall have received from Xxxxx & Xxxxxxx
L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Notes, the Offering
Memorandum and other related matters as the Initial Purchasers may reasonably
require, and the Issuer shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At the time of execution of this Agreement, the Initial
Purchasers shall have received from Ernst & Young LLP a letter, in form and
substance satisfactory to the Initial Purchasers, addressed to the Initial
Purchasers and dated the date hereof (i) confirming that they are independent
public accountants under Rule 101 of the American Institute of Certified Public
Accountants' Code of Professional Conduct and its interpretations and rulings
thereunder and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as of a
date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information (including pro
forma financial information) and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with registered
public offerings.
(h) With respect to the letter of Ernst & Young LLP referred to in
the preceding paragraph and delivered to the Initial Purchasers concurrently
with the execution of this Agreement (the "initial letter"), the Issuer shall
have furnished to the Initial Purchasers a letter (the "bring-down letter") of
such accountants, addressed to the Initial Purchasers and dated the Closing Date
(i) confirming that they are independent public accountants under Rule 101 of
the American Institute of Certified Public Accountants' Code of Professional
Conduct and its interpretations and rulings thereunder, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information (including pro forma
financial information) and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letter.
(i) The Issuer shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of the Chief Executive Officer, President
or a Vice President of the General Partner on its behalf and the chief financial
officer of the General Partner stating that:
(A) The representations, warranties and agreements of the Issuer
in Section 1 are true and correct as of the Closing Date; the Issuer has
complied with all its agreements contained herein; and the conditions set forth
in Sections 7(j) and 7(l) have been fulfilled; and
(B) They have carefully examined the Offering Memorandum and, in
their opinion (a) as of its date, the Offering Memorandum 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, (b) since the date of such Offering Memorandum no event has occurred
which should have been set forth in a supplement or
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amendment to the Offering Memorandum and (c) except as reflected in or
contemplated by the Offering Memorandum, there shall not have been since the
respective dates as of which information is given in the Offering Memorandum,
any material adverse change in the financial condition or in the results of
operations, business affairs or business prospects of the Issuer and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (other than changes relating to the economy in
general or the Issuer's industry in general and not specifically related to the
Issuer).
(j) Neither the Issuer nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Memorandum (i) any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum or (ii)
since such date there shall not have been any change in the capital stock,
Partnership Interests or long-term debt of the Issuer or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, business prospects, management, financial
position, stockholders' or unitholders' equity, as applicable, or results of
operations of the Issuer and its subsidiaries, otherwise than as set forth or
contemplated in the Offering Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable or inadvisable to proceed
with the delivery of the Notes being delivered on the Closing Date on the terms
and in the manner contemplated in the Offering Memorandum.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Issuer on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Initial Purchasers, impracticable or inadvisable to market the Notes or to
enforce contracts for the sale of the Notes in the manner contemplated in the
Offering Memorandum.
(l) On the Closing Date, the Notes shall be rated at least BBBby S&P
and Baa3 by Moody's and the Issuer shall have delivered to the Initial
Purchasers a letter dated on or before the Closing Date from each such rating
agency, or other evidence satisfactory to the Initial Purchasers, confirming
that the Notes have such ratings; and subsequent to the execution and delivery
of this Agreement (i) no downgrading shall have occurred in the rating accorded
debt securities of the Issuer by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and
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Regulations and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of the Issuer's debt securities.
(m) The Issuer shall have furnished a Secretary's Certificate in
form and substance satisfactory to the Initial Purchasers.
(n) On the Closing Date, the Registration Rights Agreement shall
have been fully executed and delivered by the Issuer.
(o) Xxxxx & Xxxxxxx L.L.P. shall have been furnished with such other
documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(p) All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which any Initial
Purchaser, such officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in the Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or supplement
thereto or (B) in any blue sky application or other document prepared or
executed by the Issuer (or based upon any written information furnished by the
Issuer) specifically for the purpose of qualifying any or all of the Notes under
the securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), (ii)
the omission or alleged omission to state in the Preliminary Offering Memorandum
or the Offering Memorandum, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the Notes or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Issuer shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by any Initial Purchaser through its gross
negligence or
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willful misconduct), and shall reimburse any Initial Purchaser and each such
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by any Initial Purchaser, such officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuer shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Offering
Memorandum, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
concerning any Initial Purchaser furnished to the Issuer by or on behalf of any
Initial Purchaser specifically for inclusion therein; and provided further, that
the foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser from whom the
person asserting any such losses, claims, damages or liabilities purchased
Notes, or any person controlling such Initial Purchaser, if a copy of the
Offering Memorandum (as then amended or supplemented if the Issuer shall have
furnished any amendments or supplements thereto) was not seen or given by or on
behalf of such Initial Purchaser to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the Notes
to such person, and if the Offering Memorandum (as so amended or supplemented)
would have corrected any such untrue statement of a material fact contained in,
and each omission or alleged omission of material fact from, such Preliminary
Offering Memorandum giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Issuer with Section
5(b) hereof. The foregoing indemnity agreement is in addition to any liability
which the Issuer may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of such Initial Purchaser.
(b) Each Initial Purchaser severally agrees to indemnify and hold
harmless the Issuer, its officers and employees, each of its directors, and each
person, if any, who controls the Issuer within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, or any action in
respect thereof, to which the Issuer or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in the Preliminary
Offering Memorandum or the Offering Memorandum, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning any Initial Purchaser furnished
to the Issuer by or on behalf of such Initial Purchaser specifically for
inclusion therein, and shall reimburse the Issuer and any such director, officer
or controlling person for any legal or other expenses reasonably incurred by the
Issuer or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which each Initial Purchaser
may otherwise have to the Issuer or any such director, officer, employee or
controlling person.
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(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel, it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to one local counsel) at
any time for all such indemnified parties, which firm shall be designated in
writing by the Initial Purchasers, if the indemnified parties under this Section
8 consist of the Initial Purchasers or any of their officers, employees or
controlling persons, or by the Issuer, if the indemnified parties under this
Section 8 consist of the Issuer or any of its directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed), 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, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with the
consent of the indemnifying party or if there be a final
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judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Issuer, on the one hand, and the Initial Purchasers, on the
other, from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer, on the one hand, and the
Initial Purchasers, on the other, with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Issuer, on the one hand, and the Initial Purchasers, on
the other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Issuer, on the
one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Notes purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Notes
under this Agreement, in each case as set forth on the cover page of the
Offering Memorandum. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Issuer or the Initial Purchasers, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Issuer and the Initial Purchasers agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), the Initial Purchasers
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Notes purchased by it were resold to the Eligible
Purchasers exceeds the amount of any damages which the Initial Purchaser has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The Initial Purchasers' respective obligations to contribute
pursuant to Section 8(d) are several in proportion to the principal amount of
Notes set forth opposite their respective names in Schedule A hereto and not
joint.
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9. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the Notes which
the defaulting Initial Purchaser agreed but failed to purchase on the Closing
Date in the respective proportions which the amount of Notes set opposite the
name of each remaining non-defaulting Initial Purchaser in Schedule A hereto
bears to the total amount of Notes set opposite the names of all the remaining
non-defaulting Initial Purchasers in Schedule A hereto; provided, however, that
the remaining non-defaulting Initial Purchasers shall not be obligated to
purchase any of the Notes on the Closing Date if the total amount of Notes which
the defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase on such date exceeds 9.09% of the total principal amount of Notes to be
purchased on the Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the amount of
Notes which it agreed to purchase on the Closing Date pursuant to the terms of
Section 4. If the foregoing maximums are exceeded, the remaining non-defaulting
Initial Purchasers shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all the Notes to
be purchased on the Closing Date. If the remaining Initial Purchasers do not
elect to purchase the Notes which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase on the Closing Date, this Agreement
shall terminate without liability on the part of any non-defaulting Initial
Purchaser or the Issuer, except that the Issuer will continue to be liable for
the payment of expenses to the extent set forth in Sections 8 and 11. As used in
this Agreement, the term "Initial Purchaser" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule A hereto who, pursuant to this Section 9, purchases Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Issuer for damages caused by its
default. If other Initial Purchasers are obligated or agree to purchase the
Notes of a defaulting or withdrawing Initial Purchaser, either Xxxxxx Brothers
Inc. or the Issuer may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Issuer or counsel for the Initial Purchasers may be necessary in the Offering
Memorandum or in any other document or arrangement.
10. Termination. The obligations of the Initial Purchasers hereunder may
be terminated by the Initial Purchasers by notice given to and received by the
Issuer prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 7(j), 7(k) or 7(l)(i) or (ii) shall have
occurred, or if the conditions in the first two clauses of Section 7(l) shall
not have occurred, or if the Initial Purchasers shall decline to purchase the
Notes for any reason permitted under this Agreement. Such termination shall be
without liability of any party to any other party except as provided in Section
6 and 10 and except that Section 1, 8 and 14 shall survive any such termination
and remain in full force and effect.
11. Reimbursement of Initial Purchasers' Expenses. If the Issuer shall
fail to tender the Notes for delivery to the Initial Purchasers by reason of any
failure, refusal or inability on the part of the Issuer to perform any agreement
on their part to be performed, or because any
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other condition of the obligations hereunder required to be fulfilled by the
Issuer is not fulfilled other than the conditions set forth in Section 7(k), the
Issuer will reimburse the Initial Purchasers for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase of the
Notes, and upon demand the Issuer shall pay the full amount thereof to the
Initial Purchasers. If this Agreement is terminated pursuant to Section 10 by
reason of the default of one or more Initial Purchasers, the Issuer shall not be
obligated to reimburse any such Initial Purchaser on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(e) if to the Initial Purchasers, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000), with a copy to Xxxxx & Xxxxxxx L.L.P., 000 Xxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000, Attention: J. Xxxxxx Xxxxxxx, Xx.
(Fax: 000-000-0000) and, in the case of any notice pursuant to Section 8(d), to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc.,
Three World Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000; and
(f) if to the Issuer, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Issuer set forth in the Offering
Memorandum, Attention: Xxxxxxx X. Xxxxx (Fax: 000-000-0000), with a copy to
Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxx (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Issuer shall be entitled to act and
rely upon any request, consent, notice or agreement given by Xxxxxx Brothers
Inc. on behalf of the Initial Purchasers.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Initial Purchasers, the Issuer and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Issuer contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control each Initial Purchaser within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the Initial
Purchasers contained in Section 8(c) of this Agreement shall be deemed to be for
the benefit of directors of the Issuer and any person controlling the Issuer
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Issuer and each of the Initial Purchasers contained in
this Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the
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delivery of and payment for the Notes and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations of the Commission
under the Securities Act.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York without regard to principles of conflicts
of laws.
Each party irrevocably agrees that any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York in each case located in the Borough of Manhattan
in the City of New York (collectively, the "Specified Courts"), and irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. The parties further agree that service of
any process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any lawsuit, action or
other proceeding brought in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any lawsuit,
action or other proceeding in the Specified Courts, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such lawsuit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(Signature Page Follows)
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If the foregoing correctly sets forth the agreement between the Issuer
and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ARDEN REALTY LIMITED PARTNERSHIP
By: Arden Realty, Inc., its general
partner
By: /s/ XXXXX X. XXXXX
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted on behalf of all Initial Purchasers:
XXXXXX BROTHERS INC.
By: /s/ XXXXX X. XXXXX
-----------------------------------
Authorized Representative
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SCHEDULE A
PRINCIPAL AMOUNT
NAME OF INITIAL PURCHASER SERIES A NOTES
Xxxxxx Brothers Inc. $125,000,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 20,000,000
Xxxxxxx Xxxxx Barney Inc. $ 20,000,000
Chase Securities Inc. $ 15,000,000
Banc One Capital Markets $ 10,000,000
X. X. Xxxxxxx & Sons, Inc. $ 10,000,000
Total $200,000,000
PRINCIPAL AMOUNT
NAME OF INITIAL PURCHASER SERIES B NOTES
Xxxxxx Brothers Inc. $31,250,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 5,000,000
Xxxxxxx Xxxxx Barney Inc. $ 5,000,000
Chase Securities Inc. $ 3,750,000
Banc One Capital Markets $ 2,500,000
X. X. Xxxxxxx & Sons, Inc. $ 2,500,000
Total $50,000,000
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SCHEDULE B
ARDEN REALTY LIMITED PARTNERSHIP
$200,000,000 8.875% SENIOR NOTES DUE 2005
1. The initial offering price of the 8.875% Senior Notes due 2005 shall
be 99.744% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
8.875% Senior Notes due 2005 shall be 99.144% of the principal amount thereof.
3. The interest rate on the 8.875% Senior Notes due 2005 shall be 8.875%
per annum.
ARDEN REALTY LIMITED PARTNERSHIP
$50,000,000 9.150% SENIOR NOTES DUE 2010
1. The initial offering price of the 9.150% Senior Notes due 2010 shall
be 99.181% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
9.150% Senior Notes due 2010 shall be 98.531% of the principal amount thereof.
3. The interest rate on the 9.150% Senior Notes due 2010 shall be 9.150%
per annum.
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EXHIBIT A
OPINION MATTERS
XXXXXX & XXXXXXX
1. Based solely on certificates from public officials, each of the limited
liability companies and limited partnerships on Schedule A-I hereto
whose jurisdiction is listed as California (collectively, the
"California Subsidiaries") has been duly formed and is validly existing
under the laws of the State of California. Based solely on certificates
from public officials, each of the California limited liability
companies that is a California Subsidiary is in good standing under the
laws of the State of California. Each of the California limited
liability companies that is a California Subsidiary has the limited
liability company power and authority to conduct its business as
described in the Offering Memorandum. Each of the California limited
partnerships that is a California Subsidiary has the limited partnership
power and authority to conduct its business as described in the Offering
Memorandum. All of the partnership or limited liability company
interests, as applicable, of each California Subsidiary have been duly
and validly authorized and issued.
2. Based solely on certificates from public officials, each of the limited
liability companies on Schedule A-I hereto whose jurisdiction is listed
as Delaware (collectively, the "Delaware Subsidiaries") has been duly
formed and is validly existing and is in good standing under the laws of
the State of Delaware. Each of the Delaware limited liability companies
that is a Delaware Subsidiary has the limited liability company power
and authority to conduct its business as described in the Offering
Memorandum, and, to our knowledge based solely on certificates from the
California Secretary of State, is duly qualified as a foreign limited
liability company in California and is in good standing in the State of
California. All of the limited liability company interests of each
Delaware Subsidiary have been duly and validly authorized and issued.
3. All of the issued partnership or limited liability company interests of
each of the California Subsidiaries and Delaware Subsidiaries are owned
either by the Issuer or Arden Realty, Inc. ("Arden Realty") and are, to
our knowledge, based solely on an officer's certificate, owned by the
Issuer or Arden Realty, free and clear of all liens, encumbrances,
equities or claims.
4. Assuming due authorization, execution and delivery of the Indenture by
the Issuer and the Trustee, the Indenture is a valid and binding
obligation of the Issuer, and is enforceable against it in accordance
with its terms.
5. The Notes, when paid for by the Initial Purchasers in accordance with
the terms of the Purchase Agreement (assuming the due authorization,
execution and delivery of the Indenture by the Issuer and the Trustee
and due authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute Notes under the terms of
the Indenture, will constitute the valid and binding obligations of the
Issuer, will be entitled to the benefits of the Indenture, and will be
enforceable against it in accordance with their terms.
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6. Assuming due authorization of the Exchange Notes by the Issuer, when, as
and if (i) the Exchange Offer Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the
Indenture shall have been qualified pursuant to the provisions of the
Trust Indenture Act of 1939, as amended, (iii) the Notes being exchanged
for Exchange Notes shall have been validly tendered to the issuer, (iv)
the Exchange Notes shall have been duly executed, authenticated and
issued in accordance with the provisions of the Indenture and duly
delivered to the purchasers thereof in exchange for the Notes, and (v)
any legally required consents, approvals, authorizations or other order
of the Securities and Exchange Commission or any other regulatory
authorities have been obtained, the Exchange Notes will constitute valid
and binding obligations of the Issuer, will be entitled to the benefits
of the Indenture, as applicable.
7. No registration of the Notes under the Securities Act, and no
qualification of the Indenture under the Trust Indenture Act, is
required for the purchase of the Notes by you or the initial resale of
the Notes by you, in each case, in the manner contemplated by the
Purchase Agreement and the Offering Memorandum. We express no opinion,
however, as to when or under what circumstances any Notes initially sold
by you may be reoffered or resold.
8. Assuming due authorization, execution and delivery by the Issuer and the
other parties thereto, the Registration Rights Agreement is a valid and
binding obligation of the Issuer, and is enforceable against it in
accordance with its terms.
9. The issuance and sale of the Notes being delivered on the Closing Date
by the Issuer, the execution, delivery and performance of the Purchase
Agreement and the other Operative Documents by the Issuer and the
compliance by the Issuer with all provisions thereof as of the Closing
Date do 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 identified to us as material to the Issuer or any of its
California Subsidiaries or Delaware Subsidiaries in an officer's
certificate, except for such conflicts, breaches, violations or defaults
that, individually or in the aggregate, would not have a Material
Adverse Effect, nor will such actions result in any violation of the
provisions of the certificate of limited partnership or partnership
agreement of the Issuer, or the certificate of limited partnership or
partnership agreement or limited liability company operating agreement,
as applicable, of any of its California Subsidiaries or Delaware
Subsidiaries, or any federal or California statute, or the Delaware
General Corporation Law, or any order, rule or regulation known to such
counsel of any U.S. federal or California or Delaware state court or
governmental agency or body having jurisdiction over the Issuer or any
of such California Subsidiaries or Delaware Subsidiaries or any of their
properties or assets.
10. To our knowledge, based solely on an officer's certificate and review of
attorney letters furnished to the Issuer's independent public
accountants in connection with their audit of financial statements, and
other than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Issuer or any of its
California Subsidiaries or Delaware Subsidiaries is a party or of which
any property or assets of the Issuer or any of its California
Subsidiaries or Delaware Subsidiaries is the subject which, if
determined adversely to the Issuer or any of its California Subsidiaries
or Delaware
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Subsidiaries, would have a Material Adverse Effect; and, to our
knowledge, based solely on an officer's certificate, no such proceedings
are threatened or contemplated by California or Delaware governmental
authorities or threatened by others.
11. To our knowledge, there are no contracts or other documents which are
required to be described in the Offering Memorandum which have not been
described.
12. The information in the Offering Memorandum under the headings
"Description of Notes," "Management," "Transactions with Related
Parties" and "Policies with Respect to Certain Activities" to the extent
that it summarizes laws, governmental rules or regulations or documents
referred to therein, are correct in all material respects.
13. The statements contained in the Offering Memorandum under the headings
"Risk Factors - Tax Risks" and "Federal Income Tax Consequences,"
insofar as they describe federal statutes, rules and regulations or
legal conclusions with respect thereto, are correct in all material
respects.
14. The Partnership is properly treated as a partnership for federal income
tax purposes and not as a corporation or as an association taxable as a
corporation, throughout the period from May 20, 1996 through the date
hereof.
15. To our knowledge, the Issuer was not required to obtain any consent,
approval, authorization or order of a Delaware or California
governmental agency for the execution, delivery and performance as of
the Closing Date by the Issuer of the Purchase Agreement, the Indenture
or the Registration Rights Agreement, as applicable, or the issuance,
delivery and sale of the Notes being issued and sold by the Issuer under
the Purchase Agreement except for any such consent, approval,
authorization or order which may be required under the so-called "Blue
Sky" or securities laws of any states (as to which we express no opinion
or advice).
16. The Issuer is not and, upon sale of the Notes to be issued and sold in
accordance with the Purchase Agreement and the application of the net
proceeds to the Issuer of such sale as described in the Offering
Memorandum under the caption "Use of Proceeds," will not be an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
17. To our knowledge, based solely on an officer's certificate, except as
disclosed in the Offering Memorandum, there are no contracts, agreements
or understandings between the Issuer and any person granting such person
the right to require the Issuer to file a registration statement under
the Securities Act with respect to any securities of the Issuer owned or
to be owned by such person or to require the Issuers to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Issuer under the Securities Act.
The foregoing opinions will be subject to certain additional
assumptions, exceptions, limitations and qualifications. In addition, the
opinions to be rendered in paragraphs 4, 5, 6 and 8 relating to the
enforceability of the Indenture, the Registration Rights Agreement, the Notes,
the Exchange Notes and the entitlement of the Notes and the Exchange Notes to
the benefits of the
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Indenture, will be subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer, preferential transfer or
distribution laws or other similar laws now or hereafter in effect relating to
or affecting the rights and remedies of creditors generally, including without
limitation, the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
applicable state law; (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or contribution to
a party with respect to a liability where such indemnification or contribution
is contrary to public policy; and (iv) we express no opinion concerning the
enforceability of the waiver of rights or defenses contained in Section 514 of
the Indenture.
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SCHEDULE A-I
CALIFORNIA AND DELAWARE SUBSIDIARIES OF
ARDEN REALTY LIMITED PARTNERSHIP
NAME JURISDICTIONS
Arden Realty Finance III, LLC Delaware
Arden Realty Finance IV, LLC Delaware
Arden Realty Finance V, LLC Delaware
Arden Realty Finance VI, LLC Delaware
Arden Realty Finance Partnership, L.P. California
000 Xxxxx Xxxxxxx, LLC California
Activity Business Center Limited Partnership California
Westwood Center Limited Partnership California
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EXHIBIT B
OPINION MATTERS
XXXXXXX XXXXX XXXXXXX & XXXXXXXXX
1. The Issuer is a limited partnership duly formed and existing under and
by virtue of the laws of the State of Maryland and is in good standing
with the SDAT. Based solely on a good standing certificate issued by the
Secretary of State of the State of Maryland, the Issuer is qualified to
do business and is in good standing in Maryland. The Issuer has full
power as a limited partnership to conduct its business as described in
the Offering Memorandum.
2. The second amended and restated partnership agreement of the Issuer (the
"Partnership Agreement") has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid agreement
thereof, is enforceable against each party in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
3. The Purchase Agreement has been duly authorized, executed and delivered
by the Issuer.
4. The Indenture has been duly authorized, executed and delivered by the
Issuer.
5. The Series A Notes and the Series B Notes have been duly authorized,
executed and delivered by the Issuer.
6. The Exchange Notes have been duly authorized by the Issuer.
7. The Registration Rights Agreement has been duly authorized, executed and
delivered by the Issuer.
8. The issuance and sale of the Notes being delivered on the Closing Date
by the Issuer, the execution, delivery and performance of the Purchase
Agreement and the other Operative Documents by the Issuer and the
compliance by the Issuer with all provisions thereof as of the Closing
Date will not result in any violation of the provisions of the Issuer's
certificate of limited partnership or Partnership Agreement or any
Maryland statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over the
Issuer or any of its properties or assets.
9. To our knowledge, the Issuer was not required to obtain any consent,
approval, authorization or order of a Maryland governmental agency for
the execution, delivery and performance as of the Closing Date by the
Issuer of the Purchase Agreement, the Indenture or the Registration
Rights Agreement, as applicable, or the issuance, delivery and sale of
the Notes being issued and sold by the Issuer under the Purchase
Agreement
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except for any such consent, approval, authorization or order which may
be required under the so-called "Blue Sky" or securities laws of any
states (as to which we express no opinion or advice).
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