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EXHIBIT 10.41
ARDEN REALTY LIMITED PARTNERSHIP
as Issuer
$100,000,000
8.500% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
November 15, 2000
XXXXXX BROTHERS INC.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 to Xxxxxx
Brothers Inc. (the "Initial Purchaser"), upon the terms and conditions set forth
in this agreement ("Agreement"), $100,000,000 of the Issuer's 8.500% Senior
Notes due 2010 (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"), dated as of March 14,
2000, between 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 Purchaser. 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 and pay down an unsecured line of credit of the Issuer.
The Notes will be offered and sold to the Initial Purchaser pursuant to
an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Securities Act"). The Issuer has prepared an offering
memorandum, dated November 15, 2000 (the "Offering Memorandum"), setting forth
information regarding the Issuer and the Notes. Any references herein to 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 Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchaser.
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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 to persons whom you
reasonably believe to be "qualified institutional buyers" ("QIB's") as defined
in Rule 144A under the Securities Act (the "Eligible Purchasers").
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 Purchaser, 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 Statement") relating to the
Issuer's new 8.500% Senior Notes due 2010 (the "Exchange Notes") to be offered
in exchange for the Notes (such offer to exchange being referred to as the
"Exchange Offer") 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 Offer.
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 Offering Memorandum with respect to the Notes has been
prepared by the Issuer for use by the Initial Purchaser in connection with the
Exempt Resales. No order or decree preventing the use of 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 Offering Memorandum, as of its date and 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 Offering
Memorandum (or any supplement or amendment thereto) made in reliance upon and in
conformity with information relating to the Initial Purchaser furnished to the
Issuer in writing by or on behalf of the Initial Purchaser expressly for use
therein.
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(c) The market-related data and estimates included in 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 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 14 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
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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.
(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, executed and
delivered by the Issuer and constitutes 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). The Indenture conforms 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 conforms 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 Purchaser 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 will be 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 Offer
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
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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 Purchaser) will be the valid and binding
obligation of the Issuer, enforceable against the Issuer 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
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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, 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,
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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 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
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the Offering Memorandum, or such as would not materially affect the value of
such property and do not have a Material Adverse Effect; 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 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 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.
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(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 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
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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.
(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.
(gg) 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.
(hh) 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.
(ii) Assuming (i) that your representations and warranties in Section
2 are true, (ii) compliance by you with your covenants set forth in Section 2
and (iii) that each of the Eligible Purchasers is a QIB, the purchase of the
Notes by the Initial Purchaser 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.
(jj) The Indenture has been qualified under the TIA.
(kk) None of the Issuer nor any of its affiliates or any person acting
on their behalf (other than the Initial Purchaser, 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.
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(ll) Each certificate signed by any officer of the General Partner of
the Issuer and delivered to the Initial Purchaser or counsel for the Initial
Purchaser shall be deemed to be a representation and warranty by the Issuer to
the Initial Purchaser as to the matters covered thereby.
(mm) 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.
(nn) 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.
(oo) 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.
(pp) 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.
(qq) 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.
(rr) 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.
2 Subsequent Offers and Resales of the Notes.
(a) Each of the Initial Purchaser and the Issuer hereby establishes
and agrees to observe the following procedures in connection with the sale of
the Notes:
(i) Offers and sales of the Notes shall only be made to
persons whom the offeror or seller reasonably believes to be QIBs.
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(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 Initial Purchaser, be a QIB.
(iv) The Initial Purchaser will take reasonable steps to
inform, and cause each of its affiliates to take reasonable steps to
inform, persons acquiring Notes from the Initial Purchaser or
affiliate, as the case may be, 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 and (C) may not be offered, sold or otherwise transferred except
(1) to the Issuer, (2) 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 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
principal amount of the Notes, as applicable.
(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
Purchaser.
(b) The Issuer covenants with the 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 Purchaser, (ii) the
resale of the Notes by the Initial Purchaser 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 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
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purchasers of Notes the information specified in Rule 144(d)(4),
unless the Issuer furnishes information to the SEC pursuant to Section
13 or 15(d) of the Exchange Act.
(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) The Initial Purchaser 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) The 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 pursuant to an exemption from the registration requirements of the
Securities Act. The Initial Purchaser represents and agrees that, except as
permitted by Section 2(a) above, it has not offered and sold Notes and will not
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 144A
under the Securities Act or another applicable exemption from the registration
requirements of the Securities Act.
(e) The Initial Purchaser represents and warrants 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.
3 Purchase of the Notes by the Initial Purchaser.
(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 the Initial Purchaser, and the Initial Purchaser agrees to purchase at
the price set forth in Schedule A attached hereto, $80,000,000 aggregate
principal amount of Notes.
(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 Purchaser 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 November 20,
2000 (the "Closing Date") in person or via overnight courier or facsimile by
agreement between the Initial Purchaser and the Issuer. The place and method of
closing for the Notes and the Closing Date may be varied by agreement between
the Initial Purchaser and the Issuer.
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(b) The Notes will be delivered to the Initial Purchaser 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 Purchaser 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 Purchaser shall be made available to
the Initial Purchaser 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 Purchaser hereunder.
5 Further Agreements of the Issuer. The Issuer agrees with the
Initial Purchaser as follows:
(a) The Issuer will advise the 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 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 the 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 the Initial Purchaser may reasonably request.
(c) The Issuer will not make any amendment or supplement to the
Offering Memorandum of which the Initial Purchaser or its counsel shall not
previously have been advised and to which they shall reasonably object after
being so advised.
(d) 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 Purchaser and by all dealers to whom Notes
may be sold, in connection with the offering and sale of the Notes.
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(e) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchaser to Eligible Purchasers, any event shall occur
that in the reasonable judgment of the Issuer or in the opinion of counsel for
the Initial Purchaser 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
Purchaser), 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 the Initial Purchaser and dealer a
reasonable number of copies thereof.
(f) The Issuer will cooperate with the Initial Purchaser and with its
counsel in connection with the qualification of the Notes for offering and sale
by the Initial Purchaser and by dealers under the securities or Blue Sky laws of
such jurisdictions as the Initial Purchaser 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.
(g) 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
the Initial Purchaser.
(h) So long as any of the Notes are outstanding, the Issuer will
furnish to the Initial Purchaser (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 Purchaser may reasonably request.
(i) 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."
(j) Except as stated in this Agreement and in the 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
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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.
(k) The Issuer will use its best efforts to permit the Notes to be
eligible for clearance and settlement through DTC.
(l) 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.
(m) 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 Purchaser or the Eligible Purchasers of the Notes.
(n) 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.
(o) The Issuer agrees to cause the Exchange Offer 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
Notes and to comply with all applicable federal and state securities laws in
connection with such Exchange Offer.
(p) 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.
(q) 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.
(r) 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 Purchaser's obligations
hereunder to purchase the Notes.
(s) 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. ("Moody's") to provide their respective
investment-grade credit ratings of the Notes.
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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 Offering Memorandum (including, without limitation,
financial statements and exhibits) and all amendments and supplements thereto
(but not, however, legal fees and expenses of Initial Purchaser's 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 Purchaser's 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 limitation, the reasonable fees and disbursements of Initial
Purchaser's counsel relating to such registration or qualification), (v)
furnishing such copies of 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 Purchaser's Obligations. The obligations of
the Initial Purchaser 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 Purchaser 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 Purchaser, 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 Purchaser, and
the Issuer shall have furnished to such counsel all
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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 Purchaser,
its written opinion (based on the assumptions and subject to the exclusions
contained therein), as counsel to the Issuer, addressed to the Initial Purchaser
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 Purchaser, 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 Purchaser and dated the Closing Date, substantially as
to the matters set forth in Exhibit B hereto.
(f) The Initial Purchaser shall have received from Xxxxx & Xxxxxxx
L.L.P., counsel for the Initial Purchaser, 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 Purchaser 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 Purchaser
shall have received from Ernst & Young LLP a letter, in form and substance
satisfactory to the Initial Purchaser, addressed to the Initial Purchaser 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 Purchaser concurrently with the
execution of this Agreement (the "initial letter"), the Issuer shall have
furnished to the Initial Purchaser a letter (the "bring-down letter") of such
accountants, addressed to the Initial Purchaser 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.
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(i) The Issuer shall have furnished to the Initial Purchaser 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 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 Purchaser,
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
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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 Purchaser, 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 BBB- by S&P
and Baa3 by Xxxxx'x and the Issuer shall have delivered to the Initial Purchaser
a letter dated on or before the Closing Date from each such rating agency, or
other evidence satisfactory to the Initial Purchaser, 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 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 Purchaser.
(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 Purchaser.
8 Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless the Initial
Purchaser, its officers and employees and each person, if any, who controls the
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 the 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
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contained (A) in 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 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 the 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 the Initial Purchaser
through its gross negligence or willful misconduct), and shall reimburse the
Initial Purchaser and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the 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 the Initial Purchaser furnished to the Issuer by or on
behalf of the Initial Purchaser specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the Issuer
may otherwise have to the Initial Purchaser or to any officer, employee or
controlling person of the Initial Purchaser.
(b) The Initial Purchaser 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 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
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 the Initial Purchaser furnished to the Issuer by or on behalf of the
Initial Purchaser specifically for inclusion therein, and shall reimburse the
Issuer and any such director,
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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 the Initial
Purchaser may otherwise have to the Issuer or any such director, officer,
employee or controlling person.
(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 Purchaser, if the indemnified parties under this Section
8 consist of the Initial Purchaser or any of its 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
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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
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 Purchaser, 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 Purchaser, 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 Purchaser, 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
Purchaser 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 Purchaser, 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 Purchaser 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 Purchaser 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
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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.
9 Termination. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser 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 Purchaser 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 except that Section 1, 8 and 13 shall survive any such termination and
remain in full force and effect.
10 Reimbursement of Initial Purchaser's Expenses. If the Issuer shall
fail to tender the Notes for delivery to the Initial Purchaser by reason of any
failure, refusal or inability on the part of the Issuer to perform any agreement
on its part to be performed, or because any 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
Purchaser for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Initial Purchaser 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 Purchaser. If this
Agreement is terminated pursuant to Section 9 by reason of the default of the
Initial Purchaser, the Issuer shall not be obligated to reimburse any such
Initial Purchaser on account of those expenses.
11 Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, 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
(b) 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.
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12 Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Initial Purchaser, 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 the Initial Purchaser within the meaning of Section
15 of the Securities Act and (B) the indemnity agreement of the Initial
Purchaser 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 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
13 Survival. The respective indemnities, representations, warranties
and agreements of the Issuer and the Initial Purchaser contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the 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.
14 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.
15 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.
16 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
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to be an original but all such counterparts shall together constitute one and
the same instrument.
17 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 Purchaser, 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/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Co-Chief
Financial and Treasurer
Accepted and Agreed:
XXXXXX BROTHERS INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Authorized Representative
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SCHEDULE A
ARDEN REALTY LIMITED PARTNERSHIP
$80,000,000 8.500% SENIOR NOTES DUE 2010
1. The initial offering price of the 8.500% Senior Notes due 2010
shall be 99.164% 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 Purchaser for the
8.500% Senior Notes due 2010 shall be 98.514% of the principal amount thereof.
3. The interest rate on the 8.500% Senior Notes due 2010 shall be
8.500% per annum.
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EXHIBIT A
OPINION MATTERS
XXXXXX & XXXXXXX
[TO BE PROVIDED]
1
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EXHIBIT B
OPINION MATTERS
XXXXXXX XXXXX XXXXXXX & INGERSOLL
[TO BE PROVIDED]
1
