Exhibit 10.1
$750,000,000
BOSTON PROPERTIES LIMITED
PARTNERSHIP
2.875% EXCHANGEABLE SENIOR NOTES
DUE 2037
PURCHASE AGREEMENT
January 31,
2007
$750,000,000
BOSTON PROPERTIES LIMITED
PARTNERSHIP
2.875% Exchangeable Senior Notes due
2037
Purchase Agreement
January 31, 2007
J.P. Morgan Securities
Inc.
270 Park Avenue
New York, NY 10017
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Boston Properties Limited
Partnership, a Delaware limited partnership (the
“Company”), proposes to issue and sell to you, as the
initial purchasers (the “Initial Purchasers”),
$750,000,000 principal amount of its 2.875% Exchangeable Senior
Notes due 2037 (the “Firm Securities”) and has granted
you an option to purchase up to an additional $112,500,000
principal amount of its 2.875% Exchangeable Senior Notes due 2037,
solely to cover over-allotments (the “Additional
Securities”). The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the
“Securities”. The Securities will be issued pursuant to
the Indenture dated as of December 13, 2002 between the
Company and The Bank of New York Trust Company, N.A., as trustee
(the “Trustee”), as supplemented by Supplemental
Indenture No. 6 relating to the Securities to be dated as of
February 6, 2007 between the Company and the Trustee
(collectively, the “Indenture”). The Securities will be
issued in book-entry form and will be issued to Cede &
Co., as nominee of The Depository Trust Company
(“DTC”), pursuant to a letter agreement, to be dated as
of the Closing Date (as defined herein) between the Company and
DTC. The Securities will be exchangeable pursuant to the terms of
the Indenture into cash and shares (the “Underlying
Securities”) of common stock of Boston Properties, Inc., a
Delaware corporation (the “Parent”), par value $.01 per
share (the “Common Stock”), if any.
The Securities will be sold to the
Initial Purchasers without being registered under the Securities
Act of 1933, as amended (the “Securities Act”), in
reliance upon an exemption therefrom. The Company has prepared a
preliminary offering memorandum dated February 1, 2007 (the
“Preliminary Offering Memorandum”) and will prepare an
offering memorandum dated the date hereof (the “Offering
Memorandum”) setting forth information concerning the Company
and the Securities. Copies of the Preliminary Offering Memorandum
have been, and
copies of the Offering Memorandum will be,
delivered by the Company to the Initial Purchasers pursuant to the
terms of this Agreement. References herein to the Preliminary
Offering Memorandum, the Time of Sale Information (as defined
herein) and the Offering Memorandum shall be deemed to refer to and
include any document incorporated by reference therein.
At or prior to the time when sales
of the Securities were first made (the “Time of Sale”),
the following information shall have been prepared (collectively
with the pricing information set forth on Annex A hereto,
the “Time of Sale Information”): the Preliminary
Offering Memorandum, as supplemented and amended by the written
communications listed on Annex A hereto.
Holders of the Securities (including
the Initial Purchasers and their direct and indirect transferees)
will be entitled to the benefits of a Registration Rights
Agreement, to be dated as of the Closing Date and substantially in
the form attached hereto as Exhibit A (the
“Registration Rights Agreement”), pursuant to which the
Company will agree to file one or more registration statements with
the Securities and Exchange Commission (the
“Commission”) providing for the registration under the
Securities Act of the Securities or the Exchange Securities
referred to (and as defined) in the Registration Rights
Agreement.
In addition, holders of the
Securities (including the Initial Purchasers and their direct and
indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated as of the Closing Date,
providing for the registration under the Securities Act of any
shares of Boston Properties, Inc. common stock that have not been
registered under the Securities Act delivered upon exchange of the
Securities.
1. Representations and
Warranties . The Company represents and warrants to each
Initial Purchaser as of the date hereof and as of the Closing Date
and each Option Closing Date (as defined herein) and agrees with
each Initial Purchaser that:
(a) The Preliminary Offering
Memorandum, as of its date, did not, the Time of Sale Information,
at the Time of Sale, did not, and at the Closing Date, will not,
and the Offering Memorandum, in the form first used by the Initial
Purchasers to confirm sales of the Securities and as of the Closing
Date, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser expressly for use in
the Preliminary Offering Memorandum, the Time of Sale Information
or the Offering Memorandum.
(b) Other than the Preliminary
Offering Memorandum and the Offering Memorandum, the Company
(including its agents and representatives, other than the Initial
Purchasers in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any written communication that
constitutes an offer to sell or solicitation of an offer to buy the
Securities other than the documents listed on Annex A
hereto, including a term sheet substantially in the form of
Annex B hereto, and other written communications used in
accordance with Section 4(c).
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(c) The documents incorporated by
reference in each of the Time of Sale Information and the Offering
Memorandum, when filed with the Commission, conformed or will
conform, as the case may be, in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The consolidated financial
statements incorporated by reference in each of the Time of Sale
Information and the Offering Memorandum, together with the related
notes, present fairly the financial position of the Company and its
subsidiaries at the dates indicated or for the periods specified,
as the case may be; said financial statements have been prepared in
conformity with generally accepted accounting principles of the
United States of America (“GAAP”) applied on a
consistent basis throughout the periods involved. The selected
financial data included or incorporated by reference in the each of
the Time of Sale Information and the Offering Memorandum present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
incorporated by reference in the Offering Memorandum. The
pro forma financial information and the related notes
thereto incorporated by reference in each of the Time of Sale
Information and the Offering Memorandum has been prepared in
accordance with the Commission’s rules and guidance with
respect to pro forma financial information, and the assumptions
underlying such pro forma financial information are
reasonable, and are set forth in each of the Time of Sale
Information and the Offering Memorandum.
(e) Since December 31, 2006,
except as described in the Time of Sale Information or in documents
incorporated by reference therein, (i) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries (as hereinafter defined) considered as
one enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (ii) no
material casualty loss or material condemnation or other material
adverse event with respect to any of the commercial real estate
properties owned by the Company as of the date of this Agreement
(the “Properties”) has occurred, and (iii) there
have been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and the Subsidiaries
considered as one enterprise.
(f) The Company has been duly
organized and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware and has
partnership power and authority to own, lease and operate its
properties and to conduct its business as described in each of the
Time of Sale Information and the Offering Memorandum and to enter
into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign partnership to transact
business and is in good standing in each other jurisdiction in
which such qualification 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 to be in good standing would not
result in a Material Adverse Effect.
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(g) Each of the subsidiaries of the
Company set forth on Schedule 2 hereto (each a
“Subsidiary” and, collectively, the
“Subsidiaries”), has been duly organized and is validly
existing as a general or limited partnership, limited liability
company or corporation, as the case may be, in good standing (in
the case of corporations and limited partnerships) under the laws
of the jurisdiction of its organization, has partnership or
corporate power and authority, as the case may be, to own, lease
and operate its properties and to conduct its business as described
in each of the Time of Sale Information and the Offering Memorandum
and is duly qualified as a foreign entity to transact business and
is in good standing in each jurisdiction in which such
qualification 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 to be in good standing would not result in
a Material Adverse Effect. The Subsidiaries collectively own not
less than 90% of the consolidated assets of the Company and its
subsidiaries as of December 31, 2006. All of the issued and
outstanding capital stock of each of the Subsidiaries that is a
corporation has been duly authorized and validly issued, is fully
paid and non-assessable, and all of the partnership interests in
each Subsidiary that is a partnership are validly issued and fully
paid. Except as otherwise disclosed in Schedule 3 hereto or
in each of the Time of Sale Information and the Offering
Memorandum, all such shares and interests, as the case may be, are
owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except where such security interest,
mortgage, pledge, lien, encumbrance, claim or equity would not
reasonably be expected to result in a Material Adverse Effect. None
of the outstanding shares of capital stock or partnership interests
of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary.
(h) The partnership interests of the
Company have been duly authorized and validly issued and are fully
paid; none of the outstanding partnership interests of the Company
was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(i) The Company has full right,
power and authority to execute and deliver this Agreement, the
Securities, the Indenture and the Registration Rights Agreement
(collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action
required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly
and validly taken.
(j) The Indenture has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and equitable
principles of general applicability (the “Enforceability
Exceptions”). 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 “Trust Indenture Act”),
and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(k) The Securities have been duly
authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
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(l) This Agreement has been duly
authorized, executed and delivered by the Company; and the
Registration Rights Agreement has been duly authorized by the
Company and on the Closing Date will be duly executed and delivered
by the Company and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to the
Enforceability Exceptions, and except that rights to indemnity and
contribution thereunder may be limited by applicable law and public
policy.
(m) Each Transaction Document
conforms in all material respects to the description thereof
contained in each of the Time of Sale Information and the Offering
Memorandum.
(n) Neither the Company nor any of
its Subsidiaries is in violation of its organizational documents or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or
any Subsidiary is subject (collectively, “Agreements and
Instruments”) except for such defaults that would not result
in a Material Adverse Effect. The execution, delivery and
performance of each of the Transaction Documents, the issuance and
sale of the Securities (including the issuance of the Underlying
Securities upon exchange thereof) and the consummation of the
transactions contemplated by the Transaction Documents (including
the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in each of the Time of
Sale Information and the Offering Memorandum under the caption
“Use of Proceeds”) and compliance by the Company with
its obligations under the Transaction Documents do not and will
not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the commercial real estate properties owned by the Company as of
the date of this Agreement (the “Properties”) or any
other property or assets of the Company or any Subsidiary pursuant
to, the Agreements and Instruments or violation of any applicable
law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or
any of their assets, properties or operations (except for such
conflicts, breaches or defaults or liens, charges, encumbrances or
violations that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
organizational documents of the Company or any Subsidiary. As used
herein, the term “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any Subsidiary.
(o) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations under the Transaction Documents, in
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connection with the offering, issuance or sale
of the Securities (including the issuance of the Underlying
Securities upon exchange thereof) and compliance by the Company
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except such as have been
already obtained or as may be required under applicable state
securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers.
(p) Except as described in each of
the Time of Sale Information and the Offering Memorandum, there is
no action, suit or proceeding before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against or affecting
the Company or any Subsidiary, which might reasonably be expected,
if determined adversely to the Company or any Subsidiary to result
in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the Properties or assets thereof
or the consummation of the transactions contemplated in this
Agreement or the performance by the parties of their obligations
hereunder.
(q) (i) The Company and the
Subsidiaries have either good and marketable title in fee simple or
good and marketable leasehold title, as applicable, to all of the
Properties and good and marketable title to all other real
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described
in the Time of Sale Information or (b) do not, singly or in
the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its Subsidiaries; (ii) all
mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances on or affecting the properties and assets of the
Company or any of the Subsidiaries that are required to be
disclosed in the Time of Sale Information are disclosed therein;
(iii) the Company does not know of any violation of any
municipal, state or federal law, rule or regulation (including
those pertaining to environmental matters) concerning the
Properties or any part thereof which would have a Material Adverse
Effect; (iv) each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed
restrictions or other covenants in all material respects and, if
and to the extent there is a failure to comply, such failure does
not result in a Material Adverse Effect and will not result in a
forfeiture or reversion of title; (v) none of the Company or
any Subsidiary has received from any governmental authority any
written notice of any condemnation of or zoning change affecting
the Properties or any part thereof which could have a Material
Adverse Effect, and none of the Company or any Subsidiary knows of
any such condemnation or zoning change which is threatened and
which if consummated would have a Material Adverse Effect; and
(vi) no lessee of any portion of any of the Properties is in
default under any of the leases governing such Properties and there
is no event which, but for the passage of time or the giving of
notice or both, would constitute a default under any of such
leases, except such defaults that would not have a Material Adverse
Effect.
(r) Except as set forth in each of
the Time of Sale Information and the Offering Memorandum, the
mortgages and deeds of trust encumbering the properties and assets
described in each of the Time of Sale Information and the Offering
Memorandum are not convertible and neither the Company, any of its
Subsidiaries, or any person affiliated therewith holds a
participating interest therein, and such mortgages and deeds of
trust are not cross-defaulted or cross-collateralized to any
property not owned directly or indirectly by the Company or any of
its Subsidiaries.
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(s) The Company and its Subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”)
issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its Subsidiaries has received any written notice
of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(t) No material labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent.
(u) Except as otherwise disclosed in
each of the Time of Sale Information and the Offering Memorandum or
except as would not, singly or in the aggregate, have a Material
Adverse Effect, (i) to the best knowledge of the Company, the
Company and its Subsidiaries have been and are in compliance with
applicable Environmental Statutes; (ii) to the best knowledge
of the Company, neither the Company, any of its Subsidiaries, nor
any other owners of the property at any time or any other party has
at any time released (as such term is defined in
Section 101(22) of CERCLA (as hereinafter defined)) or
otherwise disposed of Hazardous Materials (as hereinafter defined)
on, to or from the Properties; (iii) the Company does not
intend to use the Properties or any subsequently acquired
properties, other than in compliance with applicable Environmental
Statutes (as hereinafter defined); (iv) neither the Company
nor any of its Subsidiaries knows of any seepage, leak, discharge,
release, emission, spill, or dumping of Hazardous Materials into
waters (including, but not limited, to groundwater and surface
water) on, beneath or adjacent to the Properties or onto lands from
which Hazardous Materials might seep, flow or drain into such
waters; (v) neither the Company nor any of its Subsidiaries
has received any notice of, or has any knowledge of any occurrence
or circumstance which, with notice or passage of time or both,
would give rise to a claim under or pursuant to any Environmental
Statute with respect to the Properties or the assets described in
the Time of Sale Information or arising out of the conduct of the
Company or its Subsidiaries; (vi) neither the Properties nor
any other land owned by the Company or any of its Subsidiaries is
included or, to the best of the Company’s knowledge, proposed
for inclusion on the National Priorities List issued pursuant to
CERCLA by the United States Environmental Protection Agency (the
“EPA”) or to the best of the Company’s knowledge,
proposed for inclusion on any similar list or inventory issued
pursuant to any other Environmental Statute or issued by any other
Governmental Authority (as hereinafter defined).
As used herein, “Hazardous
Material” shall include, without limitation any flammable
explosives, radioactive materials, hazardous materials, hazardous
wastes, toxic substances, or related materials, asbestos or any
hazardous material as defined by any federal, state or local
environmental law, ordinance, rule or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C.
§§ 9601-9675 (“CERCLA”), the Hazardous
Materials Transportation Act, as
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amended, 49 U.S.C. §§ 1801-1819,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
§§ 6901-K, the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050,
the Toxic Substances Control Act, 15 U.S.C.
§§ 2601-2671, the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. §§ 136-136y, the Clean Air
Act, 42 U.S.C. §§ 7401-7642, the Clean Water Act
(Federal Water Pollution Control Act), 33 U.S.C.
§§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
§§ 300f-300j-26, and the Occupational Safety and
Health Act, 29 U.S.C. §§ 651-678, as any of the
above statutes may be amended from time to time, and in the
regulations promulgated pursuant to each of the foregoing
(including environmental statutes not specifically defined herein)
(individually, an “Environmental Statute” and
collectively “Environmental Statutes”) or by any
federal, state or local governmental authority having or claiming
jurisdiction over the properties and assets described in the Time
of Sale Information (a “Governmental
Authority”).
(v) The Company and each of the
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they will be
engaged; and neither the Company nor any of the Subsidiaries has
any reason to believe that any of them will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue its business, assuming that such coverage
continues to be available on commercially reasonable terms at the
time.
(w) The Company and each of the
Subsidiaries has filed all material foreign, federal, state and
local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to
file would not have a Material Adverse Effect) and has paid all
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in
or contemplated by each of the Time of Sale Information and the
Offering Memorandum.
(x) No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in any of the Time
of Sale Information and the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(y) PricewaterhouseCoopers LLP, who
have certified the financial statements and supporting schedules,
if any, of the Company and its Subsidiaries included in each of the
Time of Sale Information and the Offering Memorandum, are
independent registered public accountants with respect to the
Company and its Subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Accounting
Oversight Board (United States) and as required by the Securities
Act.
(z) The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in each of
the Time of Sale Information and the Offering Memorandum will not
be, an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended (the “1940
Act”).
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(aa) None of the Company or any of
its Subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that
would give rise to a valid claim against any of them or the Initial
Purchasers for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the
Securities.
(bb) Neither the Company nor any of
its partners, officers or affiliates has taken or will take,
directly or indirectly, any action designed to or that could
reasonably be expected, under the Exchange Act or otherwise, to
cause or result in any stabilization or manipulation of the price
of the Securities.
(cc) On the Closing Date, the
Securities will not be of the same class as securities listed on a
national securities exchange registered under Section 6 of the
Exchange Act or quoted in an automated inter-dealer quotation
system; and each of the Time of Sale Information and the Offering
Memorandum, each as of its respective date, contains or will
contain all the information that, if requested by a prospective
purchaser of the Securities, would be required to be provided to
such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(dd) Neither the Company nor any of
its affiliates (as defined in Rule 501(b) of Regulation D) has,
directly or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act), that is or will be integrated
with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(ee) None of the Company or any of
its affiliates or any other person acting on its or their behalf
(other than the Initial Purchasers, as to which no representation
is made) has (i) solicited offers for, or offered or sold, the
Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in
any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(ff) Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained
in Section 2(b) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance
and sale of the Securities to the Initial Purchasers and the offer,
resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum, to register the Securities
under the Securities Act or to
