Exhibit 1.1
EXECUTION COPY
$700,000,000
BOSTON PROPERTIES LIMITED
PARTNERSHIP
5.875% SENIOR NOTES DUE
2019
UNDERWRITING
AGREEMENT
October 6,
2009
October 6, 2009
Banc of America Securities
LLC
One Bryant Park
New York, New York 10036
Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Boston Properties Limited
Partnership, a Delaware limited partnership (the
“Partnership”), proposes to issue and sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you are acting as managers
(the “Managers”), the principal amount of its 5.875%
Senior Notes due 2019, set forth in Schedule I hereto (the
“Securities”) to be issued under an indenture (the
“Base Indenture”), dated as of December 13, 2002,
between the Partnership and The Bank of New York Mellon Trust
Company, N.A. as trustee (the “Trustee”), as
supplemented by supplemental indenture no. 8 to be dated as of
October 9, 2009 (the “Supplemental Indenture” and
together with the Base Indenture, the “Indenture”),
between the Partnership and the Trustee. If the firm or firms
listed in Schedule II hereto include only the Managers
listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used
herein shall each be deemed to refer to such firm or
firms.
The Partnership confirms its
agreement with you and understands that the Underwriters propose to
make a public offering of the Securities as soon as the
Underwriters deem advisable after this Agreement has been executed
and delivered.
The Partnership has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-155307-01), including a
prospectus, relating to the debt securities and other securities
(the “Shelf Securities”), including the Securities. The
registration statement as amended, including the information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under
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the Securities Act of 1933, as amended (the
“Securities Act”), is hereinafter referred to as the
“Registration Statement,” and the related prospectus
covering the Shelf Securities dated November 17, 2008 in the
form first used to confirm sales of the Securities (or in the form
first made available to the Underwriters by the Partnership to meet
requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Securities in
the form first used to confirm sales of the Securities (or in the
form first made available to the Underwriters by the Partnership to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the
“Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the Prospectus
filed with the Commission pursuant to Rule 424(b).
For purposes of this Agreement,
(i) “free writing prospectus” has the meaning set
forth in Rule 405 under the Securities Act, (ii) “Time
of Sale Prospectus” means the preliminary prospectus together
with the free writing prospectuses, each identified in Schedule
III hereto, and the pricing information included in Schedule
I hereto, and (iii) “broadly available road
show” means a “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act that has been
made available without restriction to any person. As used herein,
the terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and Prospectus shall include
the documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and
“amend” as used herein with respect to the Registration
Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or free writing prospectus shall include all
documents subsequently filed by the Partnership with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), that are incorporated by reference
therein.
1. Representations and
Warranties . The Partnership represents and warrants to each
Underwriter as of the date hereof, and as of the Closing Date
(defined herein) and agrees with each Underwriter that:
(a) The Registration Statement has
become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Partnership, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the
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Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement as of the date
hereof does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iv) the Registration Statement and the Time of Sale
Prospectus comply, and as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder,
(v) the Time of Sale Prospectus does not, and at the time of
each sale of the Securities in connection with the offering when
the Prospectus is not yet available to prospective purchasers and
at the Closing Date (as hereinafter defined), the Time of Sale
Prospectus, as then amended or supplemented by the Partnership, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, (vi) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in
the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to the Underwriters
furnished to the Partnership in writing by the Underwriters through
you expressly for use therein.
(c) The Partnership is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any
free writing prospectus that the Partnership is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Partnership has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or behalf
of or used or referred to by the Partnership complies or will
comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder. Except for the free writing prospectuses, if
any, identified in
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Schedule III hereto, and electronic road shows, if any,
furnished to you before first use, the Partnership has not
prepared, used or referred to, and will not, without your prior
consent, use or refer to, any free writing prospectus.
(d) PricewaterhouseCoopers LLP, who
certified the financial statements and supporting schedules, if
any, of the Partnership and its Subsidiaries included or
incorporated by reference in the Time of Sale Prospectus are
independent registered public accountants with respect to the
Partnership 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 and the Securities Act Regulations.
(e) The consolidated financial
statements included or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, together with the related notes, present fairly the
financial position of the Partnership 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 and
the summary financial information included or incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements included or incorporated by
reference in the Registration Statement. Other than the historical
financial statements included or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, no other historical financial statements are required
by the Securities Act or the Securities Act Regulations to be
included or incorporated by reference therein.
(f) Since June 30, 2009, except
as described in the Time of Sale Prospectus 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
Partnership 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 Partnership as
of the date of this Agreement (the “Properties”) has
occurred, and (iii) there have been no transactions entered
into by the Partnership or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Partnership and its Subsidiaries considered as one
enterprise.
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(g) The Partnership has been duly
formed 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 the Time of
Sale Prospectus and to enter into and perform its obligations under
this Agreement; and the Partnership is duly qualified as a foreign
limited 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.
(h) Each of the subsidiaries of the
Partnership set forth on Schedule IV 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 the Time of Sale Prospectus 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 Partnership and its subsidiaries as of June 30,
2009. 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 V hereto or in the Time of Sale Prospectus, all
such shares and interests, as the case may be, are owned by the
Partnership, 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.
(i) The Partnership has full right,
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly
authorized, executed and delivered by the Partnership.
(j) The Base Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and has been duly
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authorized, executed and delivered by the
Partnership and is a valid and binding agreement of the Partnership
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general application affecting the rights and
remedies of creditors and to general principles of equity. The
Supplemental Indenture has been authorized by the Partnership and,
at the Closing Date, will have been duly executed and delivered by
the Partnership and, assuming due execution and delivery by the
Trustee, will constitute a valid and binding agreement of the
Partnership, enforceable against the Partnership in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general application affecting
the rights and remedies of creditors and to general principles of
equity. The Indenture conforms in all material respects to the
description thereof in the Time of Sale Prospectus and the
Prospectus.
(k) The Securities have been duly
authorized by the Partnership and, on the Closing Date, will have
been duly executed by the Partnership and will conform in all
material respects to the description thereof in the Time of Sale
Prospectus and the Prospectus or in documents incorporated therein
by reference and such description conforms, in all material
respects, to the rights set forth in the instruments defining the
same. When issued and authenticated in accordance with the
provisions of the Indenture, the Securities will be entitled to the
benefits of the Indenture and will be valid and binding obligations
of the Partnership, enforceable in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general application affecting the rights and
remedies of creditors and to general principles of
equity.
(l) The issued and outstanding units
of limited partnership of the Partnership (“OP Units”),
if any, have been duly authorized and validly issued and are fully
paid. OP Units issued and sold in connection with the acquisition
of properties currently under contract to be acquired have been and
will be offered, issued and sold in compliance with all applicable
laws (including, without limitation, federal and state securities
laws).
(m) Neither the Partnership 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 Partnership 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
Partnership 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 this
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Agreement and the consummation of the
transactions contemplated in this Agreement and the Time of Sale
Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption “Use of
Proceeds”) and compliance by the Partnership with its
obligations under this Agreement have been duly authorized by all
necessary partnership action and (except as contemplated by the
Time of Sale Prospectus) 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 Partnership as of the date of this
Agreement (the “Properties”) or any other property or
assets of the Partnership or any Subsidiary pursuant to, the
Agreements and Instruments or violations 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 Partnership or any Subsidiary
or any of their assets, properties or operations (except for such
conflicts, breaches, defaults, Repayment Events, 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 Partnership
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 Partnership or any Subsidiary.
(n) No material labor dispute with
the employees of the Partnership or any Subsidiary exists or, to
the knowledge of the Partnership, is imminent.
(o) 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
Partnership, threatened, against or affecting the Partnership or
any Subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed
in the Time of Sale Prospectus), or which might reasonably be
expected, if determined adversely to the Partnership 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.
(p) Commencing with the taxable year
ended December 31, 1997 and through the date hereof, Boston
Properties, Inc. is organized in conformity with the requirements
for qualification as a real estate investment trust (a
“REIT”) under the Internal Revenue Code of 1986, as
amended (the “Code”), and its
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method of operation has enabled and will enable
it to meet the requirements for taxation as a REIT under the
Code.
(q) There are no contracts or
documents which are required to be described in the Registration
Statement or the Time of Sale Prospectus or to be filed as exhibits
thereto or to documents incorporated by reference therein which
have not been so described and filed as required.
(r) 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
Partnership of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities under this Agreement
or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be
required under the Securities Act, the Securities Act Regulations
or the Trust Indenture Act and foreign or state securities or blue
sky laws.
(s) The Partnership 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 Partnership 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
Partnership 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) (i) The Partnership and its
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 each of the Time of Sale Prospectus and the Prospectus or in
documents incorporated by reference therein 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 Partnership 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 Partnership or any of the Subsidiaries
that are required to be
8
disclosed in the Prospectus are disclosed
therein or in documents incorporated by reference therein;
(iii) the Partnership 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 Partnership
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 Partnership 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.
(u) The Partnership 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 Partnership 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.
(v) The Partnership and each of the
Subsidiaries has filed all 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 the Time of Sale Prospectus.
(w) Except as set forth in the Time
of Sale Prospectus, the mortgages and deeds of trust encumbering
the properties and assets described in the Time of Sale Prospectus
are not convertible and neither the Partnership, 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 Partnership or any
of its Subsidiaries.
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(x) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(y) The Partnership 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 the
Prospectus will not be, an “investment company” as such
term is defined in the Investment Partnership Act of 1940, as
amended (the “1940 Act”).
(z) Except as otherwise disclosed in
the Time of Sale Prospectus, or except as would not, singly or in
the aggregate, have a Material Adverse Effect, (i) to the best
knowledge of the Partnership, the Partnership and its Subsidiaries
have been and are in compliance with applicable Environmental
Statutes; (ii) to the best knowledge of the Partnership,
neither the Partnership, any of the 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 Partnership 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 Partnership nor any of the 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
Partnership nor any of the 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 Prospectus
or arising out of the conduct of the Partnership or its
Subsidiaries; (vi) neither the Properties nor any other land
owned by the Partnership or any of the Subsidiaries is included or,
to the best of the Partnership’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 Partnership’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
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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 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 statues 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
Prospectus (a “Governmental Authority”).
(aa) Except as described in the
Registration Statement, there are no registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement. Except as described in the Registration
Statement, there are no registration rights or other similar rights
to have any securities otherwise registered by the Partnership
under the Securities Act.
(bb) No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Time of Sale
Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(cc) Any certificate signed by any
officer of the general partner of the Partnership or any of its
subsidiaries delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty solely
by the Partnership to the Underwriters as to the matters covered
thereby.
(dd) The Partnership and its
subsidiaries maintain a system of internal accounting and other
controls sufficient to provide reasonable assurances that
(i) transactions are
