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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
7.00% Series E Cumulative Redeemable
Preferred Shares of Beneficial Interest
(Liquidation Preference $25.00 Per Share)
UNDERWRITING AGREEMENT
Dated: August 17, 2004
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TABLE OF CONTENTS
Underwriting Agreement...................................................................................1
SECTION 1. Representations and Warranties.........................................................2
(a) Representations and Warranties by the Company..........................................2
(i) Incorporated Documents...........................................................2
(ii) Compliance with Registration Requirements.......................................3
(iii) Form S-3 Eligibility............................................................3
(iv) No Material Adverse Change in Business..........................................3
(v) Good Standing of the Company.....................................................3
(vi) Qualification as a REIT.........................................................4
(vii) Good Standing of the Operating Partnership.....................................4
(viii) Good Standing of Subsidiaries.................................................4
(ix) Capitalization..................................................................4
(x) Authorization and Description of the Preferred Shares............................5
(xi) Absence of Conflicts and Defaults...............................................5
(xii) Authorization of this Underwriting Agreement...................................5
(xiii) Absence of Proceedings........................................................6
(xiv) No Violations or Defaults.....................................................6
(xv) Accuracy of Certain Descriptions...............................................6
(xvi) Investment Company Act........................................................6
(xvii) Independent Public Accountants................................................6
(xviii) Financial Statements..........................................................6
(xix) Title to Property.............................................................7
(xx) Environmental Laws.............................................................7
(xxi) No Stabilizing Actions........................................................8
(b) Officer's Certificates.................................................................8
SECTION 2. Sale and Delivery to the Underwriters; Closing.........................................8
(a) Initial Securities.....................................................................8
(b) Option Securities......................................................................9
(c) Payment................................................................................9
(d) Denominations; Registration............................................................9
SECTION 3. Covenants of the Company..............................................................10
(a) Delivery of Registration Statements...................................................10
(b) Delivery of Prospectus................................................................10
(c) Continued Compliance with Securities Laws.............................................10
(d) Rule 158..............................................................................11
(e) Use of Proceeds.......................................................................11
(f) Listing...............................................................................11
SECTION 4. Payment of Expenses...................................................................11
(a) Expenses..............................................................................11
(b) Termination of Agreement..............................................................12
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SECTION 5. Conditions of Underwriters' Obligations...............................................12
(a) Effectiveness of Registration Statement...............................................12
(b) Opinions of Counsel for the Company...................................................12
(c) Opinion of Special Maryland Counsel for the Company...................................12
(d) Opinion of Counsel for the Underwriters...............................................12
(e) Officers' Certificate.................................................................12
(f) Accountants' Comfort Letter...........................................................13
(g) Bring-down Comfort Letter.............................................................13
(h) Maintenance of Rating.................................................................13
(i) Approval of Listing...................................................................13
(j) Conditions to Purchase of Option Securities...........................................13
(i) Officers' Certificate...........................................................13
(ii) Opinions of Counsel for the Company............................................14
(iii) Opinion of Counsel for the Underwriter.........................................14
(iv) Bring-down Comfort Letter......................................................14
(v) No Downgrading..................................................................14
(k) Additional Documents..................................................................14
(l) Termination of Agreement..............................................................14
SECTION 6. Indemnification.......................................................................15
(a) Indemnification of Underwriters.......................................................15
(b) Indemnification of Company, Operating Partnership, Trustees, Partners and Officers....16
(c) Actions against Parties; Notification.................................................16
(d) Settlement without Consent if Failure to Reimburse....................................16
SECTION 7. Contribution..........................................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................18
SECTION 9. Termination of Agreement..............................................................18
(a) Termination; General..................................................................18
(b) Liabilities...........................................................................19
SECTION 10. Default by One or More of the Underwriters............................................19
SECTION 11. Notices...............................................................................20
SECTION 12. Parties...............................................................................20
SECTION 13. GOVERNING LAW AND TIME................................................................20
SECTION 14. Effect of Headings....................................................................20
SCHEDULES
Schedule A - List of Underwriters.......................................................Sch A-1
Schedule B - Terms of Preferred Shares..................................................Sch B-1
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EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel..............................................A-1
Exhibit B - Form of Opinion of Special Maryland Counsel to the Company........................B-1
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
3,000,000 Shares
7.00% Series E Cumulative Redeemable
Preferred Shares of Beneficial Interest
(No Par Value Per Share)
Underwriting Agreement
August 17, 2004
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Bear
Xxxxxxx, is acting as Representative (in such capacity, the "Representative"),
with respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the number of 7.00% Series E
Cumulative Redeemable Preferred Shares of Beneficial Interest, no par value per
share, of the Company ("Preferred Shares") set forth above, and with respect to
the grant by the Company to the Underwriters of the option described in Section
2(b) hereof to purchase all or any part of 450,000 additional Preferred Shares
to cover over-allotments, if any. The aforesaid 3,000,000 Preferred Shares (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 450,000 Preferred Shares subject to the option described in Section 2(b)
hereof (the "Option Securities") are hereinafter called collectively the
"Securities."
The Company understands that the Underwriters propose to offer the
Securities (the "Offering") as soon after the execution and delivery hereof as
in the judgment of the Representative is advisable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3, including a
prospectus relating to the Preferred Shares and other securities of the Company
for the registration of such securities under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statements have been declared
effective by the Commission. A prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared or will be prepared and will be filed in accordance
with the provisions of paragraph (b)
of Rule 424 ("Rule 424(b)") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such prospectus supplement, in the
form first filed after the date hereof pursuant to Rule 424(b), is hereinafter
called the "Prospectus Supplement." Such registration statements, as amended at
the date hereof, including all documents incorporated or deemed to be
incorporated by reference therein and the exhibits thereto, and schedules
thereto, if any, are hereinafter called the "Registration Statement" and the
basic prospectus included therein and relating to all offerings of securities
under the Registration Statement, as supplemented by the Prospectus Supplement,
is hereinafter called the "Prospectus," except that if such basic prospectus is
amended or supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424(b), the term "Prospectus" shall
refer to the basic prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement, including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein. For purposes of this
Agreement, all references to the Registration Statement or the Prospectus or any
amendment or supplement to either of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "stated," "described,"
"discussed" or "set forth" in the Registration Statement or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by reference
in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof and agrees with each Underwriter, as
follows:
(i) Incorporated Documents. The documents incorporated by reference
in the Registration Statement and the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the 1933 Act
or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made; and any further documents so filed and incorporated by
reference in the Registration Statement and the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the 1933 Act or
the 1934 Act, as applicable, and the rules and regulations of the
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Commission thereunder and will not contain an 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 in
light of the circumstances under which they were made; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter
through the Representative expressly for use in the Registration
Statement or the Prospectus, in each case as amended or supplemented,
relating to such Preferred Shares;
(ii) Compliance with Registration Requirements. The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an 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 in light of the circumstances under which they were made;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representative expressly for use in the
Prospectus as amended or supplemented relating to such Preferred
Shares;
(iii) Form S-3 Eligibility. The Company meets the requirements for
use of Form S-3 under the 1933 Act and has filed with the Commission
one or more registration statements on Form S-3, including a prospectus
relating to the Preferred Shares and other securities of the Company
for the registration of such securities under the 1933 Act and such
registration statements have been declared effective by the Commission;
(iv) No Material Adverse Change in Business. Neither the Company
nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material 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
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been any change in the
capitalization or long-term debt of the Company or any material adverse
change in or affecting the condition, financial or otherwise, or the
earnings or business affairs (a "Material Adverse Effect") of the
Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(v) Good Standing of the Company. The Company is a real estate
investment trust duly formed and existing under the laws of the State
of Maryland in good standing with the State Department of Assessments
and Taxation of Maryland, with trust power to own, lease and operate
its properties and to conduct its business substantially as described
in the Prospectus and to enter into and perform its obligations under
this Agreement; and
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the Company is duly qualified as a foreign organization 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 to so qualify would not have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole;
(vi) Qualification as a REIT. The Company is organized and,
commencing with its taxable year ended December 31, 1993, has operated
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 currently intends to operate in a manner
which allows the Company to continue to meet the requirements for
taxation as a REIT under the Code;
(vii) Good Standing of the Operating Partnership. Vornado Realty
L.P. (the "Operating 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
substantially as described in the Prospectus and is duly qualified as a
foreign organization 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 to so qualify would not have a
Material Adverse Effect on the Operating Partnership; all of the issued
and outstanding limited partnership interests in the Operating
Partnership have been duly authorized and validly issued and are fully
paid and (except for the general partner interest) nonassessable; the
Company is the sole general partner of, and owned an approximately
86.6% common limited partnership interest in, the Operating Partnership
as of June 30, 2004;
(viii) Good Standing of Subsidiaries. Each subsidiary of the
Company, other than the Operating Partnership, which is covered in
paragraph (vii) above, has been duly formed and is validly existing in
good standing under the laws of the jurisdiction of its organization
and has power and authority to own, lease and operate its properties
and to conduct its business substantially as described in the
Prospectus and is duly qualified as a foreign organization 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 to so qualify would not have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole; all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and is
owned by the Company or the Operating Partnership, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except as would not have a
Material Adverse Effect on the Company and its subsidiaries taken as a
whole and except as disclosed in the Prospectus;
(ix) Capitalization. The Company has an authorized capitalization
as set forth in its Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2004 (except for subsequent issuances, if any,
pursuant to this Agreement or pursuant to the terms of reservations,
agreements or employee benefit plans, including, without
4
limitation, dividend reinvestment plans and employee or director stock
option plans or as otherwise described in the Prospectus or the
exercise of options outstanding on the date hereof);
(x) Authorization and Description of the Preferred Shares. The
Preferred Shares have been duly authorized, and, when the Initial
Securities are issued and delivered pursuant to this Agreement and, in
the case of any Option Securities, pursuant to over-allotment options
with respect to such Preferred Shares, such Securities will be duly and
validly issued and fully paid and nonassessable; the Preferred Shares
conform to the description thereof contained in the Prospectus under
the caption "Description of Shares of Beneficial Interest of Vornado
Realty Trust" and the Securities will conform to the description
thereof contained in the Prospectus Supplement under the caption
"Description of the Series E Preferred Shares" and such description
will conform to the rights set forth in the Articles Supplementary
designating the Securities in each case in all material respects;
(xi) Absence of Conflicts and Defaults. The issue and sale of the
Preferred Shares and each over-allotment option, if any, and the
compliance by the Company with all of the provisions of this Agreement
and each over-allotment option, if any, and the consummation of the
transactions contemplated herein have been duly authorized by all
necessary trust action of the Company and, except as would not have a
Material Adverse Effect on the Company and its subsidiaries taken as a
whole, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Amended and Restated Declaration of Trust, as
amended, or Bylaws of the Company or (except as where such violation
would not cause a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or any adverse effect on the Company's
ability to consummate the transactions contemplated hereby) any statute
or any order, rule or regulation of any court or governmental
authority, agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Preferred
Shares or the consummation by the Company of the transactions
contemplated by this Agreement or any over-allotment option, except
such as have been, or will have been prior to the Closing Time and each
Date of Delivery (as defined in Section 2(b) hereof), obtained under
the 1933 Act and the 1933 Act Regulations and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Preferred Shares by the Underwriters;
(xii) Authorization of this Underwriting Agreement. This Agreement
has been duly authorized by all necessary trust action of the Company
and all necessary partnership action of the Operating Partnership and
has been executed and delivered by the Company and the Operating
Partnership;
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(xiii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject,
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations
which have not been so filed, except where the failure to file such
exhibit would not amount to an untrue statement of a material fact or
omission of a statement of a material fact required to make the
statements in the Registration Statement not misleading in light of the
circumstances under which they were made;
(xiv) No Violations or Defaults. Neither the Company nor any of its
subsidiaries is in violation of its organizational documents or bylaws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties or assets may be bound, which default would have a
Material Adverse Effect on the Company and its subsidiaries taken as a
whole;
(xv) Accuracy of Certain Descriptions. The statements set forth in
the Prospectus under the captions "Description of Shares of Beneficial
Interest of Vornado Realty Trust," "Description of the Series E
Preferred Shares," "Federal Income Tax Considerations," "Plan of
Distribution" and "Underwriting," insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair summaries in all material respects;
(xvi) Investment Company Act. Neither the Company nor the Operating
Partnership is subject to registration as an "investment company" under
the Investment Company Act;
(xvii) Independent Public Accountants. Deloitte & Touche LLP, who
have certified certain financial statements and financial statement
schedules of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement, are an independent public
accounting firm with respect to the Company as required by the 1933 Act
and the 1933 Act Regulations;
(xviii) Financial Statements. The financial statements and the
financial statement schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly, in all material respects,
the financial position of the Company and its consolidated subsidiaries
as at the dates indicated, the results of their operations for the
periods specified and the information required to be stated therein;
and said financial statements and financial statement schedules have
been prepared in conformity with generally accepted
6
accounting principles applied on a consistent basis throughout the
periods involved. The selected financial data included or incorporated
by reference in the Prospectus present fairly, in all material
respects, the information shown therein and have been compiled on a
basis consistent with that of the consolidated financial statements
included or incorporated by reference in the Registration Statement.
Any pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X of the Commission and present fairly the
information shown therein; the pro forma adjustments, if any, have
been properly applied to the historical amounts in the compilation of
such statements, and in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or
circumstances referred to therein;
(xix) Title to Property. Except as otherwise disclosed in the
Prospectus, and except as would not have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole: (i) each of the
Company and its subsidiaries has good and marketable title to all
properties and assets described in the Prospectus as owned by such
party; (ii) all of the leases under which the Company or any of its
subsidiaries holds or uses real property or assets as a lessee are in
full force and effect, and neither the Company nor any of its
subsidiaries is in material default in respect of any of the terms or
provisions of any of such leases and no claim has been asserted by
anyone adverse to any such party's rights as lessee under any of such
leases, or affecting or questioning any such party's right to the
continued possession or use of the leased property or assets under any
such leases; (iii) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of the Company
or any of its subsidiaries that are required to be disclosed in the
Prospectus are disclosed therein; (iv) neither the Company, any of its
subsidiaries nor, to the knowledge of the Company, any lessee of any
portion of any such party's properties is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases
its properties to third parties and neither the Company nor any of its
subsidiaries knows of any event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any of
such leases; (v) no tenant under any lease pursuant to which the
Company or any of its subsidiaries leases its properties has an option
or right of first refusal to purchase the premises leased thereunder;
(vi) to the best of its knowledge, each of the properties of the
Company or any of its subsidiaries complies with all applicable codes
and zoning laws and regulations; and (vii) neither the Company nor any
of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will in
any manner affect the size or use of, improvements or construction on
or access to the properties of the Company or any of its subsidiaries;
(xx) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a Material Adverse
Effect on the Company and its subsidiaries taken as a whole:
A. each of the Company and its subsidiaries is in compliance
with all applicable laws relating to pollution or the discharge of
materials into the
7
environment, including common law standards of conduct relating to
damage to property or injury to persons caused by such materials
("Environmental Laws"), each of the Company and its subsidiaries
currently holds all governmental authorizations required under
Environmental Laws in order to conduct their businesses as
described in the Prospectus, and neither the Company nor any of its
subsidiaries has any basis to expect that any such governmental
authorization will be modified, suspended or revoked, or cannot be
renewed in the ordinary course of business;
B. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release, or disposal of any
material (including radiation and noise), that could reasonably be
expected to form the basis of any claim (whether by a governmental
authority or other person or entity) under Environmental Laws for
cleanup costs, damages, penalties, fines, or otherwise, against any
of the Company or its subsidiaries, or against any person or entity
whose liability for such claim may have been retained by any of the
Company or its subsidiaries, whether by contract or law; and
C. the Company and its subsidiaries have made available to the
Representative or counsel for the Underwriters all material
studies, reports, assessments, audits and other information in
their possession or control relating to any pollution or release,
threatened release or disposal of materials regulated under
Environmental Laws on, at, under, from or transported from any of
their currently or formerly owned, leased or operated properties,
including, without limitation, all information relating to
underground storage tanks and asbestos containing materials.
(xxi) No Stabilizing Actions. Except as in compliance with Regulation
M, neither the Company nor the Operating Partnership has taken, and neither
the Company nor the Operating Partnership will take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Preferred Shares.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriters, plus any
8
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 450,000 Preferred Shares at the
price per share set forth in Schedule B. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Representative to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery for the Option Securities (a "Date of Delivery")
shall be determined by Bear Xxxxxxx on behalf of the Underwriters, but shall not
be later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as Bear Xxxxxxx on behalf of the Underwriters in its discretion
shall make to eliminate any sales or purchases of fractional sales.
(c) Payment. Payment of the purchase price for, and delivery through
the facilities of The Depository Trust Company ("DTC") of certificates for, the
Securities shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall
be agreed upon by Bear Xxxxxxx on behalf of the Underwriters and the Company, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof, or
such other time not later than ten business days after such date as shall be
agreed upon by Bear Xxxxxxx on behalf of the Underwriters and the Company (such
time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Bear Xxxxxxx on
behalf of the Underwriters and the Company, on each Date of Delivery as
specified in the notice from Bear Xxxxxxx to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
through the facilities of DTC to the Representative for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time or the
9
relevant Date of Delivery, as the case may be. The certificates for the Initial
Securities and the Option Securities, if any, will be made available for
examination and packaging by the Representative in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of experts. The
copies of the Registration Statement and each amendment thereto furnished to the
Representative will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T of the Commission.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will inform
the Representative of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Representative
with copies of any such amendment or supplement a reasonable time in advance of
filing; and will not file any such amendment or supplement in a form to which
the Representative or counsel to the Underwriters shall reasonably object (it
being understood that the terms "amendment" and "supplement" do not include
documents filed by the Company pursuant to the 1934 Act).
(b) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T of the Commission.
(c) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"), so as
to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus, except where the failure to comply will
not adversely affect the distribution of the Securities. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary for the Company to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any
10
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(d) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(e) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(f) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and printing of this Agreement, any Agreement
among the Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates for the Securities to
DTC or its designated custodian or the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification,
if any, of the Securities under state securities laws, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of a Blue Sky Survey
and any supplement thereto, if any, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the fees and expenses of any
transfer agent or registrar for the Securities, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities and (ix)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange. It is understood, however, that, except as
provided in this Section and Section 6 hereof, each Underwriter will pay all of
its own costs and expenses, including the fees of its counsel, stock or other
transfer taxes on resale of any of the Securities by it, and any advertising
expenses connected with any offers of the Securities such Underwriter may make.
11
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any subsidiary of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. No stop order suspending
the effectiveness of the Registration Statement shall have been issued and shall
continue to be in effect under the 1933 Act or proceedings therefore initiated
or threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the 1933 Act Regulations.
(b) Opinions of Counsel for the Company. At Closing Time, the
Representative shall have received the opinion and letter, dated as of Closing
Time, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion and letter for each of the other Underwriters,
to the effect set forth in Exhibit A hereto.
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, the Representative shall have received the opinion, dated as of Closing
Time, of Xxxxxxx, LLP, special Maryland counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for the Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to certain legal matters relating to this Agreement
and such other related matters as the Underwriters may request. In giving such
opinion such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Representative shall have received a
certificate of the Chairman or President and the Executive Vice President -
Finance and Administration, Chief
12
Financial Officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
shall be in effect and no proceedings for that purpose have been instituted or,
to the best of such officers' knowledge, are pending or are contemplated by the
Commission.
(f) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(h) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least Baa3 by Moody's Investor's Service and BBB- by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc.; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's other securities by any "nationally
recognized statistical rating agency," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other securities.
(i) Approval of Listing. At Closing Time, either (i) the Securities
shall have been approved for listing on the New York Stock Exchange, or (ii) if
trading on the New York Stock Exchange is to be delayed, the Company shall have
filed an application for listing of the Securities on the New York Stock
Exchange.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chairman or President and of the Executive Vice
President - Finance and Administration, Chief Financial Officer of the
Company confirming that the certificate delivered at the
13
Closing Time pursuant to Section 5(e) hereof remains true and correct
as of such Date of Delivery.
(ii) Opinions of Counsel for the Company. The opinion and letter
of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, together with the
opinion of Xxxxxxx, LLP, special Maryland counsel for the Company, each
in form and substance reasonably satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinions required by Sections 5(b) and 5(c)
hereof.
(iii) Opinion of Counsel for the Underwriter. The opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte & Touche
LLP, in form and substance satisfactory to the Representative and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representative pursuant to Section 5(g)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than three days
prior to such Date of Delivery.
(v) No Downgrading. Subsequent to the date of this Agreement, no
downgrading shall have occurred in the rating accorded the Securities
or of any of the Company's other securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such organization shall have publicly announced that it has under
surveillance or review its ratings of any of the Company's securities.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Representative and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
Underwriters to purchase the relevant Option Securities, may be terminated by
the Representative by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
14
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating
Partnership each agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by Bear Xxxxxxx), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
then amended or supplemented (excluding documents incorporated by reference) in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the Prospectus, any such
amendment or supplement thereto or any such other document was corrected in the
Prospectus or the Prospectus as then amended or supplemented if
15
the Company has furnished prior to such confirmation sufficient copies thereof
to such Underwriter.
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers. Each Underwriter severally agrees to indemnify and hold
harmless the Company, the Operating Partnership, their respective trustees or
partners, each of the officers who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment thereto) in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by such Underwriter through the Representative expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Bear Xxxxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by
16
such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into, (iii) such indemnifying party, if
it has not theretofore paid such reimbursement, is requested again to pay
reimbursement at least five, but not more than ten, days prior to such
settlement being entered into, and (iv) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus Supplement, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such 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 Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities
17
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee or partner, as the case may be, of the Company or the Operating
Partnership, each officer who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or the Operating Partnership, as
the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters or any controlling person of an Underwriter, or by or on behalf of
the Company or the Operating Partnership or any officer or trustee or partner or
controlling person of the Company or the Operating Partnership, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in or affecting the condition, financial or otherwise,
or the earnings or business affairs of the Company and its subsidiaries taken as
a whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to commence or continue the
offering of the Securities to the public or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of such exchanges or by order of the Commission or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities or (v) there shall have been any decrease
in the rating of any of the Company's securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act)
18
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
Representative may in its discretion arrange for itself or another party or
other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the Representative
does not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representative to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, the Representative notifies the Company that it has so arranged for the
purchase of such Securities, or the Company notifies the Representative that it
has so arranged for the purchase of such Securities, the Representative or the
Company shall have the right to postpone the Closing Time for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representative may thereby be made necessary. The term
"Underwriter" as used in the Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representative or
the Company, or both, as provided in subsection (a) above, the number of
Securities which remains unpurchased does not exceed one-tenth of the number of
the Securities to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the full amount of
Securities which such Underwriter agreed to purchase under this Agreement and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter agreed to
purchase under this Agreement) of the Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representative or
the Company, or both, as provided in subsection (a) above, the number of
Securities which remains unpurchased exceeds one-tenth of the number of the
Securities to be purchased on such date, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the party of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters provided in
19
Section 4 hereof and the indemnity and contribution agreements in Sections 6 and
7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Bear Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxx Xxxx; and notices to the Company and the
Operating Partnership shall be directed to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of the Executive Vice President - Finance and
Administration, Chief Financial Officer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company, the Operating Partnership and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company, the Operating Partnership and their
respective successors and the controlling persons and officers, trustees and
partners referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Operating Partnership
and their respective successors, and said controlling persons and officers,
trustees and partners and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
VORNADO REALTY TRUST
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
CONFIRMED AND ACCEPTED,
as of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X'Xxxxxx
---------------------------------------------
Name: Xxxxx X'Xxxxxx
Title: Managing Director
SCHEDULE A
Name of Underwriter
------------------- Number of
Initial
Securities
----------
Bear, Xxxxxxx & Co. Inc. 3,000,000
Sch A-1
SCHEDULE B
VORNADO REALTY TRUST
7.00% Series E Cumulative Redeemable Preferred Shares of Beneficial Interest
Title of Designated Shares:
7.00% Series E Cumulative Redeemable Preferred Shares of Beneficial
Interest
Number of Designated Shares:
Number of Firm Shares: 3,000,000
Maximum Number of Optional Shares: 450,000
Public Offering Price:
$25.00 per Share, plus accrued dividends from the Closing Time, if
settlement occurs after that date.
Purchase Price by Underwriters:
$24.2125 per Share, plus accrued dividends from the Closing Time, if
settlement occurs after that date.
Underwriting Discount:
$0.7875 per Share
Form of Designated Shares:
Book-Entry Only through DTC.
Specified Funds for Payment of Purchase Price:
Wire transfer of same day funds.
Time of Delivery:
10:00 a.m. (New York City time), August 20, 2004
Closing Location:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Name and Address of Designated Representative:
Designated Representative: Bear, Xxxxxxx & Co. Inc.
Address for Notices, etc.: Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; Attention: Xxxxx Xxxx
Sch B-1
Dividends:
Cumulative at the annual rate of 7.00% per share on the liquidation
preference of the Series E Preferred Shares payable quarterly in
arrears on the first calendar day of January, April, July and October
of each year, commencing October 1, 2004.
Liquidation Preference:
$25.00 per share, plus an amount equal to accrued and unpaid dividends
(whether or not earned or declared).
Ranking:
The Series E Preferred Shares will rank senior to the Company's common
shares of beneficial interest and any other junior stock that the
Company may issue in the future and equal to the Company's Series A
Convertible Preferred Shares, Series B Preferred Shares, Series C
Preferred Shares, Series D Preferred Shares and any other parity stock
that the Company may issue in the future, in each case with respect to
payment of dividends and amounts upon liquidation, dissolution or
winding up. The Company will acquire Series E Pass-Through Preferred
Units of the Operating Partnership (with terms mirroring the terms of
the Series E Preferred Shares) in exchange for the cash proceeds from
the sale of the Series E Preferred Shares. Series E Pass-Through
Preferred Units will rank senior to all classes of Operating
Partnership units and on a parity with certain other units in the
Operating Partnership, with respect to payment of dividends and amounts
upon liquidation, dissolution or winding up of the Operating
Partnership.
Conversion Rights:
The Series E Preferred Shares are not convertible or exchangeable for
any property or other securities of the Company.
Redemption at Option of the Company:
Except in certain circumstances relating to the preservation of the
Company's status as a REIT, the Series E Preferred Shares are not
redeemable prior to August 20, 2009. On and after August 20, 2009, the
Series E Preferred Shares will be redeemable by the Company at a
redemption price of $25.00 per share, plus any accrued and unpaid
dividends through the date of redemption. The Series E Preferred Shares
have no maturity date and will remain outstanding indefinitely unless
redeemed.
Voting Rights:
Holders of the Series E Preferred Shares generally will have no voting
rights. However, if dividends on the Series E Preferred Shares are in
arrears for six quarterly dividend periods, the holders of the Series E
Preferred Shares (voting separately as a class with holders of all
other series of parity preferred stock upon which like voting rights
have been conferred and are exercisable) will have the right to elect
two additional trustees to serve on the Company's Board of Trustees
until such dividend arrearage is eliminated. In addition, the approval
of two-thirds of the outstanding Series E Preferred Shares (voting
separately as a class with holders of all other series of parity
preferred stock upon which like voting rights have been conferred and
are exercisable) is required in order to amend the Company's Amended
and Restated Declaration of Trust and Articles Supplementary to affect
materially and adversely the rights, preferences or voting powers of
the holders
B-2
of the Series E Preferred Shares or such parity shares or to
authorize, create, or increase the authorized amount of, any class
of stock having rights senior to the Series E Preferred Shares with
respect to the payment of dividends or amounts upon liquidation,
dissolution or winding up.
Listing:
New York Stock Exchange: "VNO Pr E"
CUSIP:
929042 60 4
B-3
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a real estate investment trust duly formed and
existing under the laws of the State of Maryland and is in good standing with
the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus under the heading "Vornado and the Operating Partnership" and to
enter into and perform its obligations under this Agreement;
(iii) The Operating Partnership is a limited partnership existing under
the laws of the State of Delaware and has the partnership power and authority to
own, lease and operate its properties and conduct its business substantially as
described in the Prospectus;
(iv) The Securities have been duly authorized and validly issued and
are fully paid and nonassessable;
(v) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership;
(vi) The Registration Statement has been declared effective under the
1933 Act, and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending under the 1933
Act;
(vii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the State of New York for the issuance, sale and
delivery of the Securities by the Company to the Underwriters have been obtained
or made; provided, however, that for purposes of this paragraph (vii), such
counsel need not express any opinion with respect to state securities laws that
may be applicable to the issuance, sale or delivery of the Securities;
(viii) The execution and delivery by the Company and the Operating
Partnership of this Agreement, the issuance of the Securities and the sale of
the Securities by the Company to the Underwriters pursuant to this Agreement do
not, and the performance by the Company of its obligations under this Agreement
and the consummation of the transactions herein contemplated will not (A)
violate the Company's Amended and Restated Declaration of Trust or Bylaws or the
certificate of limited partnership of the Operating Partnership, (B) violate any
court order or administrative decree known to such counsel or any Federal law of
the United States or law of the State of New York applicable to the Company or
the Operating Partnership, or (C) result in a default under
A-1
or breach of any agreement filed as an exhibit to the Company's most recent
Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q or
Current Report on Form 8-K under Item 601 (b)(10) of Regulation S-K, subject, in
the case of clauses (A), (B) and (C) of this paragraph (viii), to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; provided, however, that for purposes of this paragraph
(viii), such counsel need not express any opinion with respect to Federal or
state securities laws, other antifraud laws or fraudulent transfer laws or the
Employee Retirement Income Security Act of 1974 and Related laws;
(ix) Such counsel shall confirm (i) the opinion that, commencing with
its taxable year ending December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a REIT under the Code, and
its proposed method of operation will enable it to satisfy the requirements for
qualification and taxation as a REIT and (ii) that the discussion set forth
under the caption "Federal Income Tax Considerations" in the Prospectus dated
August 28, 2003, as supplemented by the discussion under the caption "Federal
Income Tax Considerations" in the Prospectus Supplement dated August 17, 2004,
to the extent it describes matters of law or legal conclusions, is correct in
all material respects; in providing such opinion, such counsel may rely (i) upon
the statements and representations contained in certificates provided by the
Company and Two Penn Plaza REIT, Inc., (ii) without independent investigation,
upon statements and representations contained in a certificate provided by
Alexander's, Inc., (iii) without investigation, upon an opinion of Shearman &
Sterling concerning the qualification of Alexander's as a REIT for federal
income tax purposes and (iv) upon any other certificates or opinions of counsel
as deemed necessary or appropriate in rendering such opinion and subject to an
analysis of the Code, Treasury Regulations thereunder, judicial authority and
current administrative rulings and such other laws and facts as deemed relevant
and necessary; and
(x) Neither the Company nor the Operating Partnership is an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
In giving this opinion, Xxxxxxxx & Xxxxxxxx LLP may state that such
opinion is limited to the Federal laws of the United States of America, the laws
of the State of New York, the laws of the State of Maryland and the Revised
Uniform Limited Partnership Act of the State of Delaware, such counsel may rely
as to matters of Maryland law on the opinion of Xxxxxxx, LLP and such counsel
express no opinion as to the effect of the laws of any other jurisdiction; and
such counsel may rely as to certain matters, upon information obtained from
public officials, officers of the Company and its subsidiaries and other sources
believed by them to be responsible. Such counsel may assume that the
certificates for the Securities conform to the specimen thereof examined by them
and have been authenticated, that this Agreement has been duly authorized,
executed and delivered by the Underwriter and that the signatures on all
documents examined by them are genuine, assumptions which such counsel need not
independently verify.
A-2
FORM OF LETTER OF COMPANY'S COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) On the basis of the information that was gained in the course of
the performance of the services referred to in their letter considered in the
light of their understanding of the applicable law (including the requirements
of Form S-3 and the character of the prospectus contemplated thereby) and the
experience they have gained through their practice under the 1933 Act, such
counsel are of the opinion that each part of the Registration Statement, when
such part became effective, and the Prospectus, as supplemented by the
Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on
their face to be appropriately responsive, in all material respects relevant to
the offering of the Securities, to the requirements of the 1933 Act and the 1933
Act Regulations; and that nothing that came to their attention in the course of
their review has caused them to believe that, insofar as relevant to the
offering of the Securities, any part of the Registration Statement, when such
part became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the Prospectus
Supplement, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; also,
nothing that has come to such counsel's attention in the course of certain
procedures (as described in such opinion) has caused such counsel to believe
that the Prospectus, as supplemented by the Prospectus Supplement, as of the
date and time of delivery of such letter, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that such opinion may state that the
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such that
such counsel does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the
Prospectus or the Prospectus Supplement, except for those made under the caption
"Description of Shares of Beneficial Interest of Vornado Realty Trust" in the
Prospectus and "Description of the Series E Preferred Shares" in the Prospectus
Supplement insofar as they relate to the provisions of documents therein
described, and that such counsel need not express any opinion or belief as to
the financial statements or schedules or other financial data derived from
accounting records contained in the Registration Statement or the Prospectus.
(ii) Such counsel does not know of any litigation or governmental
proceedings instituted or threatened against the Company or any of its
consolidated subsidiaries that would be required to be disclosed in the
Prospectus and is not so disclosed; and such counsel does not know of any
documents that are required to be filed as exhibits to the Registration
Statement and are not so filed or of any documents that are required to be
summarized in the Prospectus that are not so summarized.
A-3
Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company is a real estate investment trust duly formed and
existing under and by virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus under the heading "Vornado and the Operating Partnership" and to
enter into and perform its obligations under this Agreement;
(iii) As of the date of this opinion, the Amended and Restated
Declaration of Trust of the Company authorized the issuance of up to [ ] shares,
consisting of (A) [ ] Common Shares, of which [ ] Common Shares were issued and
outstanding (excluding Common Shares issuable upon the exercise of outstanding
options, the redemption of outstanding units of the Operating Partnership and
the conversion of outstanding $3.25 Series A Convertible Preferred Shares of
Beneficial Interest), (B) [ ] preferred shares of beneficial interest, no par
value per share, of which [ ] were issued and outstanding, and (C) [ ] excess
shares of beneficial interest, par value $0.04 per share, of which [ ] were
issued and outstanding; and all of the issued and outstanding shares of
beneficial interest of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable; and none of the outstanding shares
of beneficial interest of the Company was issued in violation of any preemptive
rights of any shareholder of the Company arising under Title 8 of the
Corporations and Associations Article of the Annotated Code of Maryland ("Title
8") or the Declaration of Trust or Bylaws of the Company;
(iv) The issuance and sale of the Securities to the Underwriters
pursuant to this Agreement have been duly authorized, and, when issued and
delivered by the Company against payment therefor pursuant to this Agreement and
the resolutions of the Board of Trustees and the duly authorized committee
thereof authorizing their issuance, the Securities will be validly issued, fully
paid and nonassessable;
(v) The statements under the heading "Description of Shares of
Beneficial Interest of Vornado Realty Trust" in the Prospectus and "Description
of the Series E Preferred Shares" in the Prospectus Supplement, to the extent
that such statements purport to summarize or describe matters of Maryland law,
summaries of legal matters, documents or proceedings or legal conclusions, have
been reviewed by such counsel and is correct in all material respects;
B-1
(vi) The Securities conform in all material respects as to matters of
Maryland law to the description thereof contained under the caption "Description
of Shares of Beneficial Interest of Vornado Realty Trust" in the Prospectus and
"Description of the Series E Preferred Shares" in the Prospectus Supplement and
the form of certificate evidencing the Securities is in due and proper form in
accordance with Title 8;
(vii) The issuance of the Securities is not subject to any preemptive
or similar rights arising under Title 8, the Declaration of Trust or the Bylaws
of the Company;
(viii) No authorization, approval, consent or order of any court or
governmental authority or agency of the State of Maryland is required in
connection with the offering, issuance or sale of the Securities to the
Underwriter, except such as may be required under the securities laws or
regulations of any state or other jurisdiction, including the State of Maryland;
(ix) This Agreement has been duly authorized by all necessary trust
action of the Company, executed and, so far as is known to us, delivered by the
Company on its own behalf and in its capacity as General Partner of the
Operating Partnership;
(x) The execution and filing of Articles Supplementary relating to the
Securities (the "Articles Supplementary") have been duly authorized by the
Company and the Articles Supplementary have been executed in accordance with
Title 8 and have been filed with the SDAT; and
(xi) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and the compliance by the
Company with its obligations hereunder do not result in any violation of (A) the
provisions of the Amended and Restated Declaration of Trust or Bylaws of the
Company or (B) any applicable Maryland law or administrative regulation or, to
the best knowledge of such counsel, administrative or court decree of the State
of Maryland, except with respect to clause (B), such violations as would not
have a material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries.
In giving these opinions, Xxxxxxx, LLP may state that such opinions are
limited to the laws of the State of Maryland and may rely (1) as to all matters
of fact, upon certificates and written statements of officers and employees of
and accountants for the Company and (2) as to the qualification and good
standing of the Company or any of its subsidiaries in any other jurisdiction,
upon opinions of counsel in such other jurisdictions and certificates of
appropriate government officials.
B-2
