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Exhibit 1.1
Vornado Realty Trust
Common Shares of Beneficial Interest
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Underwriting Agreement
April 9, 1998
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time Vornado Realty Trust, a Maryland real estate
investment trust (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the Underwriters with respect to such Pricing Agreement and the
securities specified therein) Common Shares of Beneficial Interest, par value
$.04 per share (the "Shares"), specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Firm Shares"). If
specified in such Pricing Agreement, the Company may grant to the Underwriters
the right to purchase at their election an additional number of shares,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Designated Shares".
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time
to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase any of the Shares. The obligation of the
Company to issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Firm Shares, the maximum
number of
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Optional Shares, if any, the initial public offering price of such Firm and
Optional Shares or the manner of determining such price, the purchase price to
the Underwriters of such Designated Shares, the names of the Underwriters of
such Designated Shares, the names of the Representatives of such Underwriters,
the number of such Designated Shares to be purchased by each Underwriter and the
commission, if any, payable to the Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of such Firm and Optional
Shares, if any, and payment therefor. The Pricing Agreement shall also specify
(to the extent not set forth in the registration statement and prospectus with
respect thereto) the terms of such Designated Shares. A Pricing Agreement shall
be in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-40787 and
333-29013) in respect of the Shares and other securities of the Company
have been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives
for each of the other Underwriters have been declared effective by the
Commission in such form; no other document with respect to such
registration statements or documents incorporated by reference therein
has heretofore been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to
the Representatives); and no stop order suspending the effectiveness of
such registration statements has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statements or
filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statements, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statements at the time such part of the registration
statements became effective, each as amended at the time such part of
the registration statements became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus
relating to the Shares, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary
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Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Shares in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in 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 Act or the Exchange 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; and any further documents so filed
and incorporated by reference in 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 Act or the Exchange
Act, as applicable, and the rules and regulations of the 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; 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 an Underwriter of
Designated Shares directly or through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such
Shares;
(c) 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 Act and the rules and regulations of the Commission
thereunder 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; 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
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an Underwriter of Designated Shares directly or through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(d) 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, there has not been any change in the
capitalization or long-term debt of the Company or any of its
subsidiaries or any material adverse change in or affecting the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company is a real estate investment trust duly formed
and existing under and by virtue of 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 under the caption "The Company" and to enter into and
perform its obligations under this Agreement and the Pricing Agreement;
and 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
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole;
(f) Vornado Realty, L.P. (the "Operating Partnership") has
been duly organized and is validly existing as a limited partnership in
good standing under the laws of the State of Delaware and has power and
authority to own, lease and operate its properties and to conduct its
business 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 condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Operating
Partnership; all of the issued and outstanding limited partnership
interests of the Operating Partnership have been duly authorized and
validly issued and are fully paid and nonassessable; the Company is the
sole general partner of and owns an approximately 89.9% limited
partnership interest in the Operating Partnership as of April 8, 1998;
(g) Each subsidiary of the Company, other than the Operating
Partnership, which is covered in paragraph (f) above, has been duly
organized and is validly existing
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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 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 condition, financial or
otherwise, or the earnings, business affairs or business prospects of
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, 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
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole
and as disclosed in the Prospectus;
(h) The Company has an authorized capitalization as set forth
in the Prospectus under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement or pursuant to
the terms of reservations, agreements or employee benefit plans,
including, without limitation, the Vornado Realty Trust Omnibus Share
Plan, dividend reinvestment plans and employee or director stock option
plans, or the exercise of options outstanding on the date hereof or on
the date of the applicable Pricing Agreement, and in each case referred
to in the Prospectus), 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;
(i) The Shares have been duly authorized, and, when the Firm
Shares are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in the
case of any Optional Shares, pursuant to Over-allotment Options (as
defined in Section 3 hereof) with respect to such Shares, such
Designated Shares will be duly and validly issued and fully paid and
nonassessable; the Shares conform to the description thereof contained
in the Registration Statement under the caption "Description of Shares
of Beneficial Interest" and the Designated Shares will conform in all
material respects to the description thereof contained in the
Prospectus under the caption "Description of Shares of Beneficial
Interest" as amended or supplemented with respect to such Designated
Shares;
(j) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement, any Pricing
Agreement and each Over-allotment Option, if any, and the consummation
of the transactions contemplated herein and therein have been duly
authorized by all necessary trust action and, except as would not have
a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of 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
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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 or Bylaws of the Company or 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 Shares or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or any Over-allotment Option, except
such as have been, or will have been prior to each Time of Delivery (as
defined in Section 4 hereof), obtained under the Act and the rules and
regulations of the Commission thereunder 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 Shares by the Underwriters;
(k) This Agreement has been, and, when signed, the applicable
Pricing Agreement relating to the Designated Shares will be, duly
authorized by all necessary trust action of the Company, executed and
delivered by the Company;
(l) 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 condition,
financial or otherwise, or the earnings, business affairs or business
prospects of 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 Act or the rules and regulations
thereunder which have not been so filed;
(m) Neither the Company nor any of its subsidiaries is in
violation of its organizational documents or bylaws or other
organizational documents 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 general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries;
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(n) The statements set forth in the Prospectus under the
captions "Description of Shares of Beneficial Interest", "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;
(o) Neither the Company nor any of its subsidiaries is subject
to registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(p) 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 independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
(q) The financial statements and the financial statement
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly 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 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 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;
(r) Except as otherwise disclosed in the Prospectus, and
except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of 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, in each case free of all liens, encumbrances and defects;
(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
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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 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;
(s) Except as specifically disclosed in the Prospectus, or as
is not reasonably likely to have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole:
(i) each of the Company and its subsidiaries is in
compliance with all applicable laws relating to pollution or
the discharge of materials into the environment, including
common law relating to damage to property or injury to persons
("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 none of the
above has any basis to believe that any such governmental
authorization may be modified, suspended or revoked, or cannot
be renewed in the ordinary course of business;
(ii) there are no past or present actions,
activities, circumstances, conditions, events or incidents,
including, without limitation, the release, threatened re
lease, or disposal of any material (including radiation and
noise), that could 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
(iii) the Company and its subsidiaries have fully
disclosed to the Underwriters and their counsel all studies,
reports, assessments, audits and other
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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.
(t) The Company has not taken and will not 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 Shares.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives, but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives and the Company otherwise agree in writing,
earlier than or later than the respective number of business days after the date
of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the
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Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor to the Company in
the funds specified in such Pricing Agreement, (i) with respect to the Firm
Shares, all in the manner and at the place and time and date specified in such
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Shares, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Shares or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Shares and prior to any Time of
Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after any Time of Delivery for such Shares and furnish
the Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Shares, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Shares or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such
order;
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(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Shares and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason,
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158); and
(e) During the period specified in the applicable Pricing
Agreement for the Designated Shares, the Company will not offer, sell,
contract to sell or otherwise dispose of any securities of the Company
(other than pursuant to employee stock option plans existing on, or
upon the conversion of convertible or exchangeable securities
outstanding as of, the date of the Pricing Agreement for such
Designated Shares) which are substantially similar to the Designated
Shares or which are convertible into or exchangeable for securities
which are substantially similar to the Designated Shares without the
prior written consent of the Representatives, except for the Designated
Shares
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and any Shares (or securities convertible into or exercisable or
exchangeable for Shares) issued by the Company in connection with
acquisitions.
6. The Company covenants and agrees with the several Underwriters that,
except as may be otherwise set forth in the applicable Pricing Agreement
relating to Designated Shares, the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses, if any, in connection with the qualification of
the Shares for offering and sale under state securities laws as provided in
Section 5(b) hereof, including any fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Shares; (v) the cost of preparing, issuing and delivering
certificates for the Shares; (vi) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Over-allotment Options which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Company in or incorporated by
reference in the Pricing Agreement relating to such Designated Shares or in
certificates of any officer of the Company delivered pursuant to the provisions
hereof and thereof are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to
such Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all
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requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable
satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated each Time of Delivery for such Designated Shares,
with respect to the matters covered in paragraphs (i), (iv), (vi),
(vii), and (xii) of subsection (c) below as well as such other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to the Representatives their written opinions, dated each
Time of Delivery for such Designated Shares, in form and substance
satisfactory to the Representatives, to the effect that:
(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 caption
"The Company" and to enter into and perform its obligations
under this Agreement and the Pricing Agreement relating to the
Designated Shares;
(iii) The Operating Partnership is a limited
partnership duly organized and existing under the laws of the
State of Delaware and has the power and authority to own,
lease and operate its properties and conduct its business
substantially as described in the Prospectus;
(iv) The issuance and sale of the Designated Shares
to the Underwriters pursuant to this Agreement and the Pricing
Agreement with respect to the Designated Shares have been duly
authorized and, when issued and delivered by the Company
against payment therefor pursuant to this Agreement and the
Pricing Agreement with respect to the Designated Shares , and
the resolutions of the Board of Trustees authorizing their
issuance, the Designated Shares will be validly issued, fully
paid and nonassessable;
(v) 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
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documents that are required to be summarized in the Prospectus
that are not so summarized;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Shares have been duly authorized,
executed and delivered by the Company;
(vii) The Registration Statement has been declared
effective under the 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
Act;
(viii) 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 Designated Shares by the Company to the
Underwriters have been obtained or made; provided, however,
that for purposes of this paragraph (viii), such counsel need
not express any opinion with respect to state securities laws;
(ix) The execution and delivery by the Company of
this Agreement and the applicable Pricing Agreement do not,
and the issuance of the Designated Shares and the sale of the
Designated Shares to the Underwriters pursuant to this
Agreement and the applicable Pricing Agreement and the
performance by the Company of its obligations under this
Agreement and the Pricing Agreement with respect to the
Designated Shares and the consummation of the transactions
herein and therein contemplated will not (A) violate the
Company's Amended and Restated Declaration of Trust or Bylaws
or the certificate or articles of incorporation or bylaws or
other organizational documents of any of its subsidiaries, (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 (C) result in
a default under or breach of any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
filed as an exhibit to the Registration Statement or as an
exhibit to any current document incorporated by reference
therein to which the Company or any subsidiary is a party or
by which any of them may be bound, or to which any of their
property is subject, subject, in the case of clauses (A), (B)
and (C) of this paragraph (ix), 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 (ix), such
counsel need not express any opinion with respect to federal
or state securities laws, other antifraud laws or fraudulent
transfer laws;
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(x) The information set forth in the Prospectus under
the heading "Certain Federal Income Tax Considerations", and
under such other heading in the Prospectus, as amended or
supplemented with respect to the Designated Shares, describing
the tax considerations in connection with the Designated
Shares, to the extent that it constitutes matters of law or
legal conclusions, is correct in all material respects;
provided that such opinion may be rendered in reliance upon
representations made by third parties and, as to the
qualification of Alexander's, Inc. as a real estate investment
trust for federal income tax purposes, an opinion of Shearman
& Sterling;
(xi) Neither the Company nor any of its subsidiaries
is an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940; and
(xii) On the basis of the information which was
reviewed in the course of the performance of the services
referred to in their opinion considered in the light of their
understanding of the applicable law (including the
requirements of the Registration Statement on Form S-3 and the
character of the prospectus contemplated thereby) and the
experience they have gained through their practice under the
Act, such counsel are of the opinion that the Registration
Statement, as of its effective date, and the Prospectus, as of
the date of the Prospectus, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder; and that nothing
that came to their attention in the course of their review has
caused them to believe that the Registration Statement, as of
its effective date, 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 of its date,
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 of the date and
time of delivery of such opinion, 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 do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except as otherwise
specifically referred to in paragraph (x) above and except for
those made under the heading "Description of Common Shares of
Beneficial Interest" in the Prospectus insofar
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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 and schedules or
other financial data contained in the Registration Statement
or the Prospectus.
In giving these opinions, Xxxxxxxx & Xxxxxxxx may state that
they are admitted to the bar of the State of New York and do not
express any opinion as to the laws of any other jurisdiction other than
the federal laws of the United States of America 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, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
(d) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, special Maryland
counsel for the Company, shall have furnished to the Representatives
their written opinions, dated each Time of Delivery for such Designated
Shares, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(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 caption
"The Company" and to enter into and perform its obligations
under this Agreement and the applicable Pricing Agreement;
(iii) The numbers of authorized, issued and
outstanding shares of beneficial interest of the Company are
as set forth in the Prospectus under "Capitalization"; the
issued and outstanding shares of beneficial interest of the
Company have been duly authorized and validly 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 Maryland law or the Declaration of Trust
or Bylaws of the Company;
(iv) The issuance and sale of the Designated Shares
to the Underwriters pursuant to this Agreement and the Pricing
Agreement with respect to the Designated Shares have been duly
authorized, and, when issued and delivered by the Company
against payment therefor pursuant to this Agreement and the
Pricing Agreement, and the resolutions of the Board of
Trustees authorizing their issuance, the Designated Shares
will be validly issued, fully paid and nonassessable;
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(v) The information in the Prospectus under the
heading "Description of Shares of Beneficial Interest" and
under such other heading, if any, in the Prospectus as
supplemented with respect to the Designated Shares which sets
forth the terms of the Designated Shares, to the extent that
it constitutes matters of Maryland law, summaries of legal
matters, documents or proceedings or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects;
(vi) The Designated Shares 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" in the Prospectus and the form of
certificate evidencing the Designated Shares is in due and
proper form in all material respects in accordance with any
applicable statutory requirements;
(vii) The issuance of the Designated Shares is not
subject to any preemptive or similar rights arising under
Maryland law, 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 Designated Shares to the Underwriters,
except such as may be required under the Act or the rules
and regulations of the Commission thereunder or securities
laws or regulations of any state or other jurisdiction;
(ix) This Agreement and the applicable Pricing
Agreement relating to the Designated Shares have been duly
authorized by all necessary trust action of the Company,
executed and, so far as known to us, delivered by the Company;
and
(x) The execution, delivery and performance of this
Agreement and the applicable Pricing Agreement, the
consummation of the transactions contemplated herein and
therein and the compliance by the Company with its obligations
hereunder and thereunder will not result in any violation of
(A) the provisions of the Amended and Restated Declaration of
Trust or Bylaws of the Company or the charter documents or
bylaws of any subsidiary of the Company incorporated in New
Jersey, Delaware, Maryland and Pennsylvania (as appropriately
identified on an exhibit to such opinion or otherwise), 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, and subject, in the case of clauses (A)
and (B), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and
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similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
In giving these opinions, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
LLP may state that such opinions are limited to the laws of the States
of Maryland and New Jersey and the Commonwealth of Pennsylvania, and
Delaware corporation law 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.
(e) On the date of the Pricing Agreement for such Designated
Shares and at each Time of Delivery for such Designated Shares,
Deloitte & Touche LLP, the independent accountants of the Company who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective date, and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such
Time of Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares, and (ii) since the respective dates
as of which information is given in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Shares
there shall not have been any change in the capitalization or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Shares,
the effect of which, in any such case described in Clause (i) or (ii),
is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Shares
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on the terms and in the manner contemplated in the Prospectus as
amended relating to the Designated Shares;
(g) On or after the date of the Pricing Agreement relating to
the Designated Shares (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred shares of
beneficial interest by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to
the Designated Shares there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Shares or Optional Shares or both on the terms and
in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Shares;
(i) If requested by the Underwriters, the Designated Shares at
each Time of Delivery shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange;
(j) The Company shall have furnished or caused to be furnished
to the Representatives at each Time of Delivery for the Designated
Shares certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request; and
(k) On or before the applicable Time of Delivery, if
requested, the Company shall have received and provided to the
Representatives copies of valid and binding agreements duly executed by
the persons or entities named in the applicable Pricing Agreement,
pursuant to which each such person or entity shall agree not to,
without the prior written consent of the Representatives, sell, offer
to sell, grant any option for the sale of, contract to sell or
otherwise transfer or dispose of or announce its intent to take
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any such action, any Shares or any security convertible or exchangeable
for Shares, for the period specified in the applicable Pricing
Agreement.
In the event that the Underwriters exercise their option
provided in Section 3 hereof to purchase all or any portion of the Optional
Shares, the representations and warranties of the Company contained herein and
the statements in any certificates furnished hereunder shall be true and correct
as of each Time of Delivery and, at the applicable Time of Delivery, the
Representatives shall have received the certificates and opinions, dated the
relevant Time of Delivery, referred to in this Section 7.
8. (a) The Company and the Operating Partnership will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Operating Partnership
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Shares directly or through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Operating Partnership against any losses, claims, damages or liabilities to
which the Company or the Operating Partnership may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended
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or supplemented and any other prospectus relating to the Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by such
Underwriter directly or through the Representatives expressly for use therein;
and will reimburse the Company and the Operating Partnership for any legal or
other expenses reasonably incurred by the Company or the Operating Partnership
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party or 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 written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Shares on the other from the offering of the Designated Shares
to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not
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permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters of the
Designated Shares on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on the
other 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 contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Shares 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
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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company and the Operating Partnership under
this Section 8 shall be in addition to any liability which the Company and the
Operating Partnership may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, trustee or partner, as applicable, of the Company or the Operating
Partnership and to each person, if any, who controls the Company or the
Operating Partnership within the meaning of the Act.
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9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under the
Pricing Agreement relating to such Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Firm Shares or Optional Shares, as the case may be, 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 Representatives to
purchase such Shares on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Shares, or the Company notifies the
Representatives that it has so arranged for the purchase of such Shares, the
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Shares 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 as amended or supplemented, 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 Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of such Shares which remains unpurchased does
not exceed one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of Delivery,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Firm Shares or Optional Shares, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Shares or Optional Shares, as
the case may be, 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
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of Firm Shares or Optional Shares, as the case
may be, which remains unpurchased exceeds one-eleventh of the aggregate number
of the Firm Shares or Optional Shares, as the case may be, to be purchased at
the respective Time of Delivery, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Optional Shares,
as the case may be, of
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a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Firm Shares or the Over-allotment Option relating to such Optional Shares,
as the case may be, shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Operating Partnership and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or 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 and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm Shares or Optional Shares
with respect to which such Pricing Agreement shall have been terminated except
as provided in Sections 6 and 8 hereof; but, if for any other reason, Designated
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the Company at
Park 00 Xxxx, Xxxxx XX, Xxxxxx Xxxxx, XX 00000, Attention: Executive Vice
President, Finance and Administration; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the
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Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
Vornado Realty Trust
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President,
Finance and Administration
Vornado Realty L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President,
Finance and Administration
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
27
ANNEX I
Pricing Agreement
, 199__
Xxxxxxx, Sachs & Co.,
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _____________ , 199__ (the "Underwriting
Agreement"), between the Company on the one hand and Xxxxxxx, Sachs & Co. on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" [consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase]). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Shares pursuant to Section 12 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
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Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at the time and place and at the purchase price to the Underwriters set forth
in Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto [and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares,
as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price to the Underwriters set
forth in Schedule II hereto that portion of the number of Optional Shares as to
which such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised by written notice from the Representatives to the Company given
within a period of 30 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.]
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If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and one for each of the Representatives
plus one for each counsel] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
Vornado Realty Trust
By:________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Name(s) of Co-Representative(s)
By:________________________________
(Xxxxxxx, Sachs & Co.)
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SCHEDULE I
Maximum
Number
of Optional
Number of Shares
Firm Shares Which
to be May be
Underwriter Purchased Purchased
---------------------- ----------- -----------
Xxxxxxx, Xxxxx & Co.
[Name(s) of Co-Representative(s)]
[Names of other Underwriters]
Total =========== ===========
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SCHEDULE II
Number of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price to Public:
[$________ per Share] [Formula]
Purchase Price by Underwriters:
[$________ per Share] [Formula]
Commission Payable to Underwriters:
$________ per Share
Form of Designated Shares:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]
Specified Funds for Payment of Purchase Price:
Blackout Provisions:
Time of Delivery:
_________ a.m. (New York City time), _________________, 19__
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
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ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent
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33
fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
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(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the issued and outstanding shares of beneficial interest of
the Company (other than issuances of shares upon exercise of
options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference
in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or in property rentals, total revenue, income from
continuing operations before extraordinary item, income per
share from continuing operations or Funds from operations of
the Company and its subsidiaries, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
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(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Shares for purposes of the letter delivered at the Time of Delivery for such
Designated Shares.
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