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Exhibit 1.1
Vornado Realty Trust
Preferred Shares of Beneficial Interest
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Underwriting Agreement
April 3, 1997
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) certain shares of its Preferred Shares of
Beneficial Interest, no par value 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 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
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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. 33-52441
and 33-62395) 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 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
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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 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 has been duly organized and is validly
existing as a real estate investment trust in good standing under the
laws of the State of Maryland, with trust power and authority to own,
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lease and operate its properties and to conduct its business as
described in the Prospectus 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) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate 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 corporation 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 disclosed in the Prospectus.
(g) The Company has an authorized capitalization as set forth
in the Prospectus (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
non-assessable;
(h) The Shares have been duly and validly 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 non-assessable; the Shares conform to the description
thereof contained in the Registration Statement and the Designated
Shares will conform to the description thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Shares;
(i) If the Designated Shares are convertible into common
shares of beneficial interest, par value $.04 per share, of the Company
("Common Shares"), a sufficient number of Common Shares will be validly
authorized and reserved for issuance at all times upon conversion of
the Designated Shares; and, if and when Designated Shares are converted
into Common Shares, such Common Shares will be validly issued, fully
paid and nonassessable.
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(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
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 By-laws 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, 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 charter documents or by-laws 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;
(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",
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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 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
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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
release, 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 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 or the Common 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.
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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 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
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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;
(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
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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 beginning from the date of the
Pricing Agreement for such Designated Shares and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Shares, as notified to the Company by the
Representatives, and (ii) the last Time of Delivery for such Designated
Shares, not to offer, sell, contract to sell or otherwise dispose of,
or announce its intent to take any such action, except as provided
hereunder, any securities of the Company that are substantially similar
to the Designated Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the
right to receive, Common Shares or Preferred Shares or any such
substantially similar securities (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) without the prior written consent
of the Representatives.
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:
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(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 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), (iii),
(v), (vi), and (xi) 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 organized and existing under the laws of the State
of Maryland and is in good standing with the State Department
of Assessments and Taxation of Maryland;
(ii) The Company has the trust power and
authority to own, lease and operate its properties and conduct
its business substantially as described in the Prospectus and
the Company has the trust power and authority to enter into
and perform its obligations under this Agreement and the
Pricing Agreement relating to the Designated Shares;
(iii) 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 pursuant to this Agreement and the Pricing Agreement
with respect to the Designated Shares against payment pursuant
to such agreements, the Designated Shares will be validly
issued, fully paid and nonassessable;
(iv) Such counsel does not know of any litigation
or governmental proceedings instituted or threatened against
the Company or any of its subsidiaries that would be required
to be disclosed in the Prospectus and is not so disclosed; and
such counsel does not know of any documents that are required
to be filed as exhibits to the Registration Statement and are
not so filed or of any documents that are required to be
summarized in the Prospectus that are not so summarized;
(v) This Agreement and the Pricing Agreement
with respect to the Designated Shares have been duly
authorized, executed and delivered by the Company;
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(vi) The Registration Statements have been
declared effective under the Act, and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statements have been issued
and no proceedings for that purpose have been instituted or
are pending under the Act; and
(vii) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company under the Federal laws of the United States and the
laws of the State of New York for the issuance, sale and
delivery of the Designated Shares by the Company to the
Underwriters have been obtained or made; provided, however,
that for purposes of this paragraph (vii), such counsel need
not express any opinion with respect to state securities laws;
(viii) 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 by-laws 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 (viii), to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; provided, however,
that for purposes of this paragraph (viii), such counsel need
not express any opinion with respect to federal or state
securities laws, other antifraud laws or fraudulent transfer
laws;
(ix) 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;
(x) 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;
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(xi) 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 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 (viii) above and except
for those made under the heading "Description of Common
Shares" in the Prospectus insofar as they relate to the
provisions of documents therein described, and that such
counsel need not express any opinion or belief as to the
financial statements 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, 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:
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(i) The Company is a real estate investment
trust duly organized and existing under the laws of the State
of Maryland and is in good standing with the State Department
of Assessments and Taxation of Maryland;
(ii) The Company has the power to own, lease and
operate its properties and to conduct its business
substantially as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the
applicable Pricing Agreement;
(iii) The 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 or, to the best of such counsel's
knowledge, otherwise;
(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, the Designated Shares will be
validly issued, fully paid and nonassessable;
(v) The information in the Prospectus under the
heading "Description of Shares of Beneficial Interest" and
under such other heading 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 in the Prospectus and the form
of certificate used to evidence the Designated Shares is in
due and proper form in accordance with 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 or, to the best of such counsel's knowledge,
otherwise;
(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 1933 Act or the 1933
Act Regulations or securities laws or regulations of any state
or other jurisdiction;
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(ix) This Agreement and the applicable Pricing
Agreement relating to the Designated Shares have been duly
authorized, executed and delivered by the Company;
(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 law or administrative regulation or, to the
best knowledge of such counsel, administrative or court
decree, 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 similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(xi) [If the Designated Shares are convertible
into Common Shares:] The Common Shares reserved for issuance
upon conversion of the Designated Shares have been validly
authorized and reserved for such purpose; and, if and when the
Designated Shares are converted into Common Shares in
accordance with the conversion rights set forth in the
Articles Supplementary relating to such Designated Shares,
such Common Shares will be validly issued, fully paid and
nonassessable, and the issuance of such shares will not be
subject to any preemptive or similar rights; and
(xii) [If the Designated Shares are convertible
into Common Shares:] The Articles Supplementary relating to
the Designated Shares have been duly authorized and executed
in accordance with the laws of the State of Maryland and have
been filed with the State Department of Assessments and
Taxation of the State of Maryland on or prior to the Time of
Delivery;
In giving these opinions, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx
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 corporate 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
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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 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 stock 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 Shares at each
Time of Delivery shall have been duly listed, subject to notice of
issuance, on the NYSE;
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(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 any
such action, any Shares or Common Shares or any security convertible or
exchangeable for Shares or Common 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 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 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
against any losses, claims, damages or liabilities to which the Company 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
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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 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 such Underwriter
directly or through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company 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 permitted by applicable law or if
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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 under this Section 8 shall be in
addition to any liability which the Company 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 and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
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
19
20
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 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 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 any officer or director or controlling person of the Company, 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
20
21
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 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: Secretary; 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 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.
21
22
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 Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Chairman and Chief Executive
Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
23
ANNEX I
Pricing Agreement
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
, 19..
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 .......... , 1997 (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.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, 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
24
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.]
25
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.)
26
SCHEDULE I
Maximum Number
of Optional
Number of Shares Which
Firm Shares May be
Underwriter to be Purchased Purchased
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co.
[Name(s) of Co-Representative(s)]
[Names of other Underwriters]............................
Total....................................................
27
SCHEDULE II
Title of Designated Shares:
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 in [specify same form of funds as in Specified Funds below
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:
28
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 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;
29
(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;
(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
30
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
(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
31
applicable Designated Shares for purposes of the letter delivered at the Time of
Delivery for such Designated Shares.
