1
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of April 1, 1998 by and between VORNADO REALTY TRUST, a
Maryland real estate investment trust (the "Company"), and the holders of Units
listed on Schedule 1.1(a) hereto (individually, a "Holder" and collectively, the
"Holders").
WHEREAS, each Holder is receiving on the date hereof Class A
common units of limited partnership interest ("Units"), in Vornado Realty L.P.,
a Delaware limited partnership (the "Partnership") or Series B Preferred units
of limited partnership interest that are convertible into Units, pursuant to the
Contribution Agreement, dated as of January 23, 1998 (the "Contribution
Agreement"), between the Company, the Partnership, the persons and entities
listed on Schedule A thereto, Merchandise Mart Properties Holdings, Inc. and
Merchandise Mart Enterprises, Inc.;
WHEREAS, in order to induce the Holders to consummate the
closings contemplated by the Contribution Agreement and related transaction
documents, the Company has agreed to grant to each Holder the Registration
Rights (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
SECTION 1. REGISTRATION RIGHTS
If a Holder receives common shares of beneficial interest of
the Company ("Common Shares") upon redemption of Units received by it in
connection with the Contribution Agreement or in connection with any Units
subsequently received by it upon conversion of any Series B Preferred units of
limited partnership interest in the Partnership received by it pursuant to the
Contribution Agreement (in either such case, the "Redemption Shares") pursuant
to the terms of the Second Amended and Restated Agreement of Limited Partnership
of the Partnership, dated as of October 20, 1997, as the same may be amended
from time to time (the "Partnership Agreement"), then, unless such Redemption
Shares are issued to each such Holder pursuant to an Issuer Registration
Statement as provided in Section 2 below, each Holder shall be entitled to offer
for sale pursuant to a shelf registration statement the Redemption Shares,
subject to the terms and conditions set forth in Section 3 hereof (the
"Registration Rights").
-1-
2
SECTION 2. ISSUER REGISTRATION STATEMENT
Anything contained herein to the contrary notwithstanding, in
the event that the Redemption Shares are issued by the Company to the Holders
pursuant to an effective registration statement (an "Issuer Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission"), the Company shall be deemed to have satisfied all of its
registration obligations under this Agreement.
SECTION 3. DEMAND REGISTRATION RIGHTS
3.1 (a) Registration Procedure. Unless such Redemption Shares
are issued pursuant to an Issuer Registration Statement as provided in Section 2
hereof, then subject to Sections 3.1(c) and 3.2 hereof, if any Holder desires to
exercise its Registration Rights with respect to the Redemption Shares, the
Holder shall deliver to the Company a written notice (a "Registration Notice")
informing the Company of such exercise and specifying the number of shares to be
offered by such Holder (such shares to be offered being referred to herein as
the "Registrable Securities"). Such notice may be given at any time on or after
the date a notice of redemption is delivered by the Holder to the Partnership
pursuant to the Partnership Agreement, but must be given at least fifteen (15)
Business Days prior to the consummation of the sale of Registrable Securities.
As used in this Agreement, a "Business Day" is any Monday, Tuesday, Wednesday,
Thursday or Friday other than a day on which banks and other financial
institutions are authorized or required to be closed for business in the State
of New York or Maryland. Upon receipt of the Registration Notice, the Company,
if it has not already caused the Registrable Securities to be included as part
of an existing shelf registration statement and related prospectus that the
Company then has on file with, and has been declared effective by, the
Commission (the "Shelf Registration Statement") (in which event the Company
shall be deemed to have satisfied its registration obligation under this Section
3 provided that Shelf Registration Statement remains effective for the time
period set forth below), will cause to be filed with the Commission as soon as
reasonably practicable after receiving the Registration Notice a new
registration statement and related prospectus (a "New Registration Statement")
that complies as to form in all material respects with applicable Commission
rules providing for the sale by such Holder of the Registrable Securities, and
agrees (subject to Section 3.2 hereof) to use its best efforts to cause such New
Registration Statement to be declared effective by the Commission as soon as
practicable. (As used herein, "Registration Statement" and "Prospectus" refer to
the Shelf Registration Statement and related prospectus (including any
preliminary prospectus) or the New Registration Statement and related prospectus
(including any preliminary prospectus), whichever is utilized by the Company to
satisfy Holder's Registration Rights pursuant to this Section 3, including in
each case any documents incorporated therein by reference).
Each Holder agrees to provide in a timely manner information
regarding the proposed distribution by such Holder of the Registrable Securities
and such other information reasonably necessary and requested by the Company in
connection with the preparation of and for inclusion in the Registration
Statement. The Company agrees (subject to Section 3.2 hereof) to use its best
efforts to keep the Registration Statement continuously effective (including the
preparation and filing of any amendments, supplements and post-effective
amendments
-2-
3
necessary for that purpose) until the earlier of (i) the date on which Holder
consummates the sale of all of the Registrable Securities registered under the
Registration Statement, or (ii) the date on which all of the Registrable
Securities are eligible for sale pursuant to Rule 144(k) (or any successor
provision) or in a single transaction pursuant to Rule 144(e) (or any successor
provision) under the Securities Act of 1933, as amended (the "Securities Act")
and the Company has provided the transfer agent and registrar of the Common
Shares with instructions to remove all Securities Act legends from the
Registrable Securities. The Company agrees to provide each Holder without charge
a reasonable number of copies of each preliminary prospectus and any amendment
or supplement thereto, and the final Prospectus and any amendments or
supplements thereto. The Company shall, to the extent applicable, notify the
Holders promptly and, if requested by any such Holder, confirm such notification
in writing
(A) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective,
(B) of the issuance by the Commission or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose,
(C) if the Company receives any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and
(D) of the happening of any event during the period a
Registration Statement is effective the result of which is
that such Registration Statement or the related Prospectus
contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made (in the case of the
Prospectus), not misleading. If the Company notifies the
Holders of the occurrence of any such event, each Holder
agrees, as a consequence of the inclusion of any of such
Holder's Registrable Securities in the Registration Statement,
to suspend as soon as possible the use of the Prospectus until
the requisite changes to the Prospectus have been made.
In addition, the Company shall, to the extent applicable: (i) take
every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as
reasonably practicable; (ii) use its best efforts to cause all
Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed; and
(iii) use its reasonable efforts to cause the Registrable Securities
covered by a Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the
Holders to consummate the disposition of such Registrable Securities.
-3-
4
Notwithstanding the foregoing, the Company may at any time, in its sole
discretion and prior to receiving any Registration Notice from any Holder,
include all of such Holder's Redemption Shares or any portion thereof in any
Shelf Registration Statement.
In connection with any Registration Statement utilized by the
Company to satisfy Holder's Registration Rights pursuant to this Section 3, each
Holder agrees that it will respond within ten (10) Business Days to any written
request by the Company to provide or verify information regarding Holder or
Holder's Registrable Securities as may be required to be included in that
particular Registration Statement pursuant to the rules and regulations of the
Commission; provided, however, that any Holder which does not respond to the
Company within such ten (10) day period shall be entitled to have such Holder's
Registrable Securities included in such Registration Statement if such
Registration Statement has not yet become effective upon responding to the
Company's written request.
(b) Offers and Sales. All offers and sales by a Holder under
the Registration Statement referred to in this Section 3 shall be completed
within the period during which the Registration Statement is required to remain
effective pursuant to Section 3.1(a) of this Section 3, and upon expiration of
such period Holder will not offer or sell any Registrable Securities under the
Registration Statement. If directed by the Company, the Holder will return all
undistributed copies of the Prospectus in its possession upon the expiration of
such period.
(c) Limitations on Registration Rights. Each exercise of a
Registration Right shall be with respect to a minimum of the lesser of (i)
twenty-five thousand (25,000) Common Shares (which may consist of Redemption
Shares held by one or more Holders) or (ii) the total number of Redemption
Shares held by the exercising Holder or Holders at such time. The right of any
Holder to deliver a Registration Notice commences sixty (60) days prior to the
first date the Holder is permitted to redeem Units pursuant to the Partnership
Agreement. The right of any Holder to deliver a Registration Notice shall expire
on the date on which all of the Redemption Shares held by the Holder or issuable
upon redemption of Units held by the Holder are eligible for sale pursuant to
Rule 144(k) (or any successor provision) or in a single transaction pursuant to
Rule 144(e) (or any successor provision) under the Act. The Registration Rights
granted pursuant to this Section 3.1 may not be exercised in connection with any
underwritten public offering by the Company consisting of securities to be sold
exclusively by the Company without the prior written consent of the Company.
3.2 Suspension of Offering. Upon any notice by the Company,
either before or after a Holder has delivered a Registration Notice, that a
negotiation or consummation of a transaction by the Company or any of its
subsidiaries is pending or an event has occurred, which negotiation,
consummation or event would require additional disclosure by the Company in the
Registration Statement of material information which the Company has a bona fide
business purpose for keeping confidential and the nondisclosure of which in the
Registration Statement might cause the Registration Statement to fail to comply
with applicable disclosure requirements (a "Materiality Notice"), each Holder
agrees that it will as soon as possible discontinue offers and sales of the
Registrable Securities under the Registration Statement until the Holder
receives copies of a supplemented or amended Prospectus that corrects the
misstatement(s) or omission(s) referred to above and receives notice that any
post-effective
-4-
5
amendment has become effective; provided, that the Company may delay, suspend or
withdraw the Registration Statement for such reason for no more than sixty (60)
days after delivery of the Materiality Notice at any one time. If so directed by
the Company, Holder will deliver to the Company all copies of the Prospectus
covering the Registrable Securities current at the time of receipt of any
Materiality Notice.
3.3 Qualification. The Company agrees to use its best efforts
to register or qualify the Registrable Securities by the time the applicable
Registration Statement is declared effective by the Commission under all
applicable state securities or "blue sky" laws of such jurisdictions as a Holder
shall reasonably request in writing, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective pursuant to this Agreement or during the period
offers or sales are being made by Holder after delivery of a Registration Notice
to the Company, whichever is shorter, and to do any and all other acts and
things which may be reasonably necessary or advisable to enable Holder to
consummate the disposition in each such jurisdiction of the Registrable
Securities owned by Holder; provided, however, that the Company shall not be
required to (x) qualify generally to do business in any jurisdiction or to
register as a broker or dealer in such jurisdiction where it would not otherwise
be required to qualify but for this Section 3.3, (y) subject itself to taxation
in any such jurisdiction, or (z) submit to the general service of process in any
such jurisdiction.
3.4 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
officers, directors, shareholders, partners, employees, agents and
representatives of each Holder and each such controlling Person (collectively,
the "Holder Indemnified Parties") as follows:
(i) against any and all loss, liability, claim,
damage, judgment and expense whatsoever, as incurred, arising
out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Securities
Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage, judgment and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental
-5-
6
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph
(i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 3.4 does
not apply to any Holder with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of (A) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or (B) such Holder's
failure to deliver an amended or supplemented Prospectus if such loss,
liability, claim, damage, judgment or expense would not have arisen had such
delivery occurred.
3.5 Indemnification by Holder. Each Holder (and each permitted
assignee of such Holder, on a several basis) severally agrees to indemnify and
hold harmless (a) the Company, and each of its trustees/directors and officers
(including each trustee/director and officer of the Company who signed a
Registration Statement), and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and (b) the other Holder Indemnified Parties, as follows:
(i) against any and all loss, liability, claim,
damage, judgment and expense whatsoever, as incurred, arising
out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Securities
Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
-6-
7
(ii) against any and all loss, liability, claim,
damage, judgment and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Holder; and
(iii) against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph
(i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 3.5
shall only apply with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). Notwithstanding the provisions of this Section
3.5, a Holder and any permitted assignee shall not be required to indemnify the
Company, its officers, trustees/directors or control persons with respect to any
amount in excess of the amount of the total proceeds received by such Holder or
such permitted assignee, as the case may be, from sales of the Registrable
Securities of such Holder under the Registration Statement, and no Holder shall
be liable under Section 3.5 for any statements or omissions of any other Holder.
3.6 Conduct of Indemnification Proceedings. An indemnified
party hereunder shall give reasonably prompt notice to the indemnifying party of
any action or proceeding commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify the indemnifying party (i) shall
not relieve it from any liability which it may have under the indemnity
agreement provided in Section 3.4 or 3.5 above, unless and only to the extent it
did not otherwise learn of such action and the lack of notice by the indemnified
party results in the forfeiture by the indemnifying party of substantial rights
and defenses, and (ii) shall not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided under Section 3.4 or 3.5 above. If the indemnifying party so
elects within a reasonable time after receipt of such notice, the indemnifying
party may assume the defense of such action or proceeding at such indemnifying
party's own expense with counsel chosen by the indemnifying party and approved
by the indemnified party, which approval shall not be unreasonably withheld;
provided, however, that the indemnifying party will not settle any such action
or proceeding without the written consent of the indemnified party unless, as a
condition to such settlement, the indemnifying party secures the unconditional
release of the indemnified party; and provided further, that if the
-7-
8
indemnified party reasonably determines that a conflict of interest exists where
it is advisable for the indemnified party to be represented by separate counsel
or that, upon advice of counsel, there may be legal defenses available to it
which are different from or in addition to those available to the indemnifying
party, then the indemnifying party shall not be entitled to assume such defense
and the indemnified party shall be entitled to separate counsel at the
indemnifying party's expense. If the indemnifying party is not entitled to
assume the defense of such action or proceeding as a result of the second
proviso to the preceding sentence, the indemnifying party's counsel shall be
entitled to conduct the indemnifying party's defense and counsel for the
indemnified party shall be entitled to conduct the defense of the indemnified
party, it being understood that both such counsel will cooperate with each other
to conduct the defense of such action or proceeding as efficiently as possible.
If the indemnifying party is not so entitled to assume the defense of such
action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party will
pay the reasonable fees and expenses of counsel for the indemnified party. In
such event, however, the indemnifying party will not be liable for any
settlement effected without the written consent of the indemnifying party. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding.
3.7 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Sections 3.4 and 3.5 above is for any reason held to be unenforceable although
applicable in accordance with its terms, the Company and the relevant Holder
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holder, in such proportion as is appropriate to reflect the
relative fault of and benefits to the Company on the one hand and the Holder on
the other, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities, judgments or expenses, or other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things, the
total proceeds received by the indemnifying party and indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, the indemnifying party or the
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 3.7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 3.7, a Holder shall
not be required to contribute any amount in excess of the amount of the total
proceeds to the Holder from sales of the Registrable Securities of such Holder
under the Registration Statement.
-8-
9
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 3.7, each person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act and directors, officers, stockholders, partners, employees, agents and
representatives of a Holder and of each person, if any, who controls such Holder
shall have the same rights to contribution as the Holder, and each
trustee/director of the Company, each officer of the Company who signed a
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
SECTION 4. EXPENSES
The Company shall pay all expenses incident to the performance
by it of its registration obligations under this Agreement, including, but not
limited to, (i) all stock exchange, Commission and state securities
registration, listing and filing fees, (ii) all expenses incurred in connection
with the preparation, printing and distributing of any Issuer Registration
Statement or Registration Statement and Prospectus, and (iii) fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company. Each Holder shall be responsible for the payment of
any brokerage and sales commissions, fees and disbursements of the Holder's
counsel, accountants and other advisors, and any transfer taxes relating to the
sale or disposition of the Registrable Securities by such Holder pursuant to
Section 3 or otherwise.
SECTION 5. RULE 144 COMPLIANCE
The Company covenants that it will use its best efforts to
timely file the reports required to be filed by the Company under the Securities
Act and the Exchange Act so as to enable each Holder to sell Registrable
Securities pursuant to Rule 144 under the Securities Act. In connection with any
sale, transfer or other disposition by any Holder of any Registrable Securities
pursuant to Rule 144 under the Securities Act, the Company shall cooperate with
the Holder to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any Securities
Act legend, and enable certificates for such Registrable Securities to be for
such number of shares and registered in such names as Holder may reasonably
request at least five (5) Business Days prior to any sale of Registrable
Securities hereunder.
SECTION 6. MISCELLANEOUS
6.1 Integration; Amendment. This Agreement constitutes the
entire agreement among the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior oral or
written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. Except as otherwise expressly provided
in this Agreement, no amendment, modification or discharge of this Agreement
shall be valid or binding unless set forth in writing and duly executed by the
Company and each Holder against whom such amendment, modification or discharge
is sought to be enforced.
-9-
10
6.2 Waivers. No waiver by a party hereto shall be effective
unless made in a written instrument duly executed by the party against whom such
waiver is sought to be enforced, and only to the extent set forth in such
instrument. Neither the waiver by any of the parties hereto of a breach or a
default under any of the provisions of this Agreement, nor the failure of any of
the parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
6.3 Assignment; Successors and Assigns. This Agreement and the
rights granted hereunder may not be assigned by any Holder without the written
consent of the Company; provided, however, that a Holder may assign its rights
and obligations hereunder, following at least five (5) days' prior written
notice to the Company, (i) to the direct equity owners (e.g., partners or
members) or beneficiaries in connection with a distribution of such Holder's
Units to its equity owners or beneficiaries and (ii) to a permitted transferee
in connection with a transfer of such Holder's Units in accordance with the
terms of the Partnership Agreement, if, in the case of (i) and (ii) above, such
persons agree in writing to be bound by all of the provisions hereof. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of all of the parties hereto.
6.4 Burden and Benefit. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and, subject to
Section 6.3 above, assigns.
6.5 Notices. All notices called for under this Agreement shall
be in writing and shall be deemed given upon receipt if delivered personally or
by facsimile transmission and followed promptly by mail, or mailed by registered
or certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth opposite their names in Schedule A hereto, or to any
other address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner provided
in this Section 6.5 for the service of notices; provided, however, that notices
of a change of address shall be effective only upon receipt thereof. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have
been given and received on the day it was received; and if any party rejects
delivery of any notice attempted to be given hereunder, delivery shall be deemed
given on the date of such rejection. Any notice sent by facsimile transmission
shall be deemed to have been given and received on the day of the transmission;
provided, however, that if such day is not a Business Day then the notice shall
be deemed to have been given and received on the Business Day next following
such day.
6.6 Specific Performance. The parties hereto acknowledge that
the obligations undertaken by them hereunder are unique and that there would be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, may be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to
-10-
11
prevent a breach or contemplated breach of this Agreement in any court of the
United States or any State thereof having jurisdiction.
6.7 Governing Law. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York,
but not including the choice of law rules thereof.
6.8 Headings. Section and subsection headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
6.9 Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
6.10 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signature of or on behalf of each party appears on
each counterpart, but it shall be sufficient that the signature of or on behalf
of each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.
6.11 Severability. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
* * *
-11-
12
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be duly executed on their behalf as of the date first
hereinabove set forth.
VORNADO REALTY TRUST
By: /s/ Xxxxxx Xxxxxx
_______________________________
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
EACH OF THE HOLDERS OF
UNITS LISTED ON SCHEDULE A
HERETO
MERCHANDISE MART ENTERPRISES,
L.L.C.
By: /s/ Xxxxxx Xxxxx
____________________________
Name: Xxxxxx Xxxxx
Title: Manager
WASHINGTON DESIGN CENTER, L.L.C.
By: Mart Holdings Group, Inc. (DC), its
manager
By: /s/ Xxxxxx Xxxxx
_______________________________
Name: Xxxxxx Xxxxx
Title: President
MERCHANDISE MART OWNERS, L.L.C.
By: Mart Holdings Group, Inc. (IL), its
manager
By: /s/ Xxxxxx Xxxxx
_______________________________
Name: Xxxxxx Xxxxx
Title: President
13
WORLD TRADE CENTER CHICAGO,
L.L.C.
By: Mart Holdings Group, Inc. (IL), its
manager
By: /s/ Xxxxxx Xxxxx
_______________________________
Name: Xxxxxx Xxxxx
Title: President
14
SCHEDULE A
VORNADO REALTY L.P.
PARTNERS AND PARTNERSHIP INTERESTS
Name Address
---- -------
Merchandise Mart Enterprises, L.L.C. c/o Merchandise Mart Properties
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager
Washington Design Center, L.L.C. c/o Merchandise Mart Properties
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager
Merchandise Mart Owners, L.L.C. c/o Merchandise Mart Properties
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager
World Trade Center Chicago, L.L.C. c/o Merchandise Mart Properties
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager
1
