Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 1, 2002 by and between VORNADO REALTY TRUST, a
Maryland real estate investment trust (the "Company"), and the persons
identified on Schedule A hereto (each a "Holder" and collectively, together with
their respective assigns permitted under Section 6.3 hereof, the "Holders").
WHEREAS, the Company and Xxxxxxx X. Xxxxx Commercial Realty L.L.C., a
Delaware limited liability company and the sole general partner of Xxxxxxx X.
Xxxxx Commercial Realty L.P., a Delaware limited partnership ("SCR"), are
causing an indirect wholly-owned subsidiary of Vornado Realty L.P., a Delaware
limited partnership (the "Partnership") to merge (the "Merger") with and into
SCR and, in connection therewith, the Partnership is issuing 9,518,576 Class A
Units (such units, the "VNOP Units") to the Holders as set forth opposite their
names on Schedule A hereto;
WHEREAS, pursuant to the terms of Section 8.6 and the other related
provisions of the Second Amended and Restated Agreement of Limited Partnership
of the Partnership (such agreement, as amended from time to time, the
"Partnership Agreement"), commencing on the first anniversary of the date of
issuance, and subject to the various limitations contained in the Partnership
Agreement and other instruments being delivered in connection with the Merger,
the Holders will be entitled to redeem their VNOP Units for cash or, at the
Company's election, common shares of beneficial interest, par value $0.04 per
share, of the Company ("Common Shares");
WHEREAS, the Company has agreed to grant to the Holders the
Registration Rights (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
and the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:
SECTION 1. REGISTRATION RIGHTS
Subject to the various terms and conditions of the Partnership
Agreement and the limitations upon Holders' redemption of VNOP Units set forth
in other instruments being delivered in connection with the Merger, if any
Holder receives Common Shares upon redemption of VNOP Units held by such Holder
("Redemption Shares"), then, unless the Redemption Shares are issued to the
Holder pursuant to an Issuer Registration Statement as provided in Section 2
below, each Holder shall be entitled to offer the Redemption Shares for sale
pursuant to a shelf registration statement,
subject to the terms and conditions set forth in Section 3 hereof (the
"Registration Rights").
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 a Holder and included at
the time of issuance in 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 in respect of such Redemption
Shares.
SECTION 3. DEMAND REGISTRATION RIGHTS
3.1 (a) Registration Procedure. Unless such Redemption Shares are
included at the time of issuance in an Issuer Registration Statement as provided
in Section 2 above, 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 sixty (60) days prior to the date on which the Holder desires to
consummate of the sale of Registrable Securities. 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), 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 commercially reasonable 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.)
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Subject to Section 3.2 hereof, the Company agrees to use commercially
reasonable efforts to keep the Registration Statement effective (including the
preparation and filing of any amendments and supplements necessary for that
purpose) until the earlier of (i) the forty-sixth (46th) day following
commencement of the offering contemplated therein (provided, that the forty-five
(45) day period will be extended one day for each day that the Company suspends
the offering pursuant to its rights in Section 3.2 hereof) or, if sooner, the
date on which Holder consummates the sale of all of the Registrable Securities
registered under the Registration Statement and (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 "Act").
The Company agrees to provide each exercising Holder a reasonable number of
copies of the final Prospectus and any amendments or supplements thereto.
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 any Holder's Redemption Shares or any portion thereof in any
Registration Statement (in which event the Company shall be deemed to have
satisfied its registration obligation under this Section 3.1(a)).
In connection with any Registration Statement utilized by the Company
to satisfy the Registration Rights pursuant to this Section 3, each Holder
agrees to cooperate with the Company in connection with the preparation of the
Registration Statement, and each Holder agrees that it will (i) respond within
five (5) Business Days to any written request by the Company to provide or
verify information regarding Holder or Holder's Registrable Securities
(including the proposed manner of sale) that may be required to be included in
such Registration Statement pursuant to the rules and regulations of the
Commission, and (ii) provide in a timely manner information regarding the
proposed distribution by such Holder of the Registrable Securities and such
other information as may be requested by the Company from time to time in
connection with the preparation of and for inclusion in the Registration
Statement and related Prospectus. 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.
(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) above, and upon expiration of such period
no Holder will offer or sell any Registrable Securities under the Registration
Statement. If directed by the Company, each Holder will return all undistributed
copies of the Prospectus in its possession upon the expiration of such period.
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(c) Limitations on Registration Rights. Each exercise of a Registration
Right shall be with respect to a minimum of the lesser of (i) FIFTY THOUSAND
(50,000) Redemption Shares and (ii) the total number of Redemption Shares held
by the exercising Holder at such time plus the number of Redemption Shares that
may be issued upon redemption of VNOP Units by the exercising Holder. The right
of any Holder to deliver a Registration Notice commences upon the first date the
Holder is permitted to redeem VNOP Units pursuant to the Partnership Agreement
and other instruments being delivered in connection with the Merger. 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.
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 affiliates 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 non- disclosure 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 immediately discontinue offers and sales of the Registrable
Securities under the Registration Statement until the Holder receives copies of
a supplemental or amended Prospectus that corrects the misstatement(s) or
omission(s) referred to above and receives notice that any post-effective
amendment has become effective; provided, that the Company may delay, suspend or
withdraw the Registration Statement for such reason for no more than ninety (90)
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 commercially reasonable
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 any
Holder may 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 similar acts
and things which may be reasonably necessary or advisable to enable Holder to
consummate the disposition of the Registrable Securities owned by Holder in each
such jurisdiction;
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provided, however, that the Company shall not be required to (i) 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 Agreement, (ii) take any action that would cause it to become
subject to any taxation in any jurisdiction where it would not otherwise be
subject to such taxation or (iii) take any action that would subject it to the
general service of process in any jurisdiction where it is not now so subject.
3.4 Obligations of the Company. When the Company is required to effect
the registration of Redemption Shares under the Act pursuant to Section 3.1 of
this Agreement, subject to Section 3.2 hereof, the Company shall:
(a) prepare and file with the Commission (as soon as reasonably
practicable after receiving the Registration Notice, and in any event within
sixty (60) days after receipt of such Registration Notice) the requisite
Registration Statement to effect such registration, which Registration Statement
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the Commission
to be filed therewith, and the Company shall use commercially reasonable efforts
to cause such Registration Statement to become effective; provided, however,
that before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, or comparable statements under securities or "blue sky"
laws of any jurisdiction, the Company shall (i) provide each Holder with an
adequate and appropriate opportunity to participate in the preparation of such
Registration Statement and each Prospectus included therein (and each amendment
or supplement thereto or comparable statement) to be filed with the Commission
and (ii) not file any such Registration Statement or Prospectus (or amendment or
supplement thereto or comparable statement) with the Commission to which any
Holder shall have reasonably objected on the grounds that such filing does not
comply in all material respects with the requirements of the Act or of the rules
or regulations thereunder;
(b) prepare and file with the Commission such amendments and
supplements as to the Registration Statement and the Prospectus used in
connection therewith as may be necessary (i) to keep such Registration Statement
effective and (ii) to comply with the provisions of the Act with respect to the
disposition of the Redemption Shares covered by such Registration Statement, in
each case for such time as is contemplated in Section 3.1(a) above; provided,
that in any event the period need not extend beyond nine months from the
effective date of the Registration Statement;
(c) furnish, without charge, to the Holders of the securities covered
by the Registration Statement, such number of copies of the Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement (including
each preliminary
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Prospectus) in conformity with the requirements of the Act, and other documents,
as the Holders may reasonably request in order to facilitate the public sale or
other disposition of the Redemption Shares owned by the Holders;
(d) promptly notify the Holders of securities covered by the
Registration Statement: (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any prospectus supplement related thereto or
post-effective amendment to the Registration Statement has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any state
securities or blue sky authority for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation or
threat of any proceedings for that purpose, and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any Redemption Shares for sale under the securities or "blue sky" laws of any
jurisdiction or the initiation of any proceeding for such purpose;
(e) following receipt of a Registration Notice and thereafter until the
sooner of completion, abandonment or termination of the offering or sale
contemplated thereby and the expiring of the period during which the Company is
required to maintain the effectiveness of the related Registration Statement as
set forth in Section 3.1(a) above, promptly notify the Holders of securities
covered by the Registration Statement: (i) of the existence of any fact of which
the Company is aware or the happening of any event which has resulted in (A) the
Registration Statement, as then in effect, containing an untrue statement of a
material fact or omitting to state a material fact required to be stated therein
or necessary to make any statements therein not misleading or (B) the Prospectus
included in such Registration Statement containing an untrue statement of a
material fact or omitting to state a material fact required to be stated therein
or necessary to make any statements therein, in the light of the circumstances
under which they were made, not misleading and (ii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate or that there exist circumstances not yet disclosed to the public
which make further sales under such Registration Statement inadvisable pending
such disclosure and post-effective amendment; and, if the notification relates
to any event described in either of the clauses (i) or (ii) of this Section
3.4(e), subject to Section 3.2 above, at the request of the Holders, the Company
shall prepare and furnish to the Holders of securities covered by the
Registration Statement, a reasonable number of copies of a supplement or
post-effective amendment to such Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other required
document so that (1) such Registration Statement shall not contain any untrue
statement of a material fact or omit to
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state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (2) as thereafter delivered to the
purchasers of the Redemption Shares being sold thereunder, such Prospectus shall
not include 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,
in the light of the circumstances under which they were made, not misleading;
(f) make available for reasonable inspection by the Holders and any
attorney, accountant or other agent retained by any Holder, material financial
and other relevant information concerning the business and operations of the
Company and the properties of the Company and any subsidiaries thereof as may be
in existence at such time as shall be necessary to enable them to conduct a
reasonable investigation within the meaning of the Act, and cause the Company's
officers, directors and employees to supply such relevant information as may be
reasonably requested by any such parties in connection with such Registration
Statement; provided, however, that, if the Holders or any of their advisors or
agents request any information that the Company determines to be confidential or
non-public, the Company shall be entitled to condition access to that
information upon the Holders and each other recipient of such information having
entered into a confidentiality agreement with the Company in form and substance
satisfactory to the Company acting reasonably, pursuant to which each such
recipient agrees to maintain that information as confidential and use it solely
for the purposes of exercising rights under this Agreement, and provided
further, that the Company shall not be required to disclose any information
subject to the attorney-client or attorney work product privilege if and to the
extent such disclosure would constitute a waiver of such privilege;
(g) use commercially reasonable efforts to cause all such Redemption
Shares to be listed on the national securities exchange on which the Common
Shares are then listed, if the listing of Redemption Shares is then permitted
under the rules of such national securities exchange; and
(h) if requested by any Holder participating in the offering of
Registrable Securities, incorporate in a prospectus supplement or post-effective
amendment such information concerning the Holder or the intended method of
distribution as the Holder reasonably requests to be included therein and as is
appropriate in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of Redemption Shares being
sold, the purchase price being paid therefor and any other material terms of the
offering of the Redemption Shares to be sold in such offering; provided,
however, that the Company shall not be obligated to include in any such
prospectus supplement or post-effective amendment any requested information that
is unreasonable in scope compared with the Company's most recent prospectus or
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prospectus supplement used in connection with a primary or secondary offering of
equity securities by the Company.
3.5 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 Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any of their
officers, directors, employees or representatives, 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 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 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;
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provided, however, that the indemnity provided pursuant to this Section 3.5 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) any Holder's
failure to deliver an amended or supplemental Prospectus provided to the Holder
by the Company if such loss, liability, claim, damage, judgment or expense would
not have arisen had such delivery occurred.
3.6 Indemnification by Holder. Each Holder of securities covered by a
Registration Statement (and each permitted assignee of such Holder, on a several
basis) severally and not jointly agrees to indemnify and hold harmless 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 Act or Section 20 of the Exchange Act, 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
Registrable Securities of such Holder were registered under the 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 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 Holder; and
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(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 3.6
shall only apply 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) any Holder's failure to deliver
an amended or supplemental Prospectus provided to the Holder by the Company if
such loss, liability, claim, damage or expense would not have arisen had such
delivery occurred. Notwithstanding the provisions of this Section 3.6, 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 to the Holder or such permitted
assignee, as the case may be, from sales of the Registrable Securities of the
Holder under the Registration Statement.
3.7 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 3.5 or 3.6 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 3.5 or 3.6 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 indemnified
party reasonably determines that a conflict of interest exists where it is
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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.
3.8 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Sections 3.5 and 3.6 above is for any reason held to be unenforceable by the
indemnified party 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, (i) 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 hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities, or
expenses or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative fault of, but also the relative benefits to, the Company on the one
hand and the Holder on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any 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
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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 3.8 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 3.8, 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.
Notwithstanding the foregoing, 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. For purposes of this Section 3.8, each person, if any, who
controls a Holder within the meaning of Section 15 of the Act 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 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 the
Company of its registration obligations under Sections 2 and 3 above, including
(i) all stock exchange, Commission and state securities registration, listing
and filing fees, (ii) all expenses incurred in connection with the preparation,
printing and distribution 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 this Agreement.
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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 Act and the Exchange
Act so as to enable each Holder to sell Registrable Securities pursuant to Rule
144 under the Act. In connection with any sale, transfer or other disposition by
a Holder of any Registrable Securities pursuant to Rule 144 under the 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 ten (10) 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.
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, to a transferee in connection with a transfer of some or
all of such Holder's VNOP Units in accordance with the terms of the Partnership
Agreement, if such transferee agrees in writing to be bound by all of the
provisions hereof. This Agreement shall inure to the benefit of and be binding
upon all of the parties hereto and their respective successors and permitted
assigns.
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6.4 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 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
6.4 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; 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 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 Business Day next following the
transmission.
6.5 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, shall 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 prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
6.6 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.
6.7 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.
6.8 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.
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6.9 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.
6.10 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.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first herein above
set forth.
VORNADO REALTY TRUST
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President -
Finance and Administration
and Chief Financial Officer
XXXXXXX X. XXXXX
COMMERCIAL REALTY L.L.C.,
as Representative of the Holders
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
