--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
6.75% Series F Cumulative Redeemable
Preferred Shares of Beneficial Interest
(Liquidation Preference $25.00 Per Share)
UNDERWRITING AGREEMENT
----------------------
Dated: November 10, 2004
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Underwriting Agreement.........................................................1
SECTION 1. Representations and Warranties...............................2
(a) Representations and Warranties by the Company................2
(i) Incorporated Documents.................................2
(ii) Compliance with Registration Requirements.............3
(iii) Form S-3 Eligibility..................................3
(iv) No Material Adverse Change in Business................3
(v) Good Standing of the Company...........................3
(vi) Qualification as a REIT...............................4
(vii) Good Standing of the Operating Partnership...........4
(viii) Good Standing of Subsidiaries.......................4
(ix) Capitalization........................................4
(x) Authorization and Description of the Preferred Shares..5
(xi) Absence of Conflicts and Defaults.....................5
(xii) Authorization of this Underwriting Agreement.........5
(xiii) Absence of Proceedings..............................5
(xiv) No Violations or Defaults...........................6
(xv) Accuracy of Certain Descriptions.....................6
(xvi) Investment Company Act..............................6
(xvii) Independent Public Accountants......................6
(xviii) Financial Statements................................6
(xix) Title to Property...................................7
(xx) Environmental Laws...................................7
(xxi) No Stabilizing Actions..............................8
(b) Officer's Certificates.......................................8
SECTION 2. Sale and Delivery to the Underwriters; Closing...............8
(a) Securities...................................................8
(b) Payment......................................................9
(c) Denominations; Registration..................................9
SECTION 3. Covenants of the Company.....................................9
(a) Delivery of Registration Statements..........................9
(b) Delivery of Prospectus.......................................9
(c) Continued Compliance with Securities Laws...................10
(d) Rule 158....................................................10
(e) Use of Proceeds.............................................10
(f) Listing.....................................................10
SECTION 4. Payment of Expenses.........................................10
(a) Expenses....................................................10
(b) Termination of Agreement....................................11
SECTION 5. Conditions of Underwriters' Obligations.....................11
i
(a) Effectiveness of Registration Statement.....................11
(b) Opinions of Counsel for the Company.........................11
(c) Opinion of Special Maryland Counsel for the Company.........11
(d) Opinion of Counsel for the Underwriters.....................12
(e) Officers' Certificate.......................................12
(f) Accountants' Comfort Letter.................................12
(g) Bring-down Comfort Letter...................................12
(h) Maintenance of Rating.......................................12
(i) Approval of Listing.........................................13
(j) Reserved....................................................13
(k) Additional Documents........................................13
(l) Termination of Agreement....................................13
SECTION 6. Indemnification.............................................13
(a) Indemnification of Underwriters.............................13
(b) Indemnification of Company, Operating Partnership,
Trustees, Partners and Officers.............................14
(c) Actions against Parties; Notification.......................14
(d) Settlement without Consent if Failure to Reimburse..........15
SECTION 7. Contribution................................................15
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery....................................................16
SECTION 9. Termination of Agreement....................................16
(a) Termination; General........................................17
(b) Liabilities.................................................17
SECTION 10. Default by One or More of the Underwriters..................17
SECTION 11. Notices.....................................................18
SECTION 12. Parties.....................................................18
SECTION 13. Governing Law and Time......................................19
SECTION 14. Effect of Headings..........................................19
SCHEDULES
Schedule A - List of Underwriters.............................Sch A-1
Schedule B - Terms of Preferred Shares........................Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
Exhibit B - Form of Opinion of Special Maryland Counsel to
the Company.............................................B-1
ii
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
6,000,000 Shares
6.75% Series F Cumulative Redeemable
Preferred Shares of Beneficial Interest
(No Par Value Per Share)
Underwriting Agreement
----------------------
November 10, 2004
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Citigroup Global Markets Inc.
("Citigroup") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") each of the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Citigroup and Xxxxxxx Xxxxx
are acting as Representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the number of 6.75% Series F
Cumulative Redeemable Preferred Shares of Beneficial Interest, no par value per
share, of the Company ("Preferred Shares") set forth above. The aforesaid
6,000,000 Preferred Shares to be purchased by the Underwriters are hereinafter
called the "Securities."
The Company understands that the Underwriters propose to offer the
Securities (the "Offering") as soon after the execution and delivery hereof as
in the judgment of the Representatives is advisable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3, including a
prospectus relating to the Preferred Shares and other securities of the Company
for the registration of such securities under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statements have been declared
effective by the Commission. A prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein has been
prepared or will be prepared and will be filed in accordance with the provisions
of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule
424(b), is hereinafter called the "Prospectus Supplement." Such registration
statements, as amended at the date hereof, including all documents incorporated
or deemed to be incorporated by reference therein and the exhibits thereto, and
schedules thereto, if any, are hereinafter called the "Registration Statement"
and the basic prospectus included therein and relating to all offerings of
securities under the Registration Statement, as supplemented by the Prospectus
Supplement, is hereinafter called the "Prospectus," except that if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424(b), the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement, including the documents filed
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), that are incorporated by reference therein.
For purposes of this Agreement, all references to the Registration Statement or
the Prospectus or any amendment or supplement to either of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "stated," "described,"
"discussed" or "set forth" in the Registration Statement or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by reference
in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof and agrees with each
Underwriter, as follows:
(i) Incorporated Documents. The documents incorporated by reference in
the Registration Statement and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made; and any further documents so filed and
incorporated by reference in the Registration Statement and the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of the
2
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus, in each case as amended or supplemented, relating to such
Preferred Shares;
(ii) Compliance with Registration Requirements. The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the 1933 Act and the 1933
Act Regulations and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances under
which they were made; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by any Underwriter through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Preferred Shares;
(iii) Form S-3 Eligibility. The Company meets the requirements for use
of Form S-3 under the 1933 Act and has filed with the Commission one or
more registration statements on Form S-3, including a prospectus relating
to the Preferred Shares and other securities of the Company for the
registration of such securities under the 1933 Act and such registration
statements have been declared effective by the Commission;
(iv) No Material Adverse Change in Business. Neither the Company nor
any of its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, there has
not been any change in the capitalization or long-term debt of the Company
or any material adverse change in or affecting the condition, financial or
otherwise, or the earnings or business affairs (a "Material Adverse
Effect") of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(v) Good Standing of the Company. The Company is a real estate
investment trust duly formed and existing under the laws of the State of
Maryland in good standing with the State Department of Assessments and
Taxation of Maryland, with trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and
3
the Company is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole;
(vi) Qualification as a REIT. The Company is organized and, commencing
with its taxable year ended December 31, 1993, has operated in conformity
with the requirements for qualification as a real estate investment trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and currently intends to operate in a manner which allows the
Company to continue to meet the requirements for taxation as a REIT under
the Code;
(vii) Good Standing of the Operating Partnership. Vornado Realty L.P.
(the "Operating Partnership") has been duly formed and is validly existing
as a limited partnership in good standing under the laws of the State of
Delaware and has partnership power and authority to own, lease and operate
its properties and to conduct its business substantially as described in
the Prospectus and is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a Material Adverse Effect on the Operating Partnership; all
of the issued and outstanding limited partnership interests in the
Operating Partnership have been duly authorized and validly issued and are
fully paid and (except for the general partner interest) nonassessable; the
Company is the sole general partner of, and owned an approximately 86.8%
common limited partnership interest in, the Operating Partnership as of
September 30, 2004;
(viii) Good Standing of Subsidiaries. Each subsidiary of the Company,
other than the Operating Partnership, which is covered in paragraph (vii)
above, has been duly formed and is validly existing in good standing under
the laws of the jurisdiction of its organization and has power and
authority to own, lease and operate its properties and to conduct its
business substantially as described in the Prospectus and is duly qualified
as a foreign organization to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a Material Adverse
Effect on the Company and its subsidiaries taken as a whole; all of the
issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and is owned
by the Company or the Operating Partnership, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, except as would not have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole and
except as disclosed in the Prospectus;
(ix) Capitalization. The Company has an authorized capitalization as
set forth in its Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2004 (except for subsequent issuances, if any, pursuant
to this Agreement or pursuant to the terms of reservations, agreements or
employee benefit plans, including, without
4
limitation, dividend reinvestment plans and employee or director stock
option plans or as otherwise described in the Prospectus or the exercise of
options outstanding on the date hereof);
(x) Authorization and Description of the Preferred Shares. The
Preferred Shares have been duly authorized, and, when the Securities are
issued and delivered pursuant to this Agreement, such Securities will be
duly and validly issued and fully paid and nonassessable; the Preferred
Shares conform to the description thereof contained in the Prospectus under
the caption "Description of Shares of Beneficial Interest of Vornado Realty
Trust" and the Securities will conform to the description thereof contained
in the Prospectus Supplement under the caption "Description of the Series F
Preferred Shares" and such description will conform to the rights set forth
in the Articles Supplementary designating the Securities in each case in
all material respects;
(xi) Absence of Conflicts and Defaults. The issue and sale of the
Preferred Shares and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary trust action
of the Company and, except as would not have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole, will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Amended and Restated Declaration
of Trust, as amended, or Bylaws of the Company or (except as where such
violation would not cause a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or any adverse effect on the Company's
ability to consummate the transactions contemplated hereby) any statute or
any order, rule or regulation of any court or governmental authority,
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Preferred Shares or the consummation
by the Company of the transactions contemplated by this Agreement, except
such as have been, or will have been prior to the Closing Time, obtained
under the 1933 Act and the 1933 Act Regulations and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Preferred Shares by the Underwriters;
(xii) Authorization of this Underwriting Agreement. This Agreement has
been duly authorized by all necessary trust action of the Company and all
necessary partnership action of the Operating Partnership and has been
executed and delivered by the Company and the Operating Partnership;
(xiii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries
5
is the subject, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or the 1933 Act Regulations which have not been
so filed, except where the failure to file such exhibit would not amount to
an untrue statement of a material fact or omission of a statement of a
material fact required to make the statements in the Registration Statement
not misleading in light of the circumstances under which they were made;
(xiv) No Violations or Defaults. Neither the Company nor any of its
subsidiaries is in violation of its organizational documents or bylaws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
or assets may be bound, which default would have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole;
(xv) Accuracy of Certain Descriptions. The statements set forth in the
Prospectus under the captions "Description of Shares of Beneficial Interest
of Vornado Realty Trust," "Description of the Series F Preferred Shares,"
"Federal Income Tax Considerations," "Plan of Distribution" and
"Underwriting," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair
summaries in all material respects;
(xvi) Investment Company Act. Neither the Company nor the Operating
Partnership is subject to registration as an "investment company" under the
Investment Company Act;
(xvii) Independent Public Accountants. Deloitte & Touche LLP, who have
certified certain financial statements and financial statement schedules of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement, are an independent public accounting firm with
respect to the Company as required by the 1933 Act and the 1933 Act
Regulations;
(xviii) Financial Statements. The financial statements and the
financial statement schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries as at
the dates indicated, the results of their operations for the periods
specified and the information required to be stated therein; and said
financial statements and financial statement schedules have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The selected financial
data included or incorporated by reference in the Prospectus present
fairly, in all material respects, the information shown therein and have
been compiled on
6
a basis consistent with that of the consolidated financial statements
included or incorporated by reference in the Registration Statement. Any
pro forma financial statements and other pro forma financial information
included in the Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and present fairly the information shown
therein; the pro forma adjustments, if any, have been properly applied to
the historical amounts in the compilation of such statements, and in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein;
(xix) Title to Property. Except as otherwise disclosed in the
Prospectus, and except as would not have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole: (i) each of the Company and
its subsidiaries has good and marketable title to all properties and assets
described in the Prospectus as owned by such party; (ii) all of the leases
under which the Company or any of its subsidiaries holds or uses real
property or assets as a lessee are in full force and effect, and neither
the Company nor any of its subsidiaries is in material default in respect
of any of the terms or provisions of any of such leases and no claim has
been asserted by anyone adverse to any such party's rights as lessee under
any of such leases, or affecting or questioning any such party's right to
the continued possession or use of the leased property or assets under any
such leases; (iii) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of the Company or
any of its subsidiaries that are required to be disclosed in the Prospectus
are disclosed therein; (iv) neither the Company, any of its subsidiaries
nor, to the knowledge of the Company, any lessee of any portion of any such
party's properties is in default under any of the leases pursuant to which
the Company or any of its subsidiaries leases its properties to third
parties and neither the Company nor any of its subsidiaries knows of any
event which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases; (v) no tenant under
any lease pursuant to which the Company or any of its subsidiaries leases
its properties has an option or right of first refusal to purchase the
premises leased thereunder; (vi) to the best of its knowledge, each of the
properties of the Company or any of its subsidiaries complies with all
applicable codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
will in any manner affect the size or use of, improvements or construction
on or access to the properties of the Company or any of its subsidiaries;
(xx) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a Material Adverse
Effect on the Company and its subsidiaries taken as a whole:
A. each of the Company and its subsidiaries is in compliance with
all applicable laws relating to pollution or the discharge of materials
into the environment, including common law standards of conduct
relating to damage to property or injury to persons caused by such
materials ("Environmental Laws"), each of the Company and its
subsidiaries currently holds all governmental
7
authorizations required under Environmental Laws in order to conduct
their businesses as described in the Prospectus, and neither the
Company nor any of its subsidiaries has any basis to expect that any
such governmental authorization will be modified, suspended or revoked,
or cannot be renewed in the ordinary course of business;
B. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release, or disposal of any
material (including radiation and noise), that could reasonably be
expected to form the basis of any claim (whether by a governmental
authority or other person or entity) under Environmental Laws for
cleanup costs, damages, penalties, fines, or otherwise, against any of
the Company or its subsidiaries, or against any person or entity whose
liability for such claim may have been retained by any of the Company
or its subsidiaries, whether by contract or law; and
C. the Company and its subsidiaries have made available to the
Representatives or counsel for the Underwriters all material studies,
reports, assessments, audits and other information in their possession
or control relating to any pollution or release, threatened release or
disposal of materials regulated under Environmental Laws on, at, under,
from or transported from any of their currently or formerly owned,
leased or operated properties, including, without limitation, all
information relating to underground storage tanks and asbestos
containing materials.
(xxi) No Stabilizing Actions. Except as in compliance with Regulation
M, neither the Company nor the Operating Partnership has taken, and neither
the Company nor the Operating Partnership will take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Preferred Shares.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule B, the number of Securities set forth
in Schedule A opposite the name of such Underwriters, plus any additional number
of Securities which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof.
8
(b) Payment. Payment of the purchase price for, and delivery through
the facilities of The Depository Trust Company ("DTC") of certificates for, the
Securities shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall
be agreed upon by Citigroup on behalf of the Underwriters and the Company, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof, or
such other time not later than ten business days after such date as shall be
agreed upon by Citigroup on behalf of the Underwriters and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
through the facilities of DTC to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Underwriter may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of experts. The
copies of the Registration Statement and each amendment thereto furnished to the
Representatives will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T of the Commission.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will inform
the Representatives of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Representatives
with copies of any such amendment or supplement a reasonable time in advance of
filing; and will not file any such amendment or supplement in a form to which
the Representatives or counsel to the Underwriters shall reasonably object (it
being understood that the terms "amendment" and "supplement" do not include
documents filed by the Company pursuant to the 1934 Act).
(b) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
9
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T of the Commission.
(c) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"), so as
to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus, except where the failure to comply will
not adversely affect the distribution of the Securities. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary for the Company to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(d) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(e) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(f) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and printing of this Agreement, any Agreement
among the Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates for the Securities to
DTC or its designated custodian or the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
10
disbursements of the Company's counsel and accountants, (v) the qualification,
if any, of the Securities under state securities laws, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of a Blue Sky Survey
and any supplement thereto, if any, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the fees and expenses of any
transfer agent or registrar for the Securities, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities and (ix)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange. It is understood, however, that, except as
provided in this Section and Section 6 hereof, each Underwriter will pay all of
its own costs and expenses, including the fees of its counsel, stock or other
transfer taxes on resale of any of the Securities by it, and any advertising
expenses connected with any offers of the Securities such Underwriter may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any subsidiary of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. No stop order suspending
the effectiveness of the Registration Statement shall have been issued and shall
continue to be in effect under the 1933 Act or proceedings therefore initiated
or threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the 1933 Act Regulations.
(b) Opinions of Counsel for the Company. At Closing Time, the
Representatives shall have received the opinion and letter, dated as of Closing
Time, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion and letter for each of the other Underwriters,
to the effect set forth in Exhibit A hereto.
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, the Representatives shall have received the opinion, dated as of Closing
Time, of Xxxxxxx, LLP, special Maryland counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
11
(d) Opinion of Counsel for the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to certain legal matters relating to this Agreement
and such other related matters as the Underwriters may request. In giving such
opinion such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the Chairman or President and the Executive Vice President -
Finance and Administration, Chief Financial Officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and shall be in effect and no proceedings for that
purpose have been instituted or, to the best of such officers' knowledge, are
pending or are contemplated by the Commission.
(f) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(h) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least Baa3 by Moody's Investor's Service and BBB- by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc.; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's other securities by any "nationally
recognized statistical rating agency," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other securities.
12
(i) Approval of Listing. At Closing Time, either (i) the Securities
shall have been approved for listing on the New York Stock Exchange, or (ii) if
trading on the New York Stock Exchange is to be delayed, the Company shall have
filed an application for listing of the Securities on the New York Stock
Exchange.
(j) Reserved.
(k) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company and the Operating
Partnership each agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the reasonable fees and disbursements of
counsel chosen by
13
Citigroup), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
then amended or supplemented (excluding documents incorporated by reference) in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the Prospectus, any such
amendment or supplement thereto or any such other document was corrected in the
Prospectus or the Prospectus as then amended or supplemented if the Company has
furnished prior to such confirmation sufficient copies thereof to such
Underwriter.
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers. Each Underwriter severally agrees to indemnify and hold
harmless the Company, the Operating Partnership, their respective trustees or
partners, each of the officers who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment thereto) in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by such Underwriter through the Representatives expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Citigroup, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however,
14
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into, (iii) such
indemnifying party, if it has not theretofore paid such reimbursement, is
requested again to pay reimbursement at least five, but not more than ten, days
prior to such settlement being entered into, and (iv) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus Supplement, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
15
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee or partner, as the case may be, of the Company or the Operating
Partnership, each officer who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or the Operating Partnership, as
the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters or any controlling person of an Underwriter, or by or on behalf of
the Company or the Operating Partnership or any officer or trustee or partner or
controlling person of the Company or the Operating Partnership, and shall
survive delivery of the Securities to the Underwriters.
16
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in or affecting the condition, financial or otherwise,
or the earnings or business affairs of the Company and its subsidiaries taken as
a whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to commence or continue the
offering of the Securities to the public or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of such exchanges or by order of the Commission or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities or (v) there shall have been any
downgrading in the rating assigned to the Securities or any of the Company's
other securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential downgrading in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
------------------------------------------
(a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that they has so
arranged for the purchase of such Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone the Closing Time
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as
17
used in the Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this
Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives or
the Company, or both, as provided in subsection (a) above, the number of
Securities which remains unpurchased does not exceed one-tenth of the number of
the Securities to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the full amount of
Securities which such Underwriter agreed to purchase under this Agreement and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter agreed to
purchase under this Agreement) of the Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives or
the Company, or both, as provided in subsection (a) above, the number of
Securities which remains unpurchased exceeds one-tenth of the number of the
Securities to be purchased on such date, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the party of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters provided in Section 4 hereof and the
indemnity and contribution agreements in Sections 6 and 7 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the General Counsel of Citigroup Global
Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and notices to the
Company and the Operating Partnership shall be directed to it at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the Executive Vice President -
Finance and Administration, Chief Financial Officer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Operating Partnership and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company, the Operating Partnership and their
respective successors and the controlling persons and officers, trustees and
partners referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Operating Partnership
and their respective successors, and said controlling persons and officers,
trustees and partners and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
18
SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
VORNADO REALTY TRUST
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
CONFIRMED AND ACCEPTED,
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
SCHEDULE A
Name of Underwriters Number of Securities
-------------------- --------------------
Citigroup Global Markets Inc. 3,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 3,000,000
TOTAL 6,000,000
Sch A-1
SCHEDULE B
VORNADO REALTY TRUST
6.75% SERIES F CUMULATIVE REDEEMABLE PREFERRED SHARES OF BENEFICIAL INTEREST
TITLE OF DESIGNATED SHARES:
6.75% Series F Cumulative Redeemable Preferred Shares of Beneficial
Interest
NUMBER OF DESIGNATED SHARES:
6,000,000
PUBLIC OFFERING PRICE:
$25.00 per Share, plus accrued dividends from the Closing Time, if
settlement occurs after that date.
PURCHASE PRICE BY UNDERWRITERS:
$24.2125 per Share, plus accrued dividends from the Closing Time, if
settlement occurs after that date.
UNDERWRITING DISCOUNT:
$0.7875 per Share
FORM OF DESIGNATED SHARES:
Book-Entry Only through DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds.
TIME OF DELIVERY:
10:00 a.m. (New York City time), November 17, 2004
CLOSING LOCATION:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
NAME AND ADDRESS OF DESIGNATED REPRESENTATIVES:
Designated Representatives: Citigroup Global Markets Inc.
Address for Notices, etc.: General Counsel
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Sch B-1
DIVIDENDS:
Cumulative at the annual rate of 6.75% per share on the liquidation
preference of the Series F Preferred Shares payable quarterly in
arrears on the first calendar day of January, April, July and October
of each year, commencing April 1, 2005.
LIQUIDATION PREFERENCE:
$25.00 per share, plus an amount equal to accrued and unpaid dividends
(whether or not earned or declared).
RANKING:
The Series F Preferred Shares will rank senior to the Company's common
shares of beneficial interest and any other junior stock that the
Company may issue in the future and equal to the Company's Series A
Convertible Preferred Shares, Series B Preferred Shares, Series C
Preferred Shares, Series D Preferred Shares, Series E Preferred Shares
and any other parity stock that the Company may issue in the future, in
each case with respect to payment of dividends and amounts upon
liquidation, dissolution or winding up. The Company will acquire Series
F Pass-Through Preferred Units of the Operating Partnership (with terms
mirroring the terms of the Series F Preferred Shares) in exchange for
the cash proceeds from the sale of the Series F Preferred Shares.
Series F Pass-Through Preferred Units will rank senior to all classes
of Operating Partnership units and on a parity with certain other units
in the Operating Partnership, with respect to payment of dividends and
amounts upon liquidation, dissolution or winding up of the Operating
Partnership.
CONVERSION RIGHTS:
The Series F Preferred Shares are not convertible or exchangeable for
any property or other securities of the Company.
REDEMPTION AT OPTION OF THE COMPANY:
Except in certain circumstances relating to the preservation of the
Company's status as a REIT, the Series F Preferred Shares are not
redeemable prior to November 17, 2009. On and after November 17, 2009,
the Series F Preferred Shares will be redeemable by the Company at a
redemption price of $25.00 per share, plus any accrued and unpaid
dividends through the date of redemption. The Series F Preferred Shares
have no maturity date and will remain outstanding indefinitely unless
redeemed.
VOTING RIGHTS:
Holders of the Series F Preferred Shares generally will have no voting
rights. However, if dividends on the Series F Preferred Shares are in
arrears for six quarterly dividend periods, the holders of the Series F
Preferred Shares (voting separately as a class with holders of all
other series of parity preferred stock upon which like voting rights
have been conferred and are exercisable) will have the right to elect
two additional trustees to serve on the Company's Board of Trustees
until such dividend arrearage is eliminated. In addition, the approval
of two-thirds of the outstanding Series F Preferred Shares (voting
separately as a class with holders of all other series of parity
preferred stock upon which like voting rights have been conferred and
are exercisable) is required in order to amend the Company's Amended
and Restated Declaration of Trust and Articles Supplementary
B-2
to affect materially and adversely the rights, preferences or voting powers
of the holders of the Series F Preferred Shares or such parity shares or to
authorize, create, or increase the authorized amount of, any class of stock
having rights senior to the Series F Preferred Shares with respect to the
payment of dividends or amounts upon liquidation, dissolution or winding
up.
LISTING:
New York Stock Exchange: "VNO Pr F"
CUSIP:
TBD
B-3
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a real estate investment trust duly formed and
existing under the laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus under the heading "Vornado and the Operating Partnership" and to
enter into and perform its obligations under this Agreement;
(iii) The Operating Partnership is a limited partnership existing under
the laws of the State of Delaware and has the partnership power and
authority to own, lease and operate its properties and conduct its business
substantially as described in the Prospectus;
(iv) The Securities have been duly authorized and validly issued and
are fully paid and nonassessable;
(v) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership;
(vi) The Registration Statement has been declared effective under the
1933 Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending
under the 1933 Act;
(vii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of
the United States and the laws of the State of New York for the issuance,
sale and delivery of the Securities by the Company to the Underwriters have
been obtained or made; provided, however, that for purposes of this
paragraph (vii), such counsel need not express any opinion with respect to
state securities laws that may be applicable to the issuance, sale or
delivery of the Securities;
(viii) The execution and delivery by the Company and the Operating
Partnership of this Agreement, the issuance of the Securities and the sale
of the Securities by the Company to the Underwriters pursuant to this
Agreement do not, and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions herein
contemplated will not (A) violate the Company's Amended and Restated
Declaration of Trust or Bylaws or the certificate of limited partnership of
the Operating Partnership, (B) violate any court order or administrative
decree known to such counsel or any Federal law of the United States or law
of the State of New York applicable to the Company or the Operating
Partnership, or (C) result in a default under
A-1
or breach of any agreement filed as an exhibit to the Company's most recent
Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q
or Current Report on Form 8-K under Item 601 (b)(10) of Regulation S-K,
subject, in the case of clauses (A), (B) and (C) of this paragraph (viii),
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; provided, however, that
for purposes of this paragraph (viii), such counsel need not express any
opinion with respect to Federal or state securities laws, other antifraud
laws or fraudulent transfer laws or the Employee Retirement Income Security
Act of 1974 and Related laws;
(ix) Such counsel shall confirm (i) the opinion that, commencing with
its taxable year ending December 31, 1993, the Company has been organized
in conformity with the requirements for qualification as a REIT under the
Code, and its proposed method of operation will enable it to satisfy the
requirements for qualification and taxation as a REIT and (ii) that the
discussion set forth under the caption "Federal Income Tax Considerations"
in the Prospectus dated August 28, 2003, as supplemented by the discussion
under the caption "Federal Income Tax Considerations" in the Prospectus
Supplement dated November 10, 2004, to the extent it describes matters of
law or legal conclusions, is correct in all material respects; in providing
such opinion, such counsel may rely (i) upon the statements and
representations contained in certificates provided by the Company and Two
Penn Plaza REIT, Inc., (ii) without independent investigation, upon
statements and representations contained in a certificate provided by
Alexander's, Inc., (iii) without investigation, upon an opinion of Shearman
& Sterling concerning the qualification of Alexander's as a REIT for
federal income tax purposes and (iv) upon any other certificates or
opinions of counsel as deemed necessary or appropriate in rendering such
opinion and subject to an analysis of the Code, Treasury Regulations
thereunder, judicial authority and current administrative rulings and such
other laws and facts as deemed relevant and necessary; and
(x) Neither the Company nor the Operating Partnership is an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
In giving this opinion, Xxxxxxxx & Xxxxxxxx LLP may state that such
opinion is limited to the Federal laws of the United States of America, the
laws of the State of New York, the laws of the State of Maryland and the
Revised Uniform Limited Partnership Act of the State of Delaware, such
counsel may rely as to matters of Maryland law on the opinion of Xxxxxxx,
LLP and such counsel express no opinion as to the effect of the laws of any
other jurisdiction; and such counsel may rely as to certain matters, upon
information obtained from public officials, officers of the Company and its
subsidiaries and other sources believed by them to be responsible. Such
counsel may assume that the certificates for the Securities conform to the
specimen thereof examined by them and have been authenticated, that this
Agreement has been duly authorized, executed and delivered by the
Underwriter and that the signatures on all documents examined by them are
genuine, assumptions which such counsel need not independently verify.
A-2
FORM OF LETTER OF COMPANY'S COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) On the basis of the information that was gained in the course of
the performance of the services referred to in their letter considered in
the light of their understanding of the applicable law (including the
requirements of Form S-3 and the character of the prospectus contemplated
thereby) and the experience they have gained through their practice under
the 1933 Act, such counsel are of the opinion that each part of the
Registration Statement, when such part became effective, and the
Prospectus, as supplemented by the Prospectus Supplement, as of the date of
the Prospectus Supplement, appeared on their face to be appropriately
responsive, in all material respects relevant to the offering of the
Securities, to the requirements of the 1933 Act and the 1933 Act
Regulations; and that nothing that came to their attention in the course of
their review has caused them to believe that, insofar as relevant to the
offering of the Securities, any part of the Registration Statement, when
such part became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as supplemented by the Prospectus Supplement, as of the date of
the Prospectus Supplement, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; also, nothing that has come to such counsel's
attention in the course of certain procedures (as described in such
opinion) has caused such counsel to believe that the Prospectus, as
supplemented by the Prospectus Supplement, as of the date and time of
delivery of such letter, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that such opinion may state that
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process
are such that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except
for those made under the caption "Description of Shares of Beneficial
Interest of Vornado Realty Trust" in the Prospectus and "Description of the
Series F Preferred Shares" in the Prospectus Supplement insofar as they
relate to the provisions of documents therein described, and that such
counsel need not express any opinion or belief as to the financial
statements or schedules or other financial data derived from accounting
records contained in the Registration Statement or the Prospectus.
(ii) Such counsel does not know of any litigation or governmental
proceedings instituted or threatened against the Company or any of its
consolidated subsidiaries that would be required to be disclosed in the
Prospectus and is not so disclosed; and such counsel does not know of any
documents that are required to be filed as exhibits to the Registration
Statement and are not so filed or of any documents that are required to be
summarized in the Prospectus that are not so summarized.
A-3
Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company is a real estate investment trust duly formed and
existing under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation of
Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus under the heading "Vornado and the Operating Partnership" and to
enter into and perform its obligations under this Agreement;
(iii) As of the date of this opinion, the Amended and Restated
Declaration of Trust of the Company authorized the issuance of up to
540,000,000 shares, consisting of (A) 200,000,000 Common Shares, of which
127,217,439 Common Shares were issued and outstanding (excluding Common
Shares issuable upon the exercise of outstanding options, the redemption of
outstanding units of the Operating Partnership and the conversion of
outstanding $3.25 Series A Convertible Preferred Shares of Beneficial
Interest), (B) 70,000,000 preferred shares of beneficial interest, no par
value per share, of which 9,524,704 were issued and outstanding, and (C)
270,000,000 excess shares of beneficial interest, par value $0.04 per
share, of which none were issued and outstanding; and all of the issued and
outstanding shares of beneficial interest of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; and
none of the outstanding shares of beneficial interest of the Company was
issued in violation of any preemptive rights of any shareholder of the
Company arising under Title 8 of the Corporations and Associations Article
of the Annotated Code of Maryland ("Title 8") or the Declaration of Trust
or Bylaws of the Company;
(iv) The issuance and sale of the Securities to the Underwriters
pursuant to this Agreement have been duly authorized, and, when issued and
delivered by the Company against payment therefor pursuant to this
Agreement and the resolutions of the Board of Trustees and the duly
authorized committee thereof authorizing their issuance, the Securities
will be validly issued, fully paid and nonassessable;
(v) The statements under the heading "Description of Shares of
Beneficial Interest of Vornado Realty Trust" in the Prospectus and
"Description of the Series F Preferred Shares" in the Prospectus
Supplement, to the extent that such statements purport to summarize or
describe matters of Maryland law, summaries of legal matters, documents or
proceedings or legal conclusions, have been reviewed by such counsel and is
correct in all material respects;
B-1
(vi) The Securities conform in all material respects as to matters of
Maryland law to the description thereof contained under the caption
"Description of Shares of Beneficial Interest of Vornado Realty Trust" in
the Prospectus and "Description of the Series F Preferred Shares" in the
Prospectus Supplement and the form of certificate evidencing the Securities
is in due and proper form in accordance with Title 8;
(vii) The issuance of the Securities is not subject to any preemptive
or similar rights arising under Title 8, the Declaration of Trust or the
Bylaws of the Company;
(viii) No authorization, approval, consent or order of any court or
governmental authority or agency of the State of Maryland is required in
connection with the offering, issuance or sale of the Securities to the
Underwriter, except such as may be required under the securities laws or
regulations of any state or other jurisdiction, including the State of
Maryland;
(ix) This Agreement has been duly authorized by all necessary trust
action of the Company, executed and, so far as is known to us, delivered by
the Company on its own behalf and in its capacity as General Partner of the
Operating Partnership;
(x) The execution and filing of Articles Supplementary relating to the
Securities (the "Articles Supplementary") have been duly authorized by the
Company and the Articles Supplementary have been executed in accordance
with Title 8 and have been filed with the SDAT; and
(xi) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and the compliance by
the Company with its obligations hereunder do not result in any violation
of (A) the provisions of the Amended and Restated Declaration of Trust or
Bylaws of the Company or (B) any applicable Maryland law or administrative
regulation or, to the best knowledge of such counsel, administrative or
court decree of the State of Maryland, except with respect to clause (B),
such violations as would not have a material adverse effect on the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries.
In giving these opinions, Xxxxxxx, LLP may state that such opinions are
limited to the laws of the State of Maryland and may rely (1) as to all
matters of fact, upon certificates and written statements of officers and
employees of and accountants for the Company and (2) as to the
qualification and good standing of the Company or any of its subsidiaries
in any other jurisdiction, upon opinions of counsel in such other
jurisdictions and certificates of appropriate government officials.
B-2
