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EXHIBIT 1.1
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
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December 18, 1996
To the Underwriters
to be named in the applicable
Terms Agreement
supplemental hereto
Dear Sirs and Madams:
Vornado Realty Trust, a Maryland real estate investment trust
(the "Company"), proposes to issue and sell shares of its common shares of
beneficial interest, par value $.04 per share (the "Common Shares"), in one or
more offerings on the terms and conditions determined at the time of sale.
Whenever the Company determines to make an offering of Common Shares (the
"Offered Securities"), it will enter into an agreement substantially in the
form of Exhibit A hereto (the "Terms Agreement") providing for the sale of such
Offered Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you," which
terms shall include the underwriter or underwriters named therein whether
acting alone in the sale of Offered Securities or as members of an underwriting
syndicate). The Terms Agreement relating to each offering of Offered
Securities shall specify, among other things, the number of Common Shares to be
issued (the "Firm Offered Securities"), and whether or not the Company has
granted to the Underwriters an option to purchase additional Shares as provided
in Section 2(b) hereof (the "Additional Offered Securities" and together with
the Firm Offered Securities, the "Offered Securities"), and if granted, the
maximum number of Additional Offered Securities that the Underwriters have an
option to purchase. In addition, the Terms Agreement shall specify the name or
names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the number of Firm Offered
Securities and Additional Offered Securities, if any, which each of the
Underwriters severally agrees to purchase, the name or names of the
Underwriters acting as manager or co-managers in connection with such
offerings, if any (the "Representatives," which term shall include each
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Underwriter in the event that there shall be no manager or co-managers), the
price per share at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price and the date,
time and place of delivery and payment for such Offered Securities.
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 Common 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. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered 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 pursuant to Rule 424 under the
1933 Act. Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as 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, are herein referred to as 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 herein referred to as 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,
the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
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.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each
Underwriter as follows:
(i) At the time the Registration Statement
(or the most recent post-effective amendment thereto, if any) became
effective, the Registration Statement complied in all material
respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder (the "1933 Act Regulations"),
and did 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; on the date hereof and at
the Closing Time (as defined below), the Prospectus, and any
amendments and supplements thereto, comply and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations, and none of such documents includes or will include
an untrue statement of a material fact or omits or will omit to state
any material fact required to be stated therein or necessary to make
the statements
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therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties
in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives, expressly for use in the
Registration Statement or Prospectus.
(ii) The accountants who certified the
financial statements and financial statement schedules included or
incorporated by reference in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) The financial statements and the
financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as
at the dates indicated, the results of their operations for the
periods specified and the information required to be stated therein;
and said financial statements and financial statement schedules have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. The selected financial data included or incorporated by
reference in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
consolidated financial statements included or incorporated by
reference in the Registration Statement. Any pro forma financial
statements and other pro forma financial information included in the
Registration Statement and the Prospectus comply in all material
respects with the applicable requirements of Rule 11-02 of Regulation
S-X of the Commission and present fairly the information shown
therein; the pro forma adjustments, if any, have been properly applied
to the historical amounts in the compilation of such statements, and
in the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(iv) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated or contemplated therein, (A) there has been
no material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are
material with respect to the
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Company and its subsidiaries considered as one enterprise, and (C)
except (i) regular quarterly dividends declared, paid or made on the
Company's common shares of beneficial interest, (ii) dividends
declared, paid or made in accordance with the terms of any series of
preferred shares of beneficial interest of the Company and (iii) as
disclosed in the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its shares of beneficial interest.
(v) The Company has been duly organized
and is validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland with power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Terms Agreement; and the
Company is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise.
(vi) Each subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each such subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except for
security interests granted in respect of indebtedness of the Company
or any of its subsidiaries as referred to in the Prospectus.
(vii) The authorized, issued and outstanding
shares of beneficial interest of the Company are as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement or
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pursuant to the terms of reservations, agreements or employee benefit
plans, including, without limitation, the Vornado Realty Trust Omnibus
Share Plan, dividend reinvestment plans and employee or director stock
option plans, or the exercise of options outstanding on the date
hereof or on the date of the applicable Terms Agreement, and in each
case referred to in the Prospectus); the issued and outstanding shares
of beneficial interest of the Company have been duly authorized and
validly issued and are fully paid and nonassessable; and the Common
Shares conform to all statements relating thereto in the Prospectus.
(viii) Neither the Company nor any of its
subsidiaries is (x) in violation of its charter documents or by-laws
or (y) in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which either the Company or any of its subsidiaries is a
party or by which any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, which default would have a material adverse effect on the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the issue and sale of
the Offered Securities, the execution, delivery and performance of
this Agreement and the applicable Terms Agreement and the consummation
of the transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder have been
duly authorized by all necessary trust action and, except as would not
have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound or affected, or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Amended
and Restated Declaration of Trust or Bylaws of the Company or any
applicable law, administrative regulation or administrative or court
decree.
(ix) Other than as set forth in the
Prospectus, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending
(in which service of process has been received by an employee of the
Company), or, to the knowledge of the Company,
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threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which is reasonably
likely to have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, or
which is reasonably likely to have a material adverse effect on the
properties or assets thereof or the consummation of the transactions
contemplated by this Agreement or the applicable Terms Agreement; all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their properties or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, are considered in the aggregate not material; 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 by the 1933 Act Regulations which have
not been so filed.
(x) No authorization, approval or consent
of any court or governmental authority or agency is necessary in
connection with the offering, issuance or sale of the Offered
Securities hereunder, except such as may be required under the 1933
Act, the 1933 Act Regulations or state securities laws.
(xi) The Company and its subsidiaries each
possess such certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where
the failure to possess such certificates, authorities or permits would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xii) This Agreement has been, and, when
signed, the applicable Terms Agreement relating to the Offered
Securities will be, duly executed and delivered by the Company.
(xiii) The documents incorporated or deemed
to be incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3 under the
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1933 Act ("Item 12") and Rule 412 of the 1933 Act Regulations ("Rule
412"), at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, do not and
will not, on the date hereof and at the Closing Time, 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, in the light of the circumstances under which they were made,
not misleading.
(xiv) Except as otherwise disclosed in the
Prospectus, and except as would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise: (i) each of the Company and its
subsidiaries has good and marketable title to all properties and
assets described in the Prospectus as owned by such party, in each
case free of all liens, encumbrances and defects; (ii) all of the
leases under which the Company or any of its subsidiaries holds or
uses real property or assets as a lessee are in full force and effect,
and neither the Company nor any of its subsidiaries is in material
default in respect of any of the terms or provisions of any of such
leases and no claim has been asserted by anyone adverse to any such
party's rights as lessee under any of such leases, or affecting or
questioning any such party's right to the continued possession or use
of the leased property or assets under any such leases; (iii) all
liens, charges, encumbrances, claims, or restrictions on or affecting
the properties and assets of the Company or any of its subsidiaries
that are required to be disclosed in the Prospectus are disclosed
therein; (iv) neither the Company, any of its subsidiaries nor, to the
knowledge of the Company, any lessee of any portion of any such
party's properties is in default under any of the leases pursuant to
which the Company or any of its subsidiaries leases its properties and
neither the Company nor any of its subsidiaries knows of any event
which, but for the passage of time or the giving of 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.
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(xv) Each of the Company and its
subsidiaries has title insurance on all properties and assets
described in the Prospectus as owned by such party in an amount at
least equal to the cost of acquisition of such property or assets,
except where the failure to maintain such title insurance would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xvi) The mortgage and deeds of trust
encumbering the properties and assets described in the Prospectus are
not convertible and such mortgages and deeds of trust are not
cross-defaulted or cross-collateralized to any property not owned by
the Company or any of its subsidiaries.
(xvii) Except as specifically disclosed in
the Prospectus, or as is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise:
(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 relating to damage to property or injury to
persons ("Environmental Laws"). Each of the Company and its
subsidiaries currently holds all governmental authorizations required
under Environmental Laws in order to conduct their businesses as
described in the Prospectus, and none of the above has any basis to
believe that any such governmental authorization may be modified,
suspended or revoked, or cannot be renewed in the ordinary course of
business;
(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
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 fully disclosed to the Underwriters and their counsel all
studies, reports, assessments, audits and other information in their
possession or control relating to any
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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.
(xviii) The Company has not taken and will not
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Shares.
(xix) The Company has complied and will
comply with all of the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida statutes, and all regulations
promulgated thereunder relating to issuers doing business with Cuba.
(xx) Neither the Company nor any of its
subsidiaries is subject to registration as an "investment company"
under the Investment Company Act of 1940.
(b) Any certificate signed by any officer of the
Company on behalf of the Company and delivered to the Representatives or to
counsel for the Underwriters in connection with the offering of the Offered
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Underwriting and Sale.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth (except as may otherwise be specified in the Terms Agreement), 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 purchase price set forth in the applicable Terms Agreement, the number of
Firm Offered Securities set forth opposite the name of such Underwriter in
Schedule I to the applicable Terms Agreement, plus any additional number of
Firm Offered Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) In addition, the Company may specify in the
Terms Agreement applicable to the Offered Securities that the Company thereby
grants an option to the Underwriters, severally and not jointly, to purchase up
to the number of Additional Offered Securities set forth in such Terms
Agreement. The option thereby granted shall expire at such time as is set
forth in the applicable Terms Agreement, and may be exercised in whole or in
part
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from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and sale of the Firm Offered Securities
upon notice by the Representatives to the Company setting forth the number of
Additional Offered Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Additional Offered Securities. Any such time and date of delivery (each such
date and time being herein called the "Option Closing Time") shall be
determined by the Representatives, but shall not be later than five full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined, unless otherwise agreed by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Additional Offered Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Additional Offered Securities then being purchased which the number of Firm
Offered Securities set forth in Schedule I to the Terms Agreement opposite the
name of such Underwriter bears to the total number of Firm Offered Securities
(except as otherwise provided in the Terms Agreement), subject in each case to
such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery
of certificates for, the Firm Offered Securities shall be made at the date,
time and location specified in the applicable Terms Agreement relating to the
Offered Securities, or at such other date, time or location as shall be agreed
upon by the Representatives and the Company or as shall otherwise be provided
in Section 10 (each such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Additional Offered Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates for, the Additional Offered
Securities shall be made at the date, time and location as shall be agreed upon
by the Representatives and the Company. Unless otherwise specified in the
applicable Terms Agreement relating to the Offered Securities, payment shall be
made to the Company by certified or official bank check or checks in New York
Clearing House funds or similar next day funds payable to the order of the
Company, against delivery to the Representatives for the respective accounts of
the Underwriters of the Firm Offered Securities and any Additional Offered
Securities to be purchased by them. Certificates for the Firm Offered
Securities and the Additional Offered Securities, if any, shall be in such
denominations and registered in such names as the Representatives may request
in writing at least two business days before the Closing Time or the Option
Closing Time, as the case may be. The certificates for such Offered Securities
will be made available for examination and packaging by the Representatives not
later than 10:00 A.M. on the last business day prior to the Closing Time or the
Option Closing Time, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
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(a) If requested by the Representatives in
connection with the offering of the Offered Securities, the Company will
prepare a preliminary prospectus supplement containing such information as the
Representatives and the Company deem appropriate, and, following the execution
of this Agreement, the Company will prepare a Prospectus Supplement that
complies with the 1933 Act and the 1933 Act Regulations and that sets forth the
number of the Offered Securities and their terms, the name of each Underwriter
participating in the offering and the number of the Offered Securities that
each severally has agreed to purchase, the name of each Underwriter, if any,
acting as representative of the Underwriters in connection with the offering,
the price at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, any selling
concession and reallowance, and such other information as the Representatives
deem appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters as many copies of any preliminary prospectus supplement and
the Prospectus as the Representatives shall reasonably request.
(b) If at any time when the Prospectus is required
by the 1933 Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an 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, in the
opinion of either such counsel, 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 untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters as many copies of such amendment or
supplement as they shall reasonably request.
(c) During the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Offered Securities, the Company will inform the Representatives of its
intention to file any amendment to the Registration Statement, any supplement
to the Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus; will furnish the Representatives
with copies of any such amendment, supplement or other document a reasonable
time in advance of filing; and will not file any such amendment, supplement or
other document in a form to which the Representatives or counsel for the
Underwriters shall reasonably object.
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(d) During the period when the Prospectus is
required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Offered Securities, the Company will notify the Representatives
immediately, and confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the Commission
for filing of any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus, (iii) the
receipt of any comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the
Commission for any amendment to the Registration Statement or any supplement to
the Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus and (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or the institution or
threatening of any proceeding for any of such purposes. The Company will use
every reasonable effort to prevent the issuance of any such stop order or of
any order suspending such qualification and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment.
(e) The Company has furnished or will furnish to the
Representatives as many signed copies of the Registration Statement (as
originally filed) and of all amendments thereto, whether filed before or after
the Registration Statement became effective, copies of all exhibits and
documents filed therewith or incorporated by reference therein (through the end
of the period when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Offered Securities) and signed
copies of all consents and certificates of experts, as the Representatives may
reasonably request, and has furnished or will furnish to the Representatives,
upon request, for each of the Underwriters, one conformed copy of the
Registration Statement (as originally filed) and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(f) The Company will furnish to each Underwriter,
from time to time during the period when the 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 for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(g) The Company will endeavor, in cooperation with
the Underwriters, to qualify the Offered Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in which
the Offered Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be
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required for the distribution of the Offered Securities, provided that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction where it is not so qualified.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earning statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering (i) a
period of 12 months beginning after the effective date of the Registration
Statement and covering a period of 12 months beginning after the effective date
of any post-effective amendment to the Registration Statement but not later
than the first day of the Company's fiscal quarter next following such
respective effective dates and (ii) a period of 12 months beginning after the
date of the applicable Terms Agreement but not later than the first day of the
Company's fiscal quarter next following the date of the applicable Terms
Agreement.
(i) For a period of five years after the Closing
Time, the Company will furnish to the Representatives and, upon request, to
each Underwriter, copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its
shareholders or security holders generally.
(j) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
(k) If and to the extent specified in the applicable
Terms Agreement, the Company will use its best efforts to effect the listing of
the Offered Securities on the New York Stock Exchange or other securities
market and registration under the 1934 Act.
(l) During any period specified in the applicable
Terms Agreement for such Offered Securities, the Company will not, without the
prior written consent of the Representatives, directly or indirectly, sell,
offer to sell, grant any option for the sale of, contract to sell or otherwise
transfer or dispose of, or announce its intent to take any such action, any
Common Shares or any security convertible or exchangeable for Common Shares,
except for Common Shares issued pursuant to agreements or plans or the exercise
of options referred to in Section 1(a)(vii) hereof.
SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement
and the applicable Terms Agreement relating to the Offered Securities,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus
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supplement and Prospectus and any amendments or supplements thereto, (ii) the
preparation and printing of this Agreement and the Terms Agreement, (iii) the
cost of preparing, issuing and delivering certificates representing the Common
Shares, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Offered Securities under state
securities laws, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation and printing of the Blue Sky Survey and any Legal Investment Survey
and delivery to the Underwriters of copies of the Blue Sky Survey and any Legal
Investment Survey, (vi) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus supplement, and of the Prospectus and
any amendments or supplements thereto, (vii) any fees of the National
Association of Securities Dealers, Inc., (viii) the cost and charges of any
transfer agent or registrar; and (ix) the fees and expenses, if any, incurred
in connection with the listing of the Offered Securities on the New York Stock
Exchange or other securities market, if applicable, and the registration of the
Offered Securities with the Commission, if applicable.
If the applicable Terms Agreement relating to the Offered
Securities (which includes the terms of this Agreement as incorporated by
reference therein) 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 of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. Except
as otherwise provided in the applicable Terms Agreement, the obligations of the
Underwriters to purchase and pay for any Offered Securities are subject to the
accuracy of the representations and warranties of the Company contained herein
or in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company, shall be
contemplated by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the satisfaction of
counsel for the Underwriters.
(b) At the applicable Closing Time, the
Representatives shall have received:
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(1) The opinion, dated as of the Closing Time, of
Xxxxxxxx & Xxxxxxxx, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company is a real estate
investment trust duly organized and existing under the laws of the
State of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland.
(ii) To the best of such counsel's
knowledge, the Company is not required to qualify to do business in
the State of New York.
(iii) The Company has the power and
authority to own, lease and operate its properties and to conduct its
business substantially as described in the Prospectus and the Company
has the power and authority to enter into and perform its obligations
under this Agreement and the Terms Agreement relating to the Offered
Securities.
(iv) The issuance and sale of the Offered
Securities to the Underwriters pursuant to this Agreement and the
applicable Terms Agreement have been duly authorized and, when issued
and delivered by the Company pursuant to this Agreement against
payment pursuant to this Agreement and the Terms Agreement, the
Offered Securities will be validly issued, fully paid and
nonassessable.
(v) This Agreement and the applicable
Terms Agreement have been duly authorized, executed and delivered by
the Company.
(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) Such counsel does not know of any
litigation instituted or threatened against the Company or any of its
subsidiaries that would be required to be disclosed in the Prospectus
and is not so disclosed.
(viii) 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 and are not so
summarized.
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(ix) 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 Offered Securities by the Company to the Underwriters have been
obtained or made; provided, however, that for purposes of this
paragraph (ix), such counsel need not express any opinion with respect
to state securities laws.
(x) The execution and delivery by the
Company of this Agreement and the applicable Terms Agreement do not,
and the issuance of the Offered Securities and the sale of the Offered
Securities by the Company to the Underwriters pursuant to this
Agreement and the applicable Terms Agreement and the performance by
the Company of its obligations under this Agreement and the applicable
Terms Agreement will not (A) violate the Company's Amended and
Restated Declaration of Trust or Bylaws or the certificate or articles
of incorporation or by-laws of any of its subsidiaries, (B) violate
any court order or administrative decree known to such counsel or any
federal law of the United States or law of the State of New York
applicable to the Company, or (C) result in a default under or breach
of any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel to which the Company
or any subsidiary is a party or by which any of them may be bound, or
to which any of their property is subject, subject, in the case of
clauses (A), (B) and (C) of this paragraph (x), 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 (x), such counsel need not express
any opinion with respect to federal or state securities laws, other
antifraud laws or fraudulent transfer laws.
(xi) Neither the Company nor any of its
subsidiaries is an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(xii) The information in the Prospectus
under the heading "Certain Federal Income Tax Considerations," to the
extent that it constitutes matters of law or legal conclusions, has
been reviewed by such counsel and is correct in all material respects;
provided that such opinion may be rendered in reliance upon
representations made by third parties and, as to the qualification of
Alexander's, Inc. as a real estate investment trust for federal income
tax purposes, an opinion of Shearman & Sterling.
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(xiii) On the basis of the information which
was reviewed in the course of the performance of the services referred
to in their opinion considered in the light of their understanding of
the applicable law (including the requirements of Form S-3 and the
character of the prospectus contemplated thereby) and the experience
they have gained through their practice under the 1933 Act, such
counsel are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of the date of the Prospectus,
appeared on their face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the 1933 Act
Regulations; and that nothing which has come to their attention in the
course of their review has caused them to believe that the
Registration Statement, as of its effective date (other than the
financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus,
as of its date (other than the financial statements and schedules and
other financial and statistical data contained therein, as to which
such counsel need express no opinion), contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; also,
nothing that has come to such counsel's attention in the course of
certain procedures (as described in such opinion) has caused such
counsel to believe that the Prospectus, as of the date and time of
delivery of such opinion (other than the financial statements and
schedules and other financial and statistical data contained therein,
as to which such counsel need express no opinion), contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that such opinion may state that the limitations
inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are
such that such counsel do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except as otherwise
specifically referred to in paragraph (xii) above and except for those
made under the caption "Description of Common Shares" in the
Prospectus insofar as they relate to the provisions of documents
therein described, and that such counsel need not express any opinion
or belief as to the financial statements and schedules or other
financial and statistical data contained in the Registration Statement
or the Prospectus.
In giving these opinions, Xxxxxxxx & Xxxxxxxx may state that
they are admitted to the Bar of the State of New York and do not express any
opinion as to the laws of any other
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jurisdiction other than the federal laws of the United States of America and
may rely (1) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for the Company and (2)
as to the qualification and good standing of the Company or any of its
subsidiaries, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
(2) The opinion, dated as of the Closing Time, of
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, special Maryland counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company is a real estate
investment trust duly organized and existing under the laws of the
State of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland.
(ii) The Company has the power and
authority to own, lease and operate each of its properties and to
conduct each of its businesses substantially as described in the
Prospectus and the Company has the power and authority to enter into
and perform its obligations under this Agreement and the applicable
Terms Agreement.
(iii) The authorized, issued and outstanding
common shares of beneficial interest of the Company are as set forth
in the Prospectus under "Capitalization"; the issued and outstanding
common shares of beneficial interest of the Company have been duly
authorized and validly issued and are fully paid and, except as
otherwise described in the Prospectus under the caption "Description
of Common Shares," nonassessable; and none of the outstanding common
shares of beneficial interest of the Company was issued in violation
of any preemptive rights of any shareholder of the Company.
(iv) The information in the Prospectus
under the headings "Description of Common Shares" and "Description of
Preferred Shares," to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(v) The Offered Securities conform in all
material respects as to legal matters to the description thereof
contained in the Prospectus and the form of certificate used to
evidence the Common Shares is in due and proper form in accordance
with applicable statutory requirements.
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(vi) The issuance of the Offered Securities
is not subject to preemptive or other similar rights arising by
operation of law, the Amended and Restated Declaration of Trust or the
Bylaws of the Company or, to the best of such counsel's knowledge,
otherwise.
(vii) 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 Offered Securities to the Underwriters, except such as may be
required under the 1933 Act or the 1933 Act Regulations or securities
laws of any state or other jurisdiction.
(viii) The execution, delivery and
performance of this Agreement and the applicable Terms Agreement, the
consummation of the transactions contemplated herein and therein and
the compliance by the Company with its obligations hereunder and
thereunder will not result in any violation of (A) the provisions of
the Amended and Restated Declaration of Trust or Bylaws of the Company
or the charter documents or bylaws of any subsidiary of the Company
incorporated in New Jersey, Delaware, Maryland and Pennsylvania (as
appropriately identified on an exhibit to such opinion or otherwise),
or (B) any applicable law or administrative regulation or, to the best
knowledge of such counsel, administrative or court decree, except with
respect to clause (B) of this paragraph (viii), such violations as
would not have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, and subject, in the case of clauses (A) and (B) 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.
In giving these opinions, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx
may state that such opinions are limited to the laws of the States of Maryland
and New Jersey and the Commonwealth of Pennsylvania, and Delaware corporate law
and may rely (1) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for the Company and (2)
as to the qualification and good standing of the Company or any of its
subsidiaries in any other jurisdiction, upon opinions of counsel in such other
jurisdictions and certificates of appropriate government officials.
(3) The favorable opinion, dated as of the Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, with respect to the matters set forth in paragraphs (i)
and (iii)-(vi), inclusive, of subsection (b)(1) of this Section.
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In giving its opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP shall additionally state that nothing has come to their attention that
would lead them to believe that the Registration Statement (except for
financial statements and schedules and other financial and statistical data
included or incorporated by reference therein or excluded therefrom, as to
which counsel need make no statement), at the time it became effective,
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 or that the Prospectus (except for financial statements and
schedules and other financial and statistical data included or incorporated by
reference therein or omitted therefrom, as to which counsel need make no
statement), as of its date and at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving these opinions, Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP 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, upon opinions of
counsel in such jurisdictions and certificates of appropriate government
officials.
(c) At the applicable Closing Time there shall not
have been, since the date of the applicable Terms Agreement or since the date
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chief Executive
Officer of the Company and of the Chief Financial Officer of the Company, dated
as of the Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of the applicable 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 the applicable Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Offered Securities.
(d) At the date of the applicable Terms Agreement
relating to Offered Securities, the Representatives shall have received from
Deloitte & Touche LLP a letter dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, in form and substance satisfactory to the Representatives, to the effect
that (i) they are independent public accountants with
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respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the financial
statements and financial statement schedules included or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations and the 1934 Act and the 1934 Act Regulations; (iii) based
upon limited procedures set forth in detail in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited financial
statements and financial statement schedules of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations or the
1934 Act and the 1934 Act Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement, (B) the unaudited
amounts of property rentals, total revenue, income from continuing operations
before extraordinary item and income per share from continuing operations set
forth under "Selected Consolidated Financial Data" in the Prospectus were not
determined on a basis substantially consistent with that used in determining
the corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement, or (C) at a specified
date not more than five days prior to the date of the applicable Terms
Agreement relating to the Offered Securities, there has been any change in the
issued and outstanding shares of beneficial interest of the Company or any
increase in the consolidated long-term debt of the Company and its subsidiaries
or any decrease in consolidated net assets as compared with the amounts shown
in the most recent balance sheet included or incorporated by reference in the
Registration Statement or, during the period from the date of the most recent
balance sheet included or incorporated by reference in the Registration
Statement to a specified date not more than five days prior to the date of the
applicable Terms Agreement relating to the Offered Securities, there were any
decreases, as compared with the corresponding period in the preceding year, in
property rentals, total revenue, income from continuing operations before
extraordinary item, income per share from continuing operations or Funds from
Operations of the Company and its subsidiaries, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinion and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, the
Representatives shall have received from Deloitte & Touche LLP a letter, dated
as of such Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (d) of this
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Section, except that the specified date referred to shall be a date not more
than five days prior to such Closing Time.
(f) If and to the extent specified in the applicable
Terms Agreement relating to the Offered Securities, at the applicable Closing
Time, the Offered Securities shall have been approved for listing on the New
York Stock Exchange or other securities market, subject to notice of issuance.
(g) On or before the applicable Closing Time, the
Company shall have received and provided to the Representatives copies of valid
and binding agreements duly executed by the persons or entities named in the
applicable Terms Agreement, pursuant to which each such person or entity shall
agree not to, without the prior written consent of the Representatives, sell,
offer to sell, grant any option for the sale of, contract to sell or otherwise
transfer or dispose of or announce its intent to take any such action, any
Common Shares or any security convertible or exchangeable for Common Shares,
for the period specified in the applicable Terms Agreement.
(h) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents, certificates and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and related
proceedings, 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 Offered Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Additional Offered Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished
hereunder shall be true and correct as of each Option Closing Time and, at the
Option Closing Time, the Representatives shall have received the certificates
and opinions, dated the relevant Option Closing Time, referred to in this
Section 5.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by the Representatives by notice to the Company at any time
at or prior to the applicable Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof and pursuant to Sections 6 and 7 hereof.
SECTION 6. Indemnification.
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(a) The Company agrees 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 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),
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 any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
supplement 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, if 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 fees and disbursements of counsel chosen by the Representatives),
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 supplement
or the Prospectus (or any amendment or supplement thereto).
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(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 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
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
(c) 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 which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and one or more of the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount set forth in the Terms Agreement relating to the Offered
Securities bears to the public offering price of such Offered Securities and
the Company is responsible for the balance; provided, however, that 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,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
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SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties, indemnities and agreements
contained in this Agreement and any Terms Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter, the Company, or any person who controls any
Underwriter or the Company within the meaning of Section 15 of the 1933 Act,
and shall survive delivery of and payment for the Offered Securities.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable
Terms Agreement (including this Agreement as incorporated by reference
therein), by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
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 elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Offered Securities
or to enforce contracts for the sale of the Offered Securities, or (iii) if
trading in any securities of the Company has been suspended by the Commission,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange or in the over-the-counter market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said 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. As used in this
Section 9(a), the term "Prospectus" means the Prospectus in the form first used
to confirm sales of the Offered Securities.
(b) 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 pursuant to Sections 6 and 7
hereof.
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to purchase the
Firm Offered Securities that it or they are obligated to purchase under this
Agreement and the Terms Agreement (the "Defaulted Offered Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Offered
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
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(a) if the number of Defaulted Offered Securities
does not exceed 10% of the number of Firm Offered Securities to be purchased
pursuant to the Terms Agreement relating to the Offered Securities, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations under such Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Offered Securities
exceeds 10% of the number of Firm Offered Securities to be purchased pursuant
to the Terms Agreement relating to the Offered Securities, such Terms Agreement
(including this Agreement as incorporated by reference therein) shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of such Terms Agreement (including this Agreement as incorporated
by reference therein), either the Representatives or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
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 as set forth in the applicable Terms
Agreement; notices to the Company shall be directed to it at Park 00 Xxxx,
Xxxxx XX, Xxxxxx Xxxxx, XX 00000, attention of Secretary.
SECTION 12. Parties. This Agreement and each applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or the Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors 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 the Terms Agreement or any
provision herein or therein contained. This Agreement and the Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
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.
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SECTION 13. Governing Law and Time. This Agreement and each
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in said State. Except as otherwise set forth herein, specified times
of day refer to New York time.
-----------------------
Very truly yours,
VORNADO REALTY TRUST
By: /s/Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President and Chief
Financial Officer
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Exhibit A
to
Underwriting Agreement
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
TERMS AGREEMENT
---------------
_________ __, 199_
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust
(the "Company"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated ________ __, 1995 (the "Underwriting
Agreement"), to issue and sell to [___________ (the "Underwriter(s)")] [the
several Underwriters listed on Schedule I hereto, for whom ____________ is/are
acting as representative(s) (the "Representative(s)")], the Securities
specified herein (the "Offered Securities"). This agreement is the Terms
Agreement relating to the Offered Securities referred to in the Underwriting
Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Terms Agreement, except that each representation and warranty that refers to
the Prospectus in Section 1 of the Underwriting Agreement shall be deemed to be
a representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Terms
A-1
29
Agreement in relation to the Prospectus as amended or supplemented relating to
the Offered Securities which are the subject of this Terms Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The address of the
Underwriter(s) referred to in Section 11 of the Underwriting Agreement is
______________________, Attention: ______________.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the Offered Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and to sell to the Underwriter, and the Underwriter agrees to purchase
from the Company, at the time and place and at the purchase price to the
Underwriter set forth herein, the number of Offered Securities.
[The Company hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Additional Offered
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to herein for the sole purpose of covering
over-allotments in the sale of the Firm Offered Securities. Any such election
to purchase Additional Offered Securities may be exercised by notice from the
Representatives to the Company specifying the number of Additional Offered
Securities to be purchased and the date on which such Additional Offered
Securities are to be delivered.]
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with the Underwriters as follows:
1. Total number of Offered Securities to be issued:
Firm Offered Securities:
Additional Offered Securities (maximum):
2. Initial public offering price per share:
3. Underwriting price to be paid by the Underwriters:
4. Specified Funds for payment of the purchase price:
5. Closing date, time and location:
A-2
30
6. Listing:
7. Name[s] and address[es] of Representative[s]:
8. Other Requirements:
This Agreement shall be governed by the laws of the
State of New York.
9. Other:
-------------------
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts (including the provisions of the Underwriting Agreement
incorporated by reference herein) shall be a binding agreement between the
Underwriter and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
VORNADO REALTY TRUST
By:
-----------------------------------
Name:
Title:
Accepted as of the date first above written:
UNDERWRITER(S) or
REPRESENTATIVE(S),
on behalf of the several Underwriters
named in Schedule I hereto
By:
--------------------------------------
Name:
Title:
A-3
31
Schedule I
to
Terms Agreement
VORNADO REALTY TRUST
Common Shares of Beneficial Interest
[List Underwriter or Underwriters, indicating which, if any, are acting as the
Representative or Representatives of the Underwriters and number of shares
being purchased.]
