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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
8.5% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest
(Liquidation Preference $25.00 Per Share)
UNDERWRITING AGREEMENT
Dated: March 12, 1999
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Table of Contents
Underwriting Agreement.........................................................1
SECTION 1. Representations and Warranties.................................3
(a) Representations and Warranties by the Company.......3
(i) Incorporated Documents..................................3
(ii) Compliance with Registration Requirements...............3
(iii) No Material Adverse Change in Business..................4
(iv) Good Standing of the Company ...........................4
(vi) Good Standing of the Operating Partnership..............4
(vii) Good Standing of Subsidiaries...........................5
(viii) Capitalization..........................................5
(ix) Authorization and Description of Preferred Shares.......5
(x) Absence of Conflicts and Defaults.......................5
(xi) Authorization of this Underwriting Agreement............6
(xii) Absence of Proceedings..................................6
(xiii) No Violations or Defaults...............................6
(xiv) Accuracy of Certain Descriptions........................7
(xv) Investment Company Act..................................7
(xvi) Independent Public Accountants..........................7
(xviii) Title to Property.......................................7
(xix) Environmental Laws......................................8
(xx) No Stabilizing Actions..................................9
(b) Officer's Certificates..........................9
SECTION 2. Sale and Delivery to the Underwriters; Closing.................9
(a) Initial Securities..............................9
(b) Option Securities...............................9
(c) Payment........................................10
(d) Denominations; Registration....................10
SECTION 3. Covenants of the Company......................................11
(a) Delivery of Registration Statements............11
(b) Delivery of Prospectus.........................11
(c) Continued Compliance with Securities Laws......11
(d) Rule 158.......................................12
(e) Use of Proceeds................................12
(f) Listing........................................12
SECTION 4. Payment of Expenses...........................................12
(a) Expenses.......................................12
(b) Termination of Agreement.......................13
SECTION 5. Conditions of Underwriters' Obligations.......................13
(a) Effectiveness of Registration Statement........13
(b) Opinions of Counsel for the Company............13
(c) Opinion of Special Maryland Counsel for the
Company........................................13
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(d) Opinion of Counsel for the Underwriters........13
(e) Officers' Certificate..........................14
(f) Accountants' Comfort Letter....................14
(g) Bring-down Comfort Letter......................14
(i) Approval of Listing ........ ...............15
(j) Conditions to Purchase of Option Securities....15
(k) Additional Documents...........................16
(l) Termination of Agreement.......................16
SECTION 6. Indemnification...............................................16
(a) Indemnification of Underwriters................16
(b) Indemnification of Company, Operating
Partnership, Trustees, Partners and Officers...17
(c) Actions against Parties; Notification..........17
(d) Settlement without Consent if Failure to
Reimburse......................................18
SECTION 7. Contribution..................................................18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery......................................................20
SECTION 9. Termination of Agreement......................................20
(a) Termination; General...........................20
(b) Liabilities....................................20
SECTION 10. Default by One or More of the Underwriters..................21
SECTION 11. Notices.....................................................21
SECTION 12. Parties.....................................................22
SECTION 13. GOVERNING LAW AND TIME......................................22
SECTION 14. Effect of Headings..........................................22
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
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
3,000,000 Shares
8.5% Cumulative Redeemable
Preferred Shares of Beneficial Interest
(No Par Value Per Share)
Underwriting Agreement
March 12, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
as Representatives of the Several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and 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 Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx & Co. Incorporated,
PaineWebber Incorporated, Prudential Securities Incorporated and Xxxxxxx Xxxxx
Barney Inc. 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
8.5% Cumulative Redeemable Preferred Shares of Beneficial Interest, no par value
per share, of the Company ("Preferred Shares") set forth above, and with respect
to the grant by the Company to the Underwriters of the option described in
Section 2(b) hereof to purchase all or any part of 450,000 additional Preferred
Shares to cover over-allotments, if any. The aforesaid 3,000,000 Preferred
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Shares (the "Initial Securities") to be purchased by the Underwriters and all or
any part of the 450,000 Preferred Shares subject to the option described in
Section 2(b) hereof (the "Option Securities") are hereinafter called
collectively 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.
For purposes of this Agreement, unless the context requires otherwise, all
references to "subsidiaries" shall include corporations in which the Company
owns all of the outstanding non-voting stock and none of the voting stock
("Preferred Stock Affiliates").
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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(c) hereof, and as of each Date of Delivery (if
any) 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; 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 Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by 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; 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) 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
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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, business affairs or business prospects of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus.
(iv) 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 the Company is duly qualified as a foreign organization to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole;
(v) Qualification as a REIT. The Company is organized 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;
(vi) 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 condition,
financial or otherwise, or the earnings, business affairs or business
prospects of 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 nonassessable; the
Company is the sole general partner of, and owned an approximately 81.5%
limited partnership interest in, the Operating Partnership as of March 9,
1999;
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company,
other than the Operating Partnership, which is covered in paragraph (vi)
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
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conduct of business, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole; all of the issued and outstanding capital
stock of each such subsidiary (other than Preferred Stock Affiliates) 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 condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole and except as disclosed in the Prospectus;
(viii) Capitalization. The Company has an authorized capitalization
as set forth in the Prospectus under the caption" Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement or pursuant
to the terms of reservations, agreements or employee benefit plans,
including, without limitation, the Vornado Realty Trust Omnibus Share
Plan, dividend reinvestment plans and employee or director stock option
plans, or the exercise of options outstanding on the date hereof, and in
each case referred to in the Prospectus), and all of the issued and
outstanding shares of beneficial interest of the Company have been duly
and validly authorized and issued and are fully paid and nonassessable;
(ix) Authorization and Description of Preferred Shares. The
Preferred Shares have been duly authorized, and, when the Initial
Securities are issued and delivered pursuant to this Agreement and, in the
case of any Option Securities, pursuant to over-allotment options with
respect to such Preferred Shares, 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" and the Securities will
conform to the description thereof contained in the Prospectus Supplement
under the caption "Description of the Series B Preferred Shares" and such
description will conform to the rights set forth in the Articles
Supplementary designating the Securities.
(x) Absence of Conflicts and Defaults. The issue and sale of the
Preferred Shares and each over-allotment option, if any, and the
compliance by the Company with all of the provisions of this Agreement and
each over-allotment option, if any, and the consummation of the
transactions contemplated herein have been duly authorized by all
necessary trust action and, except as would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Amended and Restated Declaration of Trust, as amended, or Bylaws of
the Company or any statute or any order, rule or regulation of any court
or governmental authority, agency or body having jurisdiction over
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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 or any over-allotment option,
except such as have been, or will have been prior to the Closing Time and
each Date of Delivery (as defined in Section 2(b) hereof), 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;
(xi) 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;
(xii) 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 is the subject, which,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which
have not been so filed;
(xiii) 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 general affairs, manage ment, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole;
(xiv) Accuracy of Certain Descriptions. The statements set forth in
the Prospectus under the captions "Description of Shares of Beneficial
Interest", "Description of the Series B 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;
(xv) Investment Company Act. Neither the Company nor the Operating
Partnership is subject to registration as an "investment company" under
the Investment Company Act;
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(xvi) 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 independent public
accountants as required by the 1933 Act and the 1933 Act Regulations;
(xvii) 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 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;
(xviii) Title to Property. Except as otherwise disclosed in the
Prospectus, and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole:
(i) each of the Company and its subsidiaries has good and marketable title
to all properties and assets described in the Prospectus as owned by such
party, in each case free of all liens, encumbrances and defects; (ii) all
of the leases under which the Company or any of its subsidiaries holds or
uses real property or assets as a lessee are in full force and effect, and
neither the Company nor any of its subsidiaries is in material default in
respect of any of the terms or provisions of any of such leases and no
claim has been asserted by anyone adverse to any such party's rights as
lessee under any of such leases, or affecting or questioning any such
party's right to the continued possession or use of the leased property or
assets under any such leases; (iii) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets of the
Company or any of its subsidiaries that are required to be disclosed in
the Prospectus are disclosed therein; (iv) neither the Company, any of its
subsidiaries nor, to the knowledge of the Company, any lessee of any
portion of any such party's properties is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases its
properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of 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
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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;
(xix) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole:
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 environ ment, 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 neither the
Company nor any of its subsidiaries 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 Representatives or counsel for the Underwriters all studies,
reports, assessments, audits and other information in their
possession or control relating to any pollution or release,
threatened release or disposal of materials regulated under
Environmental Laws on, at, under, from or transported from any of
their currently or formerly owned, leased or operated properties,
including, without limitation, all information relating to
underground storage tanks and asbestos containing materials.
(xx) No Stabilizing Actions. 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
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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) Initial 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 Initial Securities
set forth in Schedule A opposite the name of such Underwriters, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 450,000 Preferred Shares at the
price per share set forth in Schedule B. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery for the Option Securities (a "Date of Delivery")
shall be determined by Xxxxxxx Xxxxx, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as Xxxxxxx Xxxxx in
its discretion shall make to eliminate any sales or purchases of fractional
sales.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 or at such other
place as shall be agreed upon by the Underwriter 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 Xxxxxxx Xxxxx and the Company (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx and the
Company, on each Date of Delivery as specified in the notice from Xxxxxxx Xxxxx
to the Company.
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, 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 or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, 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 or the relevant Date of Delivery,
as the case may be.
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 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.
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.
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The Company will furnish to each Underwriter, without charge, 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. 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. 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 statements 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
circum stances 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
securityholders 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 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
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the certificates for the Securities to 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
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 Underwriter 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 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
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 under the
1933 Act or proceedings therefor 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 Underwriter.
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 opinions, dated as of Closing Time, of
Xxxxxxxx & Xxxxxxxx, 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 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 Xxxxx Xxxxxxx
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& Ingersoll, 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.
(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 the matters set forth in clauses (i), (iv), (vi),
(vii) and (xii) in the opinion of Xxxxxxxx & Xxxxxxxx referred to in paragraph
(b) above. 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, business affairs or business
prospects 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 or Vice President - 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
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.
In addition, at Closing Time, the Representatives shall have
received from such other accountants as they may request in writing to the
Company 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 as may be
requested by the Underwriters and counsel for the Underwriters, with respect to
certain financial information relating to the properties acquired by the Company
and discussed in the Prospectus under the heading "Recent Developments and
Results of Operations", which financial information is incorporated by reference
into the Prospectus.
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(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.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the Chief Financial Officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Company. The opinions of
Xxxxxxxx & Xxxxxxxx, counsel for the Company, together with the
opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, special Maryland
counsel for the Company, each in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Sections 5(b) and 5(c) hereof.
(iii) Opinion of Counsel for the Underwriter. The opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
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(iv) Bring-down Comfort Letter. A letter from Deloitte &
Touche LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in
the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(g) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than three days prior to such Date of
Delivery.
(v) No Downgrading. Subsequent to the date of this Agreement,
no downgrading shall have occurred in the rating accorded the
Securities or of any of the Company's other securities by any
"nationally recognized statistical rating organization", 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 ratings of
any of the Company's securities.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
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, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
Underwriters to purchase the relevant Option Securities, may be terminated by
the Representatives by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, 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:
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(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 fees and disbursements of
counsel chosen by Xxxxxxx Xxxxx), 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).
(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
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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 Xxxxxxx Xxxxx, 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, 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, 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
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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, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
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.
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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.
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, business affairs or business prospects 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 or to enforce contracts for the sale
of the Securities to the public, 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.
(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.
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SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted 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 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:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, 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
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery 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
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, 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. As used herein, the term "Underwriter" includes any person
substituted for a Underwriter under this Section 10.
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 Xxxxxxx Xxxxx at North Tower, World Financial
Center, New York, New York 10281-1209, attention of Xxxxxxx X. Xxxxxxxxx; and
notices to the Company and the Operating Partnership shall be directed to it at
Park 00 Xxxx, Xxxxx XX, Xxxxxx Xxxxx, XX 00000, attention of the Executive Vice
President, Finance and Administration.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Company, the Operating Partnership and
their respective successors.
20
24
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.
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.
21
25
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/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
26
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX BARNEY INC.
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
By: XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
27
SCHEDULE A
Name of Underwriter Number of
------------------- Initial
Securities
----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .......................................... 500,000
Xxxxxx Xxxxxxx & Co. Incorporated ................................. 500,000
PaineWebber Incorporated .......................................... 500,000
Prudential Securities Incorporated ................................ 500,000
Xxxxxxx Xxxxx Barney Inc. ......................................... 500,000
ABN AMRO Incorporated ............................................. 25,000
BT Alex. Xxxxx Incorporated ....................................... 25,000
Xxxxxx X. Xxxxx & Co. Incorporated ................................ 25,000
Bear, Xxxxxxx & Co. Inc. .......................................... 25,000
CIBC Xxxxxxxxxxx Corp. ............................................ 25,000
Xxxx Xxxxxxxx Incorporated ........................................ 25,000
X.X. Xxxxxxx & Sons, Inc. ......................................... 25,000
EVEREN Securities, Inc. ........................................... 25,000
Xxxxxxxxxx & Co. Inc. ............................................. 25,000
Xxxxxxx, Sachs & Co. .............................................. 25,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated .............................. 25,000
NationsBanc Xxxxxxxxxx Securities LLC ............................. 25,000
Xxxxxxx Xxxxx & Associates, Inc. .................................. 25,000
The Xxxxxxxx-Xxxxxxxx Company, LLC ................................ 25,000
Xxxxx Capital Markets, A Division of First Chicago
Capital Markets, Inc. ............................................ 25,000
XX Xxxxx Securities Corporation ................................... 25,000
Xxxxxx Xxxxxxx Incorporated ....................................... 25,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. ................................... 25,000
X.X. Xxxxxxxxx, Towbin ............................................ 25,000
Wheat First Union, a Division of First Union
Capital Markets Corp. ............................................ 25,000
---------
Total ............................................................. 3,000,000
=========
SCHEDULE B
Sch B-1
28
VORNADO REALTY TRUST
8.5% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest
Title of Designated Shares:
8.5% Series B Cumulative Redeemable Preferred Shares of Beneficial
Interest
Number of Designated Shares:
Number of Firm Shares: 3,000,000
Maximum Number of Optional Shares: 450,000
Public Offering Price:
$25.00 per Share
Purchase Price by Underwriters:
$24.2125 per Share
Underwriting Discount:
$.7875 per Share
Form of Designated Shares:
Definitive form, to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery.
Specified Funds for Payment of Purchase Price:
Wire transfer of same day funds.
Time of Delivery:
10:00 a.m. (New York City time), March 17, 1999
Closing Location:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Name and Address of Designated Representative:
Designated Representative: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Address for Notices, etc.: Xxxxxxx Xxxxx, North Tower,
World Financial Center:
Xxx Xxxx, XX 00000,
Attention: Xxxxxxx Xxxxxxxxx
Dividends:
Sch B-2
29
Cumulative at the annual rate of 8.5% per share on the liquidation
preference of the Series B Preferred Shares payable quarterly in arrears
on the first calendar day of January, April, July and October of each
year, commencing July 1, 1997.
Liquidation Preference:
$25.00 per share, plus an amount equal to accrued and unpaid dividends
(whether or not earned or declared).
Ranking:
The Series B 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 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 B Preferred Units of the Operating Partnership (with terms
mirroring the terms of the Series B Preferred Shares) in exchange for the
cash proceeds from the sale of the Series B Preferred Shares. Series B
Preferred Units will rank senior to all classes of Operating Partnership
units, including the Class A, C, and D 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 B 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 B Preferred Shares are not
redeemable prior to March 17, 2004. On and after March 17, 2004, the
Series B Preferred Shares will be redeemable by the Company only with the
proceeds from certain sales of equity securities at a redemption price of
$25.00 per share, plus any accrued and unpaid dividends through the date
of redemption. The Series B Preferred Shares have no maturity date and
will remain outstanding indefinitely unless redeemed.
Voting Rights:
Holders of the Series B Preferred Shares generally will have no voting
rights. However, if dividends on the Series B Preferred Shares are in
arrears for six quarterly dividend periods, the holders of the Series B
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 B 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 to affect materially and adversely
Sch B-3
30
the rights, preferences or voting powers of the holders of the Series B
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 B Preferred Shares with respect to the payment of dividends
or amounts upon liquidation, dissolution or winding up.
Listing:
New York Stock Exchange: "VNO Pr B"
CUSIP:
000000000
Sch B-4
31
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 organized and
existing under the laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power 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;
(iii) The Operating Partnership is a limited partnership duly
organized and 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 issuance and sale of the Securities to the Underwriters
pursuant to this Agreement has 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 any committee
thereof authorizing their issuance, the Securities will be validly issued,
fully paid and nonassessable;
(v) 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;
(vi) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Operating Partnership;
(vii) 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;
(viii) 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
A-1
32
to the Underwriter have been obtained or made; provided, however, that for
purposes of this paragraph (viii), such counsel need not express any
opinion with respect to state securities laws;
(ix) The execution and delivery by the Company and the Operating
Partnership of this Agreement do not, and the issuance of the Securities
and the sale of the Securities by the Company to the Underwriters pursuant
to this Agreement 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 or breach of
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument filed as an exhibit to the Registration Statement or as an
exhibit to any current document incorporated by reference therein to which
the Company or any consolidated 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 (ix), 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 (ix), such counsel need not express
any opinion with respect to Federal or state securities laws, other
antifraud laws or fraudulent transfer laws;
(x) 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 February 11, 1998, as supplemented by the
discussion under the caption "Federal Income Tax Considerations" in the
Prospectus Supplement dated March 12, 1999, 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;
(xi) 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; and
A-2
33
(xii) 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 each part of the Registration Statement, when such part became
effective, and the Prospectus, as of the date of the Prospectus, 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 of its date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; also, nothing
that has come to such counsel's attention in the course of certain
procedures (as described in such opinion) has caused such counsel to
believe that the Prospectus, as of the date and time of delivery of such
opinion, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that such opinion may state that the
limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process
are such that such counsel do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those made under the
caption "Description of Series B Preferred 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 or schedules or other financial data derived from
accounting records contained in the Registration Statement or the
Prospectus.
In giving these opinions, Xxxxxxxx & Xxxxxxxx may state that they
are admitted to the bar of the State of New York and do not express any
opinion as to the laws of any other jurisdiction other than the Federal
laws of the United States of America and may rely (1) as to all matters of
fact, upon certificates and written statements of officers and employees
of and accountants for the Company and the Operating Partnership, (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 and (3) as to matters of
Maryland law, on the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll.
A-3
34
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 organized 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 and to enter into and perform its obligations under this
Agreement;
(iii) The Company has an authorized capitalization as set forth in
the Prospectus under the caption" Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement or pursuant to the terms of
reservations, agreements or employee benefit plans, including, without
limitation, the Vornado Realty Trust Omnibus Share Plan, dividend
reinvestment plans and employee or director stock option plans, or the
exercise of options outstanding on the date hereof, and in each case
referred to in the Prospects), 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; the issued and
outstanding shares of beneficial interest of the Company have been duly
authorized and validly issued and are fully paid and nonassessable; and
none of the outstanding shares of beneficial interest of the Company was
issued in violation of any preemptive rights of any shareholder of the
Company arising under 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 Underwriter
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 information in the Prospectus under the heading "Description
of Shares of Beneficial Interest" in the Prospectus and "Description of
Series B Preferred Shares" in the Prospectus Supplement, to the extent
that it constitutes matters of Maryland law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed by such
counsel and is correct in all material respects;
(vi) The 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
B-1
35
Interest" in the Prospectus and "Description of Series B 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 1933 Act or the 1933
Act Regulations or securities laws or regulations of any state or other
jurisdiction;
(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;
(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
consumma tion of the transactions contemplated herein and the compliance
by the Company with its obligations hereunder will 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, and subject, in the case of clauses (A) and (B), to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
In giving these opinions, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP may
state that such opinions are limited to the laws of the States 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
