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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
2,800,000 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: October 21, 1997
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TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT............................................. 1
SECTION 1. Representations and Warranties.............................. 3
(a) Representations and Warranties by the Company............... 3
(b) Officer's Certificates...................................... 9
SECTION 2. Sale and Delivery to International Managers; Closing........ 9
(a) Initial Securities.......................................... 9
(b) Option Securities........................................... 10
(c) Payment..................................................... 10
(d) Denominations; Registration................................. 11
SECTION 3. Covenants of the Company.................................... 11
(a) Delivery of Registration Statements......................... 11
(b) Delivery of Prospectuses.................................... 12
(c) Continued Compliance with Securities Laws................... 12
(d) Rule 158.................................................... 12
(e) Use of Proceeds............................................. 12
(f) Listing..................................................... 13
(g) Restriction on Sale of Securities........................... 13
SECTION 4. Payment of Expenses......................................... 13
SECTION 5. Conditions of International Managers' Obligations........... 14
(a) Effectiveness of Registration Statement..................... 14
(b) Opinions of Counsel for Company............................. 14
(c) Opinion of Special Maryland Counsel for Company............. 14
(d) Opinion of Counsel for International Managers............... 14
(e) Officers' Certificate....................................... 15
(f) Accountant's Comfort Letter................................. 15
(g) Bring-down Comfort Letter................................... 15
(h) Approval of Listing......................................... 15
(i) Lock-up Agreements.......................................... 15
(j) Purchase of Initial U.S. Securities......................... 15
(k) Conditions to Purchase of International Option Securities... 15
(l) Additional Documents........................................ 16
(m) Termination of Agreement.................................... 17
SECTION 6. Indemnification............................................. 17
(a) Indemnification of International Managers................... 17
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(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers....................................... 18
(c) Actions against Parties; Notification....................... 18
(d) Settlement without Consent if Failure to Reimburse.......... 19
SECTION 7. Contribution................................................ 19
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery............................................ 20
SECTION 9. Termination of Agreement.................................... 20
(a) Termination; General........................................ 20
(b) Liabilities................................................. 21
SECTION 10. Default by One or More of the International Managers........ 22
SECTION 11. Notices..................................................... 22
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 - Pricing Information...............................Sch B-1
Schedule C - List of persons and entities
subject to Lock-up................................Sch C-1
EXHIBITS
Exhibit A - Form of Opinions of Company's Counsel....................A-1
Exhibit B - Form of Opinion of Special Maryland Counsel..............B-1
Exhibit C - Form of Lock-up Letter...................................C-1
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
2,800,000 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
October 21, 1997
MERRILL LYNCH INTERNATIONAL
GOLDMAN SACHS INTERNATIONAL
FURMAN SELZ LLC
SALOMON BROTHERS INTERNATIONAL LIMITED
SMITH BARNEY INC.
UBS LIMITED
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Merrill Lynch International ("Merrill
Lynch") and each of the other international underwriters named in Schedule A
hereto (collectively, the "International Managers", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Goldman Sachs International, Furman Selz LLC,
Salomon Brothers International Limited, Smith Barney Inc. and UBS Limited are
acting as representatives (in such capacity, the "Lead Managers"), with respect
to the issue and sale by the Company and the purchase by the International
Managers, acting severally and not jointly, of the respective numbers of Common
Shares of Beneficial Interest, par value $0.04 per share, of the Company
("Common Shares") set forth in said Schedule A, and with respect to the grant by
the Company to the International Managers, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any
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part of 420,000 additional Common Shares to cover over-allotments, if any. The
aforesaid 2,800,000 Common Shares (the "Initial International Securities") to be
purchased by the International Managers and all or any part of the 420,000
Common Shares subject to the option described in Section 2(b) hereof (the
"International Option Securities") are hereinafter called, collectively, the
"International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 11,200,000 Common Shares (the
"Initial U.S. Securities") through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters") for which Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Furman Selz LLC,
Salomon Brothers Inc, Smith Barney Inc. and UBS Securities LLC are acting as
representatives (the "U.S. Representatives") and the grant by the Company to the
U.S. Underwriters, acting severally and not jointly, of an option to purchase
all or any part of up to 1,680,000 additional Common Shares solely to cover
overallotments, if any (the "U.S. Option Securities" and, together with the
International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities". It is understood that the Company is not obligated to sell and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3, including a
prospectus relating to the Common Shares and other securities of the Company for
the registration of such securities under the Securities Act of 1933, as amended
(the "1933 Act"). Such registration statements have been declared effective by
the Commission. A prospectus supplement reflecting the terms of the
International Securities, the terms of the offering thereof and the other
matters set forth therein has been prepared or will be prepared. Such prospectus
supplement is hereinafter called the "International Prospectus Supplement."
Concurrently with the preparation of the International Prospectus Supplement, a
prospectus supplement reflecting the terms of the U.S. 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 Rule
424(b)
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("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
"U.S. Prospectus Supplement." The International Prospectus Supplement and the
U.S. Prospectus Supplement are hereinafter collectively called the "Prospectus
Supplements." 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 International Prospectus Supplement is hereinafter called
the "International Prospectus" and as supplemented by the U.S. Prospectus
Supplement is hereinafter called the "U.S. Prospectus" and the International
Prospectus and the U.S. Prospectus are hereinafter called, together, the
"Prospectuses", except that if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplements are first filed
pursuant to Rule 424(b), the term "Prospectuses" shall refer to the basic
prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplements, in either case including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein. For purposes of this
Agreement, all references to the Registration Statement or the Prospectuses 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 ("EDGAR").
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 Prospectuses (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 Prospectuses, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, or the Prospectuses 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 Prospectuses, as the case may be.
For purposes of this Agreement, unless the context requires otherwise, all
references to "subsidiaries" shall include preferred stock affiliates of the
Company in which the Company owns all of the outstanding preferred equity.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, 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 International
Manager, as follows:
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(i) The documents incorporated by reference in the Prospectuses,
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 Prospectuses 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 an
International Manager or a U.S. Underwriter directly or through the Lead
Managers or the U.S. Representatives expressly for use in the
International Prospectus or the U.S. Prospectus as amended or supplemented
relating to such Common Shares;
(ii) The Registration Statement and the Prospectuses conform, and
any further amendments or supplements to the Registration Statement or the
Prospectuses 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
Prospectuses 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 an
International Manager or a U.S. Underwriter directly or through the Lead
Managers or the U.S. Representatives expressly for use in the
International Prospectus or the U.S. Prospectus as amended or supplemented
relating to such Common Shares;
(iii) 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 Prospectuses 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 Prospectuses; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, there has not been any change in the capitalization or
long-term debt of the Company or any of its subsidiaries 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 Prospectuses;
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(iv) The Company has been duly organized and is validly existing as
a real estate investment trust in good standing under the laws of the
State of Maryland, with trust power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses 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) Vornado Realty L.P. (the "Operating Partnership") has been
duly organized and is validly existing as a limited partnership in good
standing under the laws of the jurisdiction of its organization and has
the power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses 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 prop erty or the conduct
of business, except where the failure to so qualify would not have a mate-
rial 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 of 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 owns a 90% limited partnership interest in the
Operating Partnership.
(vi) Each subsidiary of the Company, other than the Operating
Partnership, which is covered in paragraph (v) above, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole; all of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and validly issued,
is fully paid and nonassessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except as disclosed in the
Prospectuses.
(vii) The Company has an authorized capitalization as set forth in
the Prospectuses (except for subsequent issuances, if any, pursuant to
this Agreement or pursuant to the terms of reservations, agreements or
employee benefit plans, including,
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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 referred to in the
Prospectuses), 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 non-assessable;
(viii) The Common Shares have been duly and validly authorized, and,
when the Initial International Securities are issued and delivered
pursuant to this Agreement and, in the case of any International Option
Securities, pursuant to over-allotment options with respect to such Common
Shares, such International Securities will be duly and validly issued and
fully paid and non-assessable; the Common Shares conform to the
description thereof contained in the Registration Statement and the
Prospectuses and the International Securities will conform to the
description thereof contained in the Prospectuses as amended or supple-
mented with respect to such International Securities;
(ix) The issue and sale of the Common Shares 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 and therein 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 or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
authority, agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Common 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, if any, as may be required under securities laws in
connection with the purchase and distribution of the Common Shares by the
International Managers;
(x) This Agreement and the U.S. Purchase Agreement have been duly
authorized, executed and delivered by the Company;
(xi) Other than as set forth in the Prospectuses, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a
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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;
(xii) Neither the Company nor any of its subsidiaries is in
violation of its charter documents or by-laws 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,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries;
(xiii) The statements set forth in the Prospectuses under the
captions "Description of Shares of Beneficial Interest", "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;
(xiv) Neither the Company nor any of its subsidiaries is subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(xv) 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;
(xvi) The financial statements and the financial statement schedules
included or incorporated by reference in the Registration Statement and
the Prospectuses 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 Prospectuses 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
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Statement. Any pro forma financial statements and other pro forma
financial information included in the Registration Statement and the Pro-
spectuses 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;
(xvii) Except as otherwise disclosed in the Prospectuses, 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 Prospectuses 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
Prospectuses are disclosed therein; (iv) neither the Company, any of its
subsidiaries nor, to the knowledge of the Company, any lessee of any
portion of any such party's properties is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases its
properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) no tenant
under any lease pursuant to which the Company or any of its subsidiaries
leases its properties has an option or right of first refusal to purchase
the premises leased thereunder; (vi) to the best of its knowledge, each of
the properties of the Company or any of its subsidiaries complies with all
applicable codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
will in any manner affect the size or use of, improvements or construction
on or access to the properties of the Company or any of its subsidiaries;
(xviii) Except as otherwise disclosed in the Prospectuses, 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:
8
A. each of the Company and its subsidiaries is in compliance
with all applicable laws relating to pollution or the discharge of
materials into the environment, including common law relating to
damage to property or injury to persons ("Environmental Laws"). Each
of the Company and its subsidiaries currently holds all governmental
authorizations required under Environmental Laws in order to conduct
their businesses as described in the Prospectuses, and none of the
above has any basis to believe that any such governmental
authorization may be modified, suspended or revoked, or cannot be
renewed in the ordinary course of business;
B. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release, or disposal of any
material (including radiation and noise), that could form the basis of
any claim (whether by a governmental authority or other person or
entity) under Environmental Laws for cleanup costs, damages,
penalties, fines, or otherwise, against any of the Company or its
subsidiaries, or against any person or entity whose liability for such
claim may have been retained by any of the Company or its subsid-
iaries, whether by contract or law; and
C. the Company and its subsidiaries have fully disclosed to
the International Managers and their counsel 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.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Shares.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; 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 International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial International
9
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 International Managers,
severally and not jointly, to purchase up to an additional 420,000 Common Shares
at the price per share set forth in Schedule B, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial International Securities but not payable on the International Option
Securities. 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 International Securities upon notice by the
Global Coordinator to the Company setting forth the number of International
Option Securities as to which the several International Managers are then
exercising the option and the time and date of payment and delivery for such
International Option Securities. Any such time and date of delivery for the
International Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, 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 International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, NY 10022
or at such other place as shall be agreed upon by the Global Coordinator 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 (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator 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 International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator 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 Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager 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 International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers 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
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers 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
International Manager as follows:
(a) Delivery of Registration Statements. The Company has furnished
or will deliver to the Lead Managers and counsel for the International
Managers, 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, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for
each of the International Managers. The copies of the Registration
Statement and each amendment thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
During the period when the International Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
International Securities, the Company will inform the Lead Managers of its
intention to file any amendment to the Registration Statement or any
supplement to the International Prospectus; will furnish the Lead Managers
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 Lead Managers or counsel for the International Managers
shall reasonably
11
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 Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The Prospectuses and
any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(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, the U.S. Purchase Agreement
and in the Prospectuses. 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 Prospectuses in order that the Prospectuses 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 circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary at any such time to
amend the Registration Statement or amend or supplement the Prospectuses
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
Prospectuses comply with such requirements, and the Company will furnish
to the International Managers such number of copies of such amendment or
supplement as the International Managers 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 Prospectuses under "Use of Proceeds".
12
(f) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(g) Restriction on Sale of Securities. Subject to certain
exceptions, including exceptions for the issuance of Common Shares by the
Company in certain acquisitions and transactions described in the
Prospectuses under the heading "Recent Developments - Arbor Property
Trust", during a period of 75 days from the date of the Prospectus
Supplements, the Company will not, without the prior written consent of
the Global Coordinator, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder or under the U.S. Purchase Agreement, (B) any Common Shares
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (C) any Common
Shares issued or options to purchase Common Shares granted pursuant to
existing employee benefit plans of the Company, (D) any Common Shares
issued pursuant to any non-employee director stock plan or dividend
reinvestment plan or (E) any Common Shares (or securities convertible into
or exercisable or exchangeable for Common Shares) issued by the Company in
connection with acquisitions.
SECTION 4. Payment of 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 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 International Managers and the transfer of the Securities between the
International Managers and the U.S. 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 Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectuses
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. The Underwriters will pay all expenses in
connection with the marketing of the Securities, including all "road show"
expenses.
13
Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers 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 International Managers. The U.S. 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 Company. At Closing Time, the Lead
Managers shall have received the opinions, dated as of Closing Time, of
Sullivan & Cromwell, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the International Managers, to the
effect set forth in Exhibit A hereto.
(c) Opinion of Special Maryland Counsel for Company. At Closing
Time, the Lead Managers shall have received the opinion, dated as of
Closing Time, of Ballard Spahr Andrews & Ingersoll, special Maryland
counsel for the Company, in form and substance reasonably satisfactory to
counsel for the International Managers, to the effect set forth in Exhibit
B hereto.
(d) Opinion of Counsel for International Managers. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated
as of Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the International Managers, together with signed or reproduced copies
of such letter for each of the other International Managers with respect
to the matters set forth in clauses (i), (iii), (v), (vi) and (xi) in the
opinion of Sullivan & Cromwell referred to in paragraph (b) above. In
giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York ,
the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Lead Managers. Such counsel may also 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.
14
(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 Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the
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) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Lead Managers shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance satisfactory to
the Lead Managers, 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 Prospectuses.
(g) Bring-down Comfort Letter. At Closing Time, the Lead Managers
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) 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.
(i) Lock-up Agreements. At or before Closing Time, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit C hereto signed by the persons listed on Schedule C hereto.
(j) Purchase of Initial U.S. Securities. Contemporaneously with
the purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have
purchased the Initial U.S. Securities under the U.S. Purchase Agreement.
(k) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided
in Section 2(b) hereof
15
to purchase all or any portion of the International 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 Lead Managers 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
Sullivan & Cromwell, counsel for the Company, together with the
opinion of Ballard Spahr Andrews & Ingersoll, special Maryland
counsel for the Company, each in form and substance reasonably
satisfactory to counsel for the International Managers, dated such
Date of Delivery, relating to the International 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 International Managers. The
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
International Managers, dated such Date of Delivery, relating to the
International 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.
(iv) Bring-down Comfort Letter. A letter from Deloitte &
Touche LLP, in form and substance satisfactory to the Lead Managers
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Lead Managers 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
five days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers 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
Lead Managers and counsel for the International Managers.
16
(m) 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 International Option Securities on a Date of Delivery which is
after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated by
the Lead Managers 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 International Managers. The Company and the
Operating Partnership each agree to indemnify and hold harmless each
International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus
or the Prospectuses (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 Merrill Lynch), 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;
17
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
International Manager or U.S. Underwriter through the Lead Managers or the U.S.
Representatives expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Trustees, Partners
and Officers. Each International Manager 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 International Prospectus (or any amendment
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through the Lead Managers expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the International 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 Merrill Lynch, 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
18
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 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 International Managers 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
International Managers 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
International Managers on the other hand in connection with the offering of the
International 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
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, bear to the aggregate initial public offering price of
the International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers 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 International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
19
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) 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 International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager 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
International Manager, 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 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. The International Managers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
International Securities set forth opposite their respective names in Schedule A
hereto and not joint.
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 any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers 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
20
time of execution of this Agreement or since the respective dates as of which
information is given in the International Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, 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 Lead Managers, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market 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 said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. 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.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers 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 Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting International Managers, 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 Lead
Managers 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 aggregate number of Securities to be purchased by the International
Managers and the U.S. Managers on such date, each of the non-defaulting
International Managers 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 International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate number of Securities to be purchased by the International
Managers or the U.S. Underwriters on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to
sell the International Option Securities to be purchased
21
and sold on such Date of Delivery, shall terminate without liability on
the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager 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
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers 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 Prospectuses or
in any other documents or arrangements. As used herein, the term "International
Manager" includes any person substituted for a International Manager 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
International Managers shall be directed to the Lead Managers c/o Merrill Lynch
International at Ropemaker Place, 25 Ropemaker Street, London EC2Y 9LY, England,
attention of Richard Saltzman; and notices to the Company shall be directed to
it at Park 80 West, Plaza II, Saddle Brook, NJ 07663, attention of the
Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the International Managers, the Company, the Operating
Partnership and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers and the Company 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 International Managers and the Company 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
International Manager 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.
22
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
between the International Managers and the Company in accordance with its terms.
Very truly yours,
VORNADO REALTY TRUST
By /s/ Steven Roth
---------------------------------
Title: Chairman of the Board
of Trustees
VORNADO REALTY L.P.
By /s/ Steven Roth
---------------------------------
Title: Chairman of the Board
of Trustees
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
GOLDMAN SACHS INTERNATIONAL
FURMAN SELZ LLC
SALOMON BROTHERS INTERNATIONAL LIMITED
SMITH BARNEY INC.
UBS LIMITED
BY: MERRILL LYNCH INTERNATIONAL
By /s/ Michael Profenius
-----------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
SCHEDULE A
Name of International Manager Number of
----------------------------- Initial
International
Securities
-------------
Merrill Lynch International.................................. 466,670
Goldman Sachs International .................................. 466,666
Furman Selz LLC .............................................. 466,666
Salomon Brothers International Limited........................ 466,666
Smith Barney Inc. ............................................ 466,666
UBS Limited................................................... 466,666
---------
Total......................................................... 2,800,000
=========
SCHEDULE B
VORNADO REALTY TRUST
2,800,000 Common Shares of Beneficial Interest
1. The initial public offering price per share for the Securities shall be
$45.00.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $42.86, being an amount
equal to the initial public offering price set forth above less $2.14 per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial International
Securities but not payable on the International Option Securities.
SCHEDULE C
List of persons and entities
subject to lock-up
Steven Roth
Michael Fascitelli
Interstate Properties
Exhibit A
FORM OF OPINIONS 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 and authority to own, lease
and operate its properties and conduct its business substantially as described
in the Prospectuses and the Company has the trust power and authority to enter
into and perform its obligations under this Agreement;
(iii) The issuance and sale of the International Securities to the
International Managers pursuant to this Agreement has been duly authorized and,
when issued and delivered by the Company pursuant to this Agreement against
payment pursuant to this Agreement, the International Securities will be validly
issued, fully paid and nonassessable;
(iv) Such counsel does not know of any litigation or governmental
proceedings instituted or threatened against the Company or any of its
subsidiaries that would be required to be disclosed in the Prospectuses 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 Prospectuses
that are not so summarized;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The Registration Statement has been declared effective under
the 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; and
(vii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the Federal laws of
the United States and the laws of the State of New York for the issuance, sale
and delivery of the International Securities by the Company to the International
Managers have been obtained or made; provided, however, that for purposes of
this paragraph (vii), such counsel need not express any opinion with respect to
state securities laws;
(viii) The execution and delivery by the Company of this Agreement
does not, and the issuance of the International Securities and the sale of the
International Securities to the International Managers 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 or articles of incorporation or by-laws of any of its
subsidiaries, (B) violate any court order or administrative decree known to such
counsel or any federal law of the United States or law of the State of New York
applicable to the Company, or (C) result in a default under or breach of any
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
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 (viii), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; provided,
however, that for purposes of this paragraph (viii), such counsel need not
express any opinion with respect to federal or state securities laws, other
antifraud laws or fraudulent transfer laws;
(ix) The information set forth in the Prospectuses under the
heading "Certain Federal Income Tax Considerations", and under such other
heading in the Prospectuses, as amended or supplemented with respect to the
International Securities, describing the tax considerations in connection with
the International Securities, to the extent that it constitutes matters of law
or legal conclusions, is correct in all material respects; provided that such
opinion may be rendered in reliance upon representations made by third parties
and, as to the qualification of Alexander's, Inc. as a real estate investment
trust for federal income tax purposes, an opinion of Shearman & Sterling;
(x) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940;
(xi) On the basis of the information which was reviewed in the
course of the performance of the services referred to in their opinion
considered in the light of their understanding of the applicable law (including
the requirements of Form S-3 and the character of the prospectus contemplated
thereby) and the experience they have gained through their practice under the
1933 Act, such counsel are of the opinion that the Registration Statement, as of
its effective date, and the Prospectuses, as of the date of the Prospectuses,
appeared on their face to be appropriately responsive in all material respects
to the requirements of the 1933 Act and the 1933 Act Regulations; and that
nothing that came to their attention in the course of their review has caused
them to believe that the Registration Statement, as of its effective date,
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
Prospectuses, as of their 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 Prospectuses, 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 Prospectuses,
except as otherwise specifically referred to in paragraph (viii) above and
except for those made under the heading "Description of Common Shares" in the
Prospectuses insofar as they relate to the provisions of documents therein
described, and that such counsel need not express any opinion or belief as to
the financial statements and schedules or other financial data contained in the
Registration Statement or the Prospectuses.
In giving these opinions, Sullivan & Cromwell 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 (2) as to all matters of Maryland law, upon the opinion of Ballard
Spahr Andrews & Ingersoll and certificates of appropriate government officials.
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 the laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectuses and to enter into and perform its obligations under this Agreement;
(iii) The authorized, issued and outstanding shares of beneficial
interest of the Company are as set forth in the Prospectuses under
"Capitalization"; 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 Maryland law or the Declaration of Trust or Bylaws of
the Company or, to the best of such counsel's knowledge, otherwise;
(iv) The issuance and sale of the International Securities to the
International Managers pursuant to this Agreement has been duly authorized, and,
when issued and delivered by the Company against payment therefor pursuant to
this Agreement, the International Securities will be validly issued, fully paid
and nonassessable;
(v) The information in the Prospectuses under the heading
"Description of Shares of Beneficial Interest" and under such other heading in
the Prospectuses as supplemented with respect to the International Securities
which sets forth the terms of the International Securities, 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 International Securities conform in all material respects
as to matters of Maryland law to the description thereof contained in the
Prospectuses and the form of certificate used to evidence the International
Securities is in due and proper form in accordance with applicable statutory
requirements;
(vii) The issuance of the International Securities is not subject
to any preemptive or similar rights arising under Maryland law, the Declaration
of Trust or the Bylaws of the Company or, to the best of such counsel's
knowledge, otherwise;
(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 International Securities
to the International Managers, 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, executed and
delivered by the Company;
(x) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and the compliance by the
Company with its obligations hereunder will not result in any violation of (A)
the provisions of the Amended and Restated Declaration of Trust or Bylaws of the
Company or the charter documents or bylaws of any subsidiary of the Company
incorporated in New Jersey, Delaware, Maryland and Pennsylvania (as
appropriately identified on an exhibit to such opinion or otherwise), or (B) any
applicable law or administrative regulation or, to the best knowledge of such
counsel, administrative or court decree, except with respect to clause (B), 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, Ballard Spahr Andrews & Ingersoll may state that
such opinions are limited to the laws of the States of Maryland and New Jersey
and the Commonwealth of Pennsylvania, and Delaware corporate law and may rely
(1) as to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company and (2) as to the
qualification and good standing of the Company or any of its subsidiaries in any
other jurisdiction, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
Exhibit C
October 21, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
as Global Coordinator of the several
Underwriters to be named in the
within-mentioned Purchase Agreements
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Vornado Realty Trust
Dear Sirs or Madams:
The undersigned is the beneficial owner of _______ common shares
of beneficial interest, par value $.04 per share ( the "Common Shares"), of
Vornado Realty Trust, a Maryland real estate investment trust (the "Company").
The undersigned understands that the Company has filed with the Securities and
Exchange Commission Registration Statements on Form S-3 (File Nos. 33-62395 and
333-29013), which were declared effective on December 26, 1995 and September 19,
1997, respectively (collectively, the "Shelf Registration Statement"), for the
registration of debt and equity securities, and that, pursuant to such Shelf
Registration Statement, the Company is contemplating a public offering of up to
16,100,000 Common Shares, including 2,100,000 shares subject to an
over-allotment option (the "Offering"). The undersigned further understands that
you are contemplating entering into a U.S. Purchase Agreement and an
International Purchase Agreement (collectively, the "Purchase Agreements") in
connection with the Offering.
In order to induce the Company and you to enter into the Purchase
Agreements and to proceed with the Offering, the undersigned agrees, for the
benefit of the Company and you, that the undersigned will not, without your
prior written consent, offer, sell, contract to sell or otherwise dispose of any
Common Shares or any securities convertible into or exercisable or exchangeable
for Common Shares, owned by the undersigned or with respect to which the under-
signed has the power of disposition, whether directly or indirectly, for a
period of 75 days subsequent to the date of the final U.S. Prospectus filed by
the Company pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "1933 Act"), except such offers and sales made pursuant to Rule 144 of the
rules and regulations of the Commission under the 1933 Act, and except that the
undersigned may transfer Common Shares or any such securities to any
family member or to any trust for the benefit of the undersigned or any of the
undersigned's family members, provided that such transferee agrees in writing
to be bound by the terms of this letter. It is further understood that the
Company may, within the aforesaid 75-day period, file a registration statement
under the Securities Act of 1933 to register certain Common Shares beneficially
owned by the undersigned (including Common Shares held in trust for the benefit
of the undersigned and/or underlying options owned by the undersigned), which
shares shall be subject to the agreement contained herein, and that certain
options owned by the undersigned may vest.
Very truly yours,