EXHIBIT 1.1
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
8,500,000 Common Shares of Beneficial Interest
(par value $0.04 per share)
UNDERWRITING AGREEMENT
Dated: November 16, 2001
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TABLE OF CONTENTS
Underwriting Agreement........................................................................................... 1
SECTION 1. Representations and Warranties................................................................. 2
(a) Representations and Warranties by the Company.................................................. 2
(i) Incorporated Documents................................................................ 2
(ii) Compliance with Registration Requirements............................................. 3
(iii) No Material Adverse Change in Business................................................ 3
(iv) Good Standing of the Company.......................................................... 3
(v) Qualification as a REIT............................................................... 4
(vi) Good Standing of the Operating Partnership............................................ 4
(vii) Good Standing of Subsidiaries......................................................... 4
(viii) Capitalization........................................................................ 5
(ix) Authorization and Description of Common Shares........................................ 5
(x) Absence of Conflicts and Defaults..................................................... 5
(xi) Authorization of this Underwriting Agreement.......................................... 6
(xii) Absence of Proceedings................................................................ 6
(xiii) No Violations or Defaults............................................................. 6
(xiv) Accuracy of Certain Descriptions...................................................... 6
(xv) Investment Company Act................................................................ 6
(xvi) Independent Public Accountants........................................................ 6
(xvii) Financial Statements.................................................................. 7
(xviii) Title to Property..................................................................... 7
(xix) Environmental Laws.................................................................... 8
(xx) No Stabilizing Actions................................................................ 8
(b) Officer's Certificates......................................................................... 9
SECTION 2. Sale and Delivery to the Underwriter; Closing.................................................. 9
(a) Initial Securities............................................................................. 9
(b) Option Securities.............................................................................. 9
(c) Payment........................................................................................ 9
(d) Denominations; Registration.................................................................... 10
SECTION 3. Covenants of the Company....................................................................... 10
(a) Delivery of Registration Statements............................................................ 10
(b) Delivery of Prospectus......................................................................... 10
(c) Continued Compliance with Securities Laws...................................................... 10
(d) Rule 158....................................................................................... 11
(e) Use of Proceeds................................................................................ 11
(f) Listing........................................................................................ 11
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(g) Restriction on Sale of Securities.............................................................. 11
SECTION 4. Payment of Expenses............................................................................ 12
(a) Expenses....................................................................................... 12
(b) Termination of Agreement....................................................................... 12
SECTION 5. Conditions of the Underwriter's Obligations.................................................... 12
(a) Effectiveness of Registration Statement........................................................ 12
(b) Opinions of Counsel for the Company............................................................ 13
(c) Opinion of Special Maryland Counsel for the Company............................................ 13
(d) Opinion of Counsel for the Underwriter......................................................... 13
(e) Officers' Certificate.......................................................................... 13
(f) Accountants' Comfort Letter.................................................................... 13
(g) Bring-down Comfort Letter...................................................................... 14
(h) Approval of Listing............................................................................ 14
(i) Conditions to Purchase of Option Securities.................................................... 14
(i) Officers' Certificate................................................................. 14
(ii) Opinions of Counsel for the Company................................................... 14
(iii) Opinion of Counsel for the Underwriter................................................ 14
(iv) Bring-down Comfort Letter............................................................. 14
(j) Additional Documents........................................................................... 15
(k) Lock-up Agreements............................................................................. 15
(l) Termination of Agreement....................................................................... 15
SECTION 6. Indemnification................................................................................ 15
(a) Indemnification of the Underwriter............................................................. 15
(b) Indemnification of Company, Operating Partnership, Trustees, Partners and
Officers....................................................................................... 16
(c) Actions against Parties; Notification.......................................................... 16
(d) Settlement without Consent if Failure to Reimburse............................................. 17
SECTION 7. Contribution................................................................................... 17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................................. 19
SECTION 9. Termination of Agreement....................................................................... 19
(a) Termination; General........................................................................... 19
(b) Liabilities.................................................................................... 19
SECTION 10. INTENTIONALLY OMITTED.......................................................................... 19
SECTION 11. Notices........................................................................................ 19
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SECTION 12. Parties..................................................................................... 20
SECTION 13. GOVERNING LAW AND TIME...................................................................... 20
SECTION 14. Effect of Headings.......................................................................... 20
SCHEDULES
Schedule A - Terms of Common Shares....................................................... Sch A-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel............................................ A-1
Exhibit B - Form of Opinion of Special Maryland Counsel to the Company...................... B-1
Exhibit C - Form of Lock-up Letter.......................................................... C-1
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
8,500,000 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
Underwriting Agreement
November 16, 2001
Lehman Brothers Inc.
101 Hudson Street
Jersey City, NJ 07302
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), and Vornado Realty L.P., a Delaware limited partnership (the
"Operating Partnership"), each confirms its agreement with Lehman Brothers Inc.
("Lehman Brothers" or the "Underwriter") with respect to the issue and sale by
the Company and the purchase by the Underwriter of the number of Common Shares
of Beneficial Interest, par value $0.04 per share, of the Company ("Common
Shares") set forth above, and with respect to the grant by the Company to the
Underwriter of the option described in Section 2(b) hereof to purchase all or
any part of 1,275,000 additional Common Shares to cover over-allotments, if any.
The aforesaid 8,500,000 Common Shares (the "Initial Securities") to be purchased
by the Underwriter and all or any part of the 1,275,000 Common Shares subject to
the option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called collectively the "Securities".
The Company understands that the Underwriter proposes to offer the
Securities (the "Offering") as set forth in the prospectus supplement as soon
after the execution and delivery hereof as in the judgment of Lehman Brothers is
advisable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3, including a
prospectus relating to the 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 Securities,
the terms of the offering thereof and the other matters set forth therein has
been prepared or will be prepared and will be filed in accordance with the
provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such prospectus supplement, in the form first filed after the date hereof
pursuant to Rule 424(b), is hereinafter called the "Prospectus Supplement." Such
registration statements, as amended at the date hereof, including all documents
incorporated or deemed to be incorporated by reference therein and the exhibits
thereto, and schedules thereto, if any, are hereinafter called the "Registration
Statement" and the basic prospectus included therein and relating to all
offerings of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is hereinafter called the "Prospectus", except that if
such basic prospectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424(b), the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement, including the documents filed
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), that are incorporated by reference therein.
For purposes of this Agreement, all references to the Registration Statement or
the Prospectus or any amendment or supplement to either of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("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 Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof and agrees with the Underwriter, as
follows:
(i) Incorporated Documents. The documents incorporated by
reference in the Registration Statement and the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements
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of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement and the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by the Underwriter expressly for use in the Registration Statement or
the Prospectus, in each case as amended or supplemented, relating to
such Common Shares;
(ii) Compliance with Registration Requirements. The
Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the 1933 Act and the 1933 Act Regulations and do not and will not,
as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter expressly for use in the Prospectus
as amended or supplemented relating to such Common Shares;
(iii) No Material Adverse Change in Business. Neither the
Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not been any
change in the capitalization or long-term debt of the Company or any
material adverse change in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus.
(iv) Good Standing of the Company. The Company is a real
estate investment trust duly formed and existing under the laws of the
State of Maryland in good standing with
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the State Department of Assessments and Taxation of Maryland, with
trust power to own, lease and operate its properties and to conduct its
business substantially as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign organization to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole;
(v) Qualification as a REIT. The Company is organized in
conformity with the requirements for qualification as a real estate
investment trust (a "REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"), and currently intends to operate in a manner
which allows the Company to continue to meet the requirements for
taxation as a REIT under the Code;
(vi) Good Standing of the Operating Partnership. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware
and has partnership power and authority to own, lease and operate its
properties and to conduct its business substantially as described in
the Prospectus and is duly qualified as a foreign organization to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Operating Partnership; all of the issued and
outstanding limited partnership interests in the Operating Partnership
have been duly authorized and validly issued and are fully paid and
nonassessable; the Company is the sole general partner of, and owned an
approximately 86% common limited partnership interest in, the Operating
Partnership as of September 30, 2001;
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company, other than the Operating Partnership, which is covered in
paragraph (vi) above, has been duly formed and is validly existing in
good standing under the laws of the jurisdiction of its organization
and has power and authority to own, lease and operate its properties
and to conduct its business substantially as described in the
Prospectus and is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the 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 or the Operating
Partnership, directly or through subsidiaries, free and clear of any
security interest, mortgage,
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pledge, lien, encumbrance, claim or equity, except as would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
its subsidiaries taken as a whole and except as disclosed in the
Prospectus;
(viii) Capitalization. The Company has an authorized
capitalization as set forth in its Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 2001 (except for subsequent
issuances, if any, pursuant to this Agreement or pursuant to the terms
of reservations, agreements or employee benefit plans, including,
without limitation, the Vornado Realty Trust Omnibus Share Plan,
dividend reinvestment plans and employee or director stock option
plans, the redemption of units of the Operating Partnership or the
exercise of options outstanding on the date hereof), and all of the
issued and outstanding shares of beneficial interest of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable;
(ix) Authorization and Description of Common Shares. The
Common Shares have been duly authorized, and, when the Initial
Securities are issued and delivered pursuant to this Agreement and, in
the case of any Option Securities, pursuant to over-allotment options
with respect to such Common Shares, such Securities will be duly and
validly issued and fully paid and nonassessable; the Common Shares
conform to the description thereof contained in the Prospectus under
the captions "Description of Shares of Beneficial Interest" and
"Supplemental Description of Shares of Beneficial Interest".
(x) Absence of Conflicts and Defaults. The issue and sale of
the Common Shares and each over-allotment option, if any, and the
compliance by the Company with all of the provisions of this Agreement
and each over-allotment option, if any, and the consummation of the
transactions contemplated herein have been duly authorized by all
necessary trust action and, except as would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries taken as a whole, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Amended and Restated
Declaration of Trust, as amended, or Amended and Restated Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental authority, agency or body having jurisdiction over 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
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and the 1933 Act Regulations and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Common Shares by the Underwriter;
(xi) Authorization of this Underwriting Agreement. This
Agreement has been duly authorized by all necessary trust action of the
Company and all necessary partnership action of the Operating
Partnership and has been executed and delivered by the Company and the
Operating Partnership;
(xii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject,
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no
contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement by
the 1933 Act or the 1933 Act Regulations which have not been so filed;
(xiii) No Violations or Defaults. Neither the Company nor any
of its subsidiaries is in violation of its organizational documents or
bylaws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties or assets may be bound, which default would have a
material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole;
(xiv) Accuracy of Certain Descriptions. The statements set
forth in the Prospectus under the captions "Description of Shares of
Beneficial Interest", "Supplemental Description of the 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;
(xv) Investment Company Act. Neither the Company nor the
Operating Partnership is subject to registration as an "investment
company" under the Investment Company Act;
(xvi) Independent Public Accountants. Deloitte & Touche LLP,
who have certified certain financial statements and financial statement
schedules of the Company and its
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subsidiaries included or incorporated by reference in the Registration
Statement, are independent public accountants as required by the 1933
Act and the 1933 Act Regulations;
(xvii) Financial Statements. The financial statements and the
financial statement schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as at the dates
indicated, the results of their operations for the periods specified
and the information required to be stated therein; and said financial
statements and financial statement schedules have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The selected
financial data included or incorporated by reference in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the consolidated financial statements
included or incorporated by reference in the Registration Statement.
Any pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X of the Commission and present fairly the
information shown therein; the pro forma adjustments, if any, have been
properly applied to the historical amounts in the compilation of such
statements, and in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein;
(xviii) Title to Property. Except as otherwise disclosed in
the Prospectus, and except as would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken
as a whole: (i) each of the Company and its subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by such party, in each case free of all liens,
encumbrances and defects; (ii) all of the leases under which the
Company or any of its subsidiaries holds or uses real property or
assets as a lessee are in full force and effect, and neither the
Company nor any of its subsidiaries is in material default in respect
of any of the terms or provisions of any of such leases and no claim
has been asserted by anyone adverse to any such party's rights as
lessee under any of such leases, or affecting or questioning any such
party's right to the continued possession or use of the leased property
or assets under any such leases; (iii) all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties
and assets of the Company or any of its subsidiaries that are required
to be disclosed in the Prospectus are disclosed therein; (iv) neither
the Company, any of its subsidiaries nor, to the knowledge of the
Company, any lessee of any portion of any such party's properties is in
default under any of the leases pursuant to which the Company or any of
its subsidiaries leases its properties and neither the Company nor any
of its subsidiaries knows of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default under
any of such leases; (v) no tenant under any lease pursuant to which the
Company or any of its subsidiaries leases its properties has an option
or right of first refusal to purchase the premises leased thereunder;
(vi) to the best of its
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knowledge, each of the properties of the Company or any of its
subsidiaries complies with all applicable codes and zoning laws and
regulations; and (vii) neither the Company nor any of its subsidiaries
has knowledge of any pending or threatened condemnation, zoning change
or other proceeding or action that will in any manner affect the size
or use of, improvements or construction on or access to the properties
of the Company or any of its subsidiaries;
(xix) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries taken as a whole:
A. each of the Company and its subsidiaries is in
compliance with all applicable laws relating to pollution or
the discharge of materials into the environment, including
common law relating to damage to property or injury to persons
("Environmental Laws"), each of the Company and its
subsidiaries currently holds all governmental authorizations
required under Environmental Laws in order to conduct their
businesses as described in the Prospectus, and neither the
Company nor any of its subsidiaries has any basis to believe
that any such governmental authorization may be modified,
suspended or revoked, or cannot be renewed in the ordinary
course of business;
B. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, threatened release, or
disposal of any material (including radiation and noise), that
could form the basis of any claim (whether by a governmental
authority or other person or entity) under Environmental Laws
for cleanup costs, damages, penalties, fines, or otherwise,
against any of the Company or its subsidiaries, or against any
person or entity whose liability for such claim may have been
retained by any of the Company or its subsidiaries, whether by
contract or law; and
C. the Company and its subsidiaries have fully
disclosed to the Underwriter or counsel for the Underwriter
all studies, reports, assessments, audits and other
information in their possession or control relating to any
pollution or release, threatened release or disposal of
materials regulated under Environmental Laws on, at, under,
from or transported from any of their currently or formerly
owned, leased or operated properties, including, without
limitation, all information relating to underground storage
tanks and asbestos containing materials.
(xx) No Stabilizing Actions. Neither the Company nor the
Operating Partnership has taken, and neither the Company nor the
Operating Partnership will take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Common Shares.
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(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriter; 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 the Underwriter, and the Underwriter agrees
to purchase from the Company, at the price per share set forth in Schedule A,
the number of Initial Securities set forth in Schedule A opposite the name of
the Underwriter.
(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 Underwriter to purchase up
to an additional 1,275,000 Common Shares at the price per share set forth in
Schedule B. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Underwriter to the
Company setting forth the number of Option Securities as to which the
Underwriter is then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery for the
Option Securities (a "Date of Delivery") shall be determined by Lehman Brothers,
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.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036 or at such
other place as shall be agreed upon by the Underwriter and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by Lehman Brothers and the Company (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Lehman Brothers and
the Company, on each Date of Delivery as specified in the notice from Lehman
Brothers to the Company.
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 Underwriter of certificates for the Securities to be purchased by them.
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(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time or the relevant Date of Delivery, as
the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriter 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 the
Underwriter as follows:
(a) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and copies of all consents and certificates of experts. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
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 of the Commission.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will inform
the Underwriter of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Underwriter 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 Underwriter or counsel to the Underwriter shall reasonably object (it being
understood that the terms "amendment" and "supplement" do not include documents
filed by the Company pursuant to the 1934 Act).
(b) Delivery of Prospectus. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter 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 of the Commission.
(c) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"), so as
to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time
10
when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary for the Company to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriter such number of copies of such amendment
or supplement as the Underwriter may reasonably request.
(d) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(e) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(f) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(g) Restriction on Sale of Securities. During a period of 30 days from
the date of the Prospectus Supplement, the Company will not, without the prior
written consent of Lehman Brothers, 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, (B) any Common Shares issued by the Company
on the redemption, conversion or exchange of convertible or exchangeable
securities outstanding on the date hereof, (C) any Common Shares issued pursuant
to existing employee stock option plans, (D) any Common Shares or securities
convertible into or redeemable, exercisable or exchangeable for Common Shares
issued in connection with the Charles E. Smith Commercial Realty L.P.
acquisition or (E) up to an additional 1,100,000 Common Shares.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and printing of this Agreement and such other
documents
11
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 Underwriter, 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 Underwriter, (iv) the fees and disbursements
of the Company's counsel and accountants, (v) the qualification, if any, of the
Securities under state securities laws, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter in connection therewith
and in connection with the preparation of a Blue Sky Survey and any supplement
thereto, if any, (vi) the printing and delivery to the Underwriter of copies of
the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Securities, (viii) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriter in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities and (ix) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange. It is understood,
however, that, except as provided in this Section and Section 6 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of
its counsel, stock transfer taxes on resale of any of the Securities by it, and
any advertising expenses connected with any offers of the Securities the
Underwriter may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter.
SECTION 5. Conditions of the Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any subsidiary of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. No stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the 1933 Act
Regulations.
(b) Opinions of Counsel for the Company. At Closing Time, the
Underwriter shall have received the opinion and letter, dated as of Closing
Time, of Sullivan & Cromwell, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect set forth
in Exhibit A hereto.
12
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, the Underwriter shall have received the opinion, dated as of Closing Time,
of Ballard Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for the Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter, with
respect to the matters set forth in clauses (i), (v) and (vi) in the opinion and
(i) in the letter in Exhibit A hereto. In giving such opinion such counsel may
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, and the Underwriter shall have
received a certificate of the Chairman or President, and the Executive Vice
President - Finance and Administration, Chief Financial Officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the best of such officers' knowledge, are pending or are
contemplated by the Commission.
(f) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Underwriter shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
In addition, at the time of the execution of this Agreement, the
Underwriter shall have received from Arthur Andersen LLP a letter, in form and
substance satisfactory to the Underwriter, containing statements and information
as may be requested by the Underwriter and counsel for the Underwriter, with
respect to certain financial information relating to Charles E. Smith Commercial
Realty L.P. contained in the Company's Current Report on Form 8-K dated October
19, 2001, which financial information is incorporated by reference into the
Prospectus.
13
(g) Bring-down Comfort Letter. At Closing Time, the Underwriter 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) Conditions to Purchase of Option Securities. In the event that the
Underwriter exercises its option provided in Section 2(b) hereof to purchase all
or any portion of the Option Securities, the representations and warranties of
the Company contained herein and the statements in any certificates furnished by
the Company or any subsidiary of the Company hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriter 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, LLP, special Maryland counsel for
the Company, each in form and substance reasonably satisfactory to
counsel for the Underwriter, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by Sections 5(b)
and 5(c) hereof.
(iii) Opinion of Counsel for the Underwriter. The opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte &
Touche LLP, in form and substance satisfactory to the Underwriter and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Underwriter pursuant to
Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
three days prior to such Date of Delivery.
(j) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriter shall have been furnished with such documents and
opinions as they may require
14
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 Underwriter and
counsel for the Underwriter.
(k) Lock-up Agreements. At the date of this Agreement, Lehman Brothers
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule C hereto.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
Underwriter to purchase the relevant Option Securities, may be terminated by the
Underwriter 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 the Underwriter. The Company and the Operating
Partnership each agree to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such
15
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 Lehman Brothers), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers. The Underwriter 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 the Prospectus (or any
amendment thereto) in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Lehman Brothers, 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
16
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into, (iii) such
indemnifying party, if it has not theretofore paid such reimbursement, is
requested again to pay reimbursement at least five, but not more than ten, days
prior to such settlement being entered into, and (iv) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter 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 Underwriter 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
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the
17
difference between the aggregate amounts paid to the Company by the Underwriter
in respect of the Securities and the total proceeds received by the Underwriter
in connection with the Offering of the Securities.
The relative fault of the Company on the one hand and the Underwriter
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 Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 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 the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each trustee or partner, as the case may be, of the Company or the Operating
Partnership, each officer who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or the Operating Partnership, as
the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in
18
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter or any controlling person of the Underwriter, or by or on behalf
of the Company or the Operating Partnership or any officer or trustee or partner
or controlling person of the Company or the Operating Partnership, and shall
survive delivery of the Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in or affecting the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries taken
as a whole, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to commence or continue the offering
of the Securities or to enforce contracts for the sale of the Securities to the
public, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of such exchanges or by order of the Commission or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. INTENTIONALLY OMITTED.
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
Underwriter shall be directed to Lehman Brothers Inc. at 101 Hudson St., Jersey
City, NJ 07302, attention of David Lazarus; and notices to the Company and the
Operating Partnership shall be directed to it at 888 Seventh Avenue, New York,
NY 10019, attention of the Executive Vice President - Finance and
Administration, Chief Financial Officer.
19
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter, 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 Underwriter, the Company, the Operating Partnership and their
respective successors and the controlling persons and officers, trustees and
partners referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter, the Company, the Operating Partnership and
their respective successors, and said controlling persons and officers, trustees
and partners and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriter, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
VORNADO REALTY TRUST
By: /s/ Joseph Macnow
----------------------
Name:
Title:
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ Joseph Macnow
----------------------
Name:
Title:
21
CONFIRMED AND ACCEPTED,
as of the date first above written.
LEHMAN BROTHERS INC.
By: /s/ LEHMAN BROTHERS INC.
--------------------------------
Name:
Title:
22
SCHEDULE A
VORNADO REALTY TRUST
COMMON SHARES OF BENEFICIAL INTEREST
TITLE OF DESIGNATED SHARES:
Common Shares of Beneficial Interest
NUMBER OF DESIGNATED SHARES:
NUMBER OF FIRM SHARES: 8,500,000
MAXIMUM NUMBER OF OPTIONAL SHARES: 1,275,000
INITIAL OFFERING PRICE TO PUBLIC:
Lehman Brothers propose to offer the Designated Shares from time to
time for sale in negotiated transactions, or otherwise, at varying
prices to be determined at the time of each sale.
PURCHASE PRICE BY LEHMAN BROTHERS:
$38.59 per share
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds.
TIME OF DELIVERY:
9:00 a.m. (New York City time), November 21, 2001
CLOSING LOCATION:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, New York 10036
LISTING:
New York Stock Exchange: VNO
Sch A-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a real estate investment trust duly
organized and existing under the laws of the State of Maryland and is
in good standing with the State Department of Assessments and Taxation
of Maryland;
(ii) The Company has the trust power to own, lease and operate
its properties and to conduct its business substantially as described
in the Prospectus and to enter into and perform its obligations under
this Agreement;
(iii) The Operating Partnership is a limited partnership duly
organized and existing under the laws of the State of Delaware and has
the partnership power and authority to own, lease and operate its
properties and conduct its business substantially as described in the
Prospectus;
(iv) The Securities have been duly authorized and validly
issued and are fully paid and nonassessable;
(v) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership;
(vi) The Registration Statement has been declared effective
under the 1933 Act, and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending under the 1933 Act;
(vii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the
Federal laws of the United States and the laws of the State of New York
for the issuance, sale and delivery of the Securities by the Company to
the Underwriter have been obtained or made; provided, however, that for
purposes of this paragraph (viii), such counsel need not express any
opinion with respect to state securities laws that may be applicable to
the issuance, sale or delivery of the Securities;
(viii) The execution and delivery by the Company and the
Operating Partnership of this Agreement, the issuance of the Securities
and the sale of the Securities by the
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Company to the Underwriter pursuant to this Agreement do not, and the
performance by the Company of its obligations under this Agreement will
not, (A) violate the Company's Amended and Restated Declaration of
Trust, as amended, or the Company's Amended and Restated Bylaws or the
certificate of limited partnership of the Operating Partnership, (B)
violate any court order or administrative decree known to such counsel
or any Federal law of the United States or law of the State of New York
applicable to the Company or the Operating Partnership, or (C) result
in a default under or breach of any agreement filed as an exhibit to
the Company's most recent Annual Report on Form 10-K and any subsequent
Quarterly Report on Form 10-Q or Current Report on Form 8-K under Item
601(b)(10) of Regulation S-K, subject in the case of clauses (A), (B)
and (C) of this paragraph (viii), to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; provided, however, that for purposes of this
paragraph (ix), such counsel need not express any opinion with respect
to Federal or state securities laws, other antifraud laws, fraudulent
transfer laws or the Employee Retirement Income Security Act of 1974
and related laws;
(ix) Such counsel shall confirm (i) the opinion that,
commencing with its taxable year ending December 31, 1993, the Company
has been organized in conformity with the requirements for
qualification as a REIT under the Code, and its proposed method of
operation will enable it to satisfy the requirements for qualification
and taxation as a REIT and (ii) that the discussion set forth under the
caption "Federal Income Tax Considerations" in the Prospectus
Supplement dated November 16, 2001 to the extent it describes matters
of law or legal conclusions, is correct in all material respects; in
providing such opinion, such counsel may rely (i) upon the statements
and representations contained in certificates provided by the Company
and Two Penn Plaza REIT, Inc., (ii) without independent investigation,
upon statements and representations contained in a certificate provided
by Alexander's, Inc., (iii) without investigation, upon an opinion of
Shearman & Sterling concerning the qualification of Alexander's as a
REIT for federal income tax purposes and (iv) upon any other
certificates or opinions of counsel as deemed necessary or appropriate
in rendering such opinion and subject to an analysis of the Code,
Treasury Regulations thereunder, judicial authority and current
administrative rulings and such other laws and facts as deemed relevant
and necessary; and
(x) Neither the Company nor the Operating Partnership is an
"investment company", as such term is defined in the Investment Company
Act of 1940.
In giving this opinion, Sullivan & Cromwell may state that
such opinion is limited to the Federal laws of the United States of
America, the laws of the State of New York, the Laws of the State of
Maryland and the Revised Uniform Limited Partnership Act of the State
of Delaware, and such counsel express no opinion as to the effect of
the laws of any other jurisdiction; and such counsel may rely (1) as to
certain matters, upon information obtained from public officials,
officers of the Company and its subsidiaries and other sources believed
by them to be responsible and (2) as to all matters of Maryland law, on
the opinion of Ballard Spahr Andrews & Ingersoll, LLP, and such
counsel's opinion may be subject to the same
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assumptions, qualifications and limitations with respect to such
matters as are contained in such opinion of Ballard Spahr Andrews &
Ingersoll, LLP. Such counsel may assume that the certificates for the
Securities conform to the specimen thereof examined by them and have
been duly countersigned and registered by a registrar and transfer
agent of the Securities, that this Agreement has been duly authorized,
executed and delivered by the Underwriter and that the signatures on
all documents examined by them are genuine, assumptions which such
counsel need not independently verify.
(i) On the basis of the information which was reviewed in the
course of the performance of the services referred to in their opinion
considered in the light of their understanding of the applicable law
(including the requirements of Form S-3 and the character of the
prospectus contemplated thereby) and the experience they have gained
through their practice under the 1933 Act, such counsel are of the
opinion that each part of the Registration Statement, when such part
became effective, and the Prospectus, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately responsive, in
all material respects relevant to the offering of the Securities, to
the requirements of the 1933 Act and the applicable 1933 Act
Regulations; and nothing that came to their attention in the course of
their review has caused them to believe that, insofar as relevant to
the offering of the Securities, any part of the Registration Statement,
when such part became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus
Supplement, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; also, nothing that has come to such
counsel's attention in the course of certain procedures (as described
in such opinion) has caused such counsel to believe that the
Prospectus, as of the date and time of delivery of such letter,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that such opinion may state that the
limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration
process are such that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except for those made
under the captions "Description of Shares of Beneficial Interest" and
"Supplemental Description of Shares of Beneficial Interest" in the
Prospectus Supplement insofar as they relate to the provisions of
documents therein described, and that such does not express any opinion
or belief as to the financial statements or schedules or other
financial data derived from accounting records contained in the
Registration Statement or the Prospectus; and
(ii) Such counsel does not know of any litigation or
governmental proceeding instituted or threatened against the Company or
any of its consolidated subsidiaries that would be required to be
disclosed in the Prospectus and is not so disclosed; and such counsel
does not know of any documents that are required to be filed as
exhibits to the Registration
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Statement and are not so filed or of any documents that are required to
be summarized in the Prospectus that are not so summarized.
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Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company is a real estate investment trust duly
organized and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate
its properties and to conduct its business substantially as described
in the Prospectus and to enter into and perform its obligations under
this Agreement;
(iii) The Company has an authorized capitalization as set
forth in the Prospectus under the caption" Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement or pursuant to
the terms of reservations, agreements or employee benefit plans,
including, without limitation, the Vornado Realty Trust Omnibus Share
Plan, dividend reinvestment plans and employee or director stock option
plans, or the exercise of options outstanding on the date hereof, and
in each case referred to in the Prospects), and all of the issued and
outstanding shares of beneficial interest of the Company have been duly
and validly authorized and issued and are fully paid and nonassessable;
the issued and outstanding shares of beneficial interest of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable; and none of the outstanding shares of beneficial
interest of the Company was issued in violation of any preemptive
rights of any shareholder of the Company arising under Title 8 of the
Corporations and Associations Article of the Annotated Code of Maryland
("Title 8") or the Declaration of Trust or Bylaws of the Company;
(iv) The issuance and sale of the Securities to the
Underwriter pursuant to this Agreement have been duly authorized, and,
when issued and delivered by the Company against payment therefor
pursuant to this Agreement and the resolutions of the Board of Trustees
and the duly authorized committee thereof authorizing their issuance,
the Securities will be validly issued, fully paid and nonassessable;
(v) The information in the Prospectus under the heading
"Description of Shares of Beneficial Interest" in the Prospectus and
"Supplemental Description of Shares of Beneficial Interest" in the
Prospectus Supplement, to the extent that it constitutes matters of
Maryland law, summaries of legal matters, documents or proceedings or
legal conclusions, has been reviewed by such counsel and is correct in
all material respects;
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(vi) The Securities conform in all material respects as to
matters of Maryland law to the description thereof contained under the
caption "Description of Shares of Beneficial Interest" in the
Prospectus and "Supplemental Description of Shares of Beneficial
Interest" in the Prospectus Supplement and the form of certificate
evidencing the Securities is in due and proper form in accordance with
Title 8;
(vii) The issuance of the Securities is not subject to any
preemptive or similar rights arising under Title 8, the Declaration of
Trust or the Bylaws of the Company;
(viii) No authorization, approval, consent or order of any
court or governmental authority or agency of the State of Maryland is
required in connection with the offering, issuance or sale of the
Securities to the Underwriter, except such as may be required under the
1933 Act or the 1933 Act Regulations or securities laws or regulations
of any state or other jurisdiction;
(ix) This Agreement has been duly authorized by all necessary
trust action of the Company, executed and, so far as is known to us,
delivered by the Company;
(x) The execution and filing of Articles Supplementary
relating to the Securities (the "Articles Supplementary") have been
duly authorized by the Company and the Articles Supplementary have been
executed in accordance with Title 8 and have been filed with the SAT;
and
(xi) The execution, delivery and performance of this
Agreement, the consummation of the transactions contemplated herein
and the compliance by the Company with its obligations hereunder will
not result in any violation of (A) the provisions of the Amended and
Restated Declaration of Trust or Bylaws of the Company or (B) any
applicable Maryland law or administrative regulation or, to the best
knowledge of such counsel, administrative or court decree of the State
of Maryland, except with respect to clause (B), such violations as
would not have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, and subject, in the
case of clauses (A) and (B), to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
In giving these opinions, Ballard Spahr Andrews & Ingersoll,
LLP may state that such opinions are limited to the laws of the States
of Maryland and may rely (1) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company and (2) as to the qualification and good
standing of the Company or any of its subsidiaries in any other
jurisdiction, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
B-2
EXHIBIT C
Lehman Brothers Inc.
101 Hudson Street
Jersey City, NJ 07302
Re: Proposed Public Offering by Vornado Realty Trust
Dear Sirs:
The undersigned, a shareholder [and an officer and/or Trustee]
of Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), understands that Lehman Brothers Inc. ("Lehman Brothers") proposes
to enter into an Underwriting Agreement (the "Underwriting Agreement") with the
Company providing for the public offering of shares (the "Securities") of the
Company's Common Shares of Beneficial Interest, par value $0.04 per share (the
"Common Shares"). In recognition of the benefit that such an offering will
confer upon the undersigned, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with Lehman Brothers that, during a period of 30 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Lehman Brothers, directly or indirectly, offer, sell, contract to
sell or other wise dispose of any Common Shares or any securities convertible
into or redeemable, exchange able or exercisable for Common Shares, whether now
owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, except such
offers and sales made pursuant to Rule 144 of the rules and regulations of the
Commission under the Securities Act of 1933, as amended, and except that the
under signed 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.
Very truly yours,
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SCHEDULE C
Steven Roth
Michael D. Fascitelli
Interstate Properties
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