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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
PURCHASE AGREEMENT
April 26, 1995
To the Underwriters
to be named in the applicable
Pricing Agreement
supplemental hereto
Dear Sirs and Madams:
Vornado Realty Trust, a Maryland real estate investment trust
(the "Company"), proposes to issue and sell shares of its common shares of
beneficial interest, par value $.04 per share (the "Common Shares"), in one or
more offerings on the terms and conditions determined at the time of sale.
Whenever the Company determines to make an offering of Common Shares (the
"Offered Securities"), it will enter into an agreement substantially in the form
of Exhibit A hereto (the "Pricing Agreement") providing for the sale of such
Offered Securities to, and the purchase and offering thereof by, the underwriter
or underwriters named therein (the "Underwriters" or "you," which terms shall
include the underwriter or underwriters named therein whether acting alone in
the sale of Offered Securities or as members of an underwriting syndicate). The
Pricing Agreement relating to each offering of Offered Securities shall specify,
among other things, the number of Common Shares to be issued (the "Firm Offered
Securities"), and whether or not the Company has granted to the Underwriters an
option to purchase additional Shares as provided in Section 2(b) hereof (the
"Additional Offered Securities" and together with the Firm Offered Securities,
the "Offered Securities"), and if granted, the maximum number of Additional
Offered Securities that the Underwriters have an option to purchase. In
addition, the Pricing Agreement shall specify the name or names of the
Underwriters participating in such offering (subject to substitution as provided
in Section 10 hereof), the number of Firm Offered Securities and Additional
Offered Securities, if any, which each of the Underwriters severally agrees to
purchase, the name or names of the Underwriters acting as manager or co-managers
in connection with such offerings, if any (the "Representatives,"
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which term shall include each Underwriter in the event that there shall be no
manager or co-managers), the price per share at which the Offered Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price and the date, time and place of delivery and payment for such
Offered Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52441), 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 statement has been declared effective by the
Commission. As provided in Section 3(a), a prospectus supplement reflecting the
terms of the Offered Securities, the terms of the offering thereof and the other
matters set forth therein has been prepared or will be prepared and will be
filed pursuant to Rule 424 under the 1933 Act. Such prospectus supplement, in
the form first filed after the date hereof pursuant to Rule 424, is herein
referred to as the "Prospectus Supplement." Such registration statement, as
amended at the date hereof, including all documents incorporated or deemed to be
incorporated by reference therein and the exhibits thereto, is herein referred
to as the "Registration Statement" and the basic prospectus included therein and
relating to all offerings of securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein referred to as the
"Prospectus," except that if such basic prospectus is amended or supplemented on
or prior to the date on which the Prospectus Supplement is first filed pursuant
to Rule 424, the term "Prospectus" shall refer to the basic prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement, in
either case including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as
follows:
(i) At the time the Registration Statement (or the most recent
post-effective amendment thereto, if any) became effective, the Registration
Statement complied in all material respects with the requirements of the 1933
Act and the rules and regulations of the Commission thereunder (the "1933 Act
Regulations"), and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; on the date hereof and at the
Closing Time (as defined below), the Prospectus, and any amendments and
supplements thereto, comply and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and none of such
documents includes or will include an untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein
or necessary to make the statements
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therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter
through the Representatives, expressly for use in the Registration Statement
or Prospectus.
(ii) The accountants who certified the financial statements and
financial statement schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(iii) The financial statements and the financial statement
schedules included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated, the results of their
operations for the periods specified and the information required to be
stated therein; and said financial statements and financial statement
schedules have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved. The
selected financial data included or incorporated by reference in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the consolidated financial
statements included or incorporated by reference in the Registration
Statement. Any pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus comply
in all material respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and present fairly the information shown
therein; the pro forma adjustments, if any, have been properly applied to the
historical amounts in the compilation of such statements, and in the opinion
of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(iv) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
or contemplated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the
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Company and its subsidiaries considered as one enterprise, and (C) except (i)
regular quarterly dividends declared, paid or made on the Company's common
shares of beneficial interest, (ii) dividends declared, paid or made in
accordance with the terms of any series of preferred shares of beneficial
interest of the Company and (iii) as disclosed in the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its shares of beneficial interest.
(v) The Company has been duly organized and is validly existing
as a real estate investment trust in good standing under the laws of the
State of Maryland with power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the Pricing
Agreement; and the Company is duly qualified as a foreign organization to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(vi) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for security interests granted in respect of indebtedness of the
Company or any of its subsidiaries as referred to in the Prospectus.
(vii) The authorized, issued and outstanding shares of beneficial
interest of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement or
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pursuant to the terms of reservations, agreements or employee benefit plans,
including, without limitation, the Vornado Realty Trust Omnibus Share Plan,
dividend reinvestment plans and employee or director stock option plans, or
the exercise of options outstanding on the date hereof or on the date of the
applicable Pricing Agreement, and in each case referred to in the
Prospectus); the issued and outstanding shares of beneficial interest of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable; and the Common Shares conform to all statements relating
thereto in the Prospectus.
(viii) Neither the Company nor any of its subsidiaries is (x) in
violation of its charter documents or by-laws or (y) in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which either the Company or any of its
subsidiaries is a party or by which any of them may be bound, or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, which default would have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and the issue and sale of the Offered Securities, the execution,
delivery and performance of this Agreement and the applicable Pricing
Agreement and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary trust action and,
except as would not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or
affected, or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation of
the provisions of the Amended and Restated Declaration of Trust or Bylaws of
the Company or any applicable law, administrative regulation or
administrative or court decree.
(ix) Other than as set forth in the Prospectus, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending (in which service of process has been
received by an employee of the Company), or, to the knowledge of the Company,
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threatened, against or affecting the Company or any of its subsidiaries,
which is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which is reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which is reasonably likely to have a
material adverse effect on the properties or assets thereof or the
consummation of the transactions contemplated by this Agreement or the
applicable Pricing Agreement; all pending legal or governmental proceedings
to which the Company or any of its subsidiaries is a party or of which any of
their properties or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, are considered in the aggregate not material; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Securities hereunder, except such
as may be required under the 1933 Act, the 1933 Act Regulations or state
securities laws.
(xi) The Company and its subsidiaries each possess such
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business
now operated by them, except where the failure to possess such certificates,
authorities or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xii) This Agreement has been, and, when signed, the applicable
Pricing Agreement relating to the Offered Securities will be, duly executed
and delivered by the Company.
(xiii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
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1933 Act ("Item 12") and Rule 412 of the 1933 Act Regulations ("Rule 412"),
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other information
in the Prospectus, do not and will not, on the date hereof and at the Closing
Time, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(xiv) Except as otherwise disclosed in the Prospectus, and except
as would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise: (i) each of the
Company and its subsidiaries has good and marketable title to all properties
and assets described in the Prospectus as owned by such party, in each case
free of all liens, encumbrances and defects; (ii) all of the leases under
which the Company or any of its subsidiaries holds or uses real property or
assets as a lessee are in full force and effect, and neither the Company nor
any of its subsidiaries is in material default in respect of any of the terms
or provisions of any of such leases and no claim has been asserted by anyone
adverse to any such party's rights as lessee under any of such leases, or
affecting or questioning any such party's right to the continued possession
or use of the leased property or assets under any such leases; (iii) all
liens, charges, encumbrances, claims, or restrictions on or affecting the
properties and assets of the Company or any of its subsidiaries that are
required to be disclosed in the Prospectus are disclosed therein; (iv)
neither the Company, any of its subsidiaries nor, to the knowledge of the
Company, any lessee of any portion of any such party's properties is in
default under any of the leases pursuant to which the Company or any of its
subsidiaries leases its properties and neither the Company nor any of its
subsidiaries knows of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such
leases; (v) no tenant under any lease pursuant to which the Company or any of
its subsidiaries leases its properties has an option or right of first
refusal to purchase the premises leased thereunder; (vi) to the best of its
knowledge, each of the properties of the Company or any of its subsidiaries
complies with all applicable codes and zoning laws and regulations; and (vii)
neither the Company nor any of its subsidiaries has knowledge of any pending
or threatened condemnation, zoning change or other proceeding or action that
will in any manner affect the size or use of, improvements or construction on
or access to the properties of the Company or any of its subsidiaries.
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(xv) Each of the Company and its subsidiaries has title insurance
on all properties and assets described in the Prospectus as owned by such
party in an amount at least equal to the cost of acquisition of such property
or assets, except where the failure to maintain such title insurance would
not have a material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xvi) The mortgage and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible and such mortgages
and deeds of trust are not cross-defaulted or cross-collateralized to any
property not owned by the Company or any of its subsidiaries.
(xvii) Except as specifically disclosed in the Prospectus, or as
is not reasonably likely to have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise:
(a) each of the Company and its subsidiaries is in
compliance with all applicable laws relating to pollution or the discharge of
materials into the environment, including common law relating to damage to
property or injury to persons ("Environmental Laws"). Each of the Company and
its subsidiaries currently holds all governmental authorizations required
under Environmental Laws in order to conduct their businesses as described in
the Prospectus, and none of the above has any basis to believe that any such
governmental authorization may be modified, suspended or revoked, or cannot
be renewed in the ordinary course of business;
(b) there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release, or disposal of any material
(including radiation and noise), that could form the basis of any claim
(whether by a governmental authority or other person or entity) under
Environmental Laws for cleanup costs, damages, penalties, fines, or
otherwise, against any of the Company or its subsidiaries, or against any
person or entity whose liability for such claim may have been retained by any
of the Company or its subsidiaries, whether by contract or law; and
(c) the Company and its subsidiaries have fully disclosed
to the Underwriters and their counsel all studies, reports, assessments,
audits and other information in their possession or control relating to any
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pollution or release, threatened release or disposal of materials regulated
under Environmental Laws on, at, under, from or transported from any of their
currently or formerly owned, leased or operated properties, including,
without limitation, all information relating to underground storage tanks and
asbestos containing materials.
(xviii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Shares.
(xix) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
statutes, and all regulations promulgated thereunder relating to issuers
doing business with Cuba.
(xx) Neither the Company nor any of its subsidiaries is subject
to registration as an "investment company" under the Investment Company Act
of 1940.
(b) Any certificate signed by any officer of the Company on behalf of
the Company and delivered to the Representatives or to counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby on the date of such certificate.
SECTION 2. Purchase and Sale.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth (except as
may otherwise be specified in the Pricing Agreement), the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at the purchase price set
forth in the applicable Pricing Agreement, the number of Firm Offered Securities
set forth opposite the name of such Underwriter in Schedule I to the applicable
Pricing Agreement, plus any additional number of Firm Offered Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) In addition, the Company may specify in the Pricing Agreement
applicable to the Offered Securities that the Company thereby grants an option
to the Underwriters, severally and not jointly, to purchase up to the number of
Additional Offered Securities set forth in such Pricing Agreement. The option
thereby granted shall expire at such time as is set forth in the applicable
Pricing Agreement, and may be exercised in whole or in
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part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and sale of the Firm Offered
Securities upon notice by the Representatives to the Company setting forth the
number of Additional Offered Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Additional Offered Securities. Any such time and date of delivery (each
such date and time being herein called the "Option Closing Time") shall be
determined by the Representatives, but shall not be later than five full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined, unless otherwise agreed by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Additional Offered Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Additional Offered Securities then being purchased which the number of Firm
Offered Securities set forth in Schedule I to the Pricing Agreement opposite the
name of such Underwriter bears to the total number of Firm Offered Securities
(except as otherwise provided in the Pricing Agreement), subject in each case to
such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Offered Securities shall be made at the date, time and location
specified in the applicable Pricing Agreement relating to the Offered
Securities, or at such other date, time or location as shall be agreed upon by
the Representatives and the Company or as shall otherwise be provided in Section
10 (each such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the Additional
Offered Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, the Additional Offered Securities
shall be made at the date, time and location as shall be agreed upon by the
Representatives and the Company. Unless otherwise specified in the applicable
Pricing Agreement relating to the Offered Securities, payment shall be made to
the Company by certified or official bank check or checks in New York Clearing
House funds or similar next day funds payable to the order of the Company,
against delivery to the Representatives for the respective accounts of the
Underwriters of the Firm Offered Securities and any Additional Offered
Securities to be purchased by them. Certificates for the Firm Offered Securities
and the Additional Offered Securities, if any, shall be in such denominations
and registered in such names as the Representatives may request in writing at
least two business days before the Closing Time or the Option Closing Time, as
the case may be. The certificates for such Offered Securities will be made
available for examination and packaging by the Representatives not later than
10:00 A.M. on the last business day prior to the Closing Time or the Option
Closing Time, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
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(a) If requested by the Representatives in connection with the
offering of the Offered Securities, the Company will prepare a preliminary
prospectus supplement containing such information as the Representatives and the
Company deem appropriate, and, following the execution of this Agreement, the
Company will prepare a Prospectus Supplement that complies with the 1933 Act and
the 1933 Act Regulations and that sets forth the number of the Offered
Securities and their terms, the name of each Underwriter participating in the
offering and the number of the Offered Securities that each severally has agreed
to purchase, the name of each Underwriter, if any, acting as representative of
the Underwriters in connection with the offering, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, any selling concession and reallowance, and such other
information as the Representatives deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule 424
under the 1933 Act and will furnish to the Underwriters as many copies of any
preliminary prospectus supplement and the Prospectus as the Representatives
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission such amendment or supplement as may be necessary to correct such
untrue statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters as many copies of such amendment or supplement as they shall
reasonably request.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the Company
will inform the Representatives of its intention to file any amendment to the
Registration Statement, any supplement to the Prospectus or any document that
would as a result thereof be incorporated by reference in the Prospectus; will
furnish the Representatives with copies of any such amendment, supplement or
other document a reasonable time in advance of filing; and will not file any
such amendment, supplement or other document in a form to which the
Representatives or counsel for the Underwriters shall reasonably object.
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(d) During the period when the Prospectus is required by the 1933 Act
or the 1934 Act to be delivered in connection with sales of the Offered
Securities, the Company will notify the Representatives immediately, and confirm
the notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of any
supplement to the Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus, (iii) the receipt of any comments
from the Commission with respect to the Registration Statement, the Prospectus
or the Prospectus Supplement, (iv) any request by the Commission for any
amendment to the Registration Statement or any supplement to the Prospectus or
for additional information relating thereto or to any document incorporated by
reference in the Prospectus and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, the suspension
of the qualification of the Offered Securities for offering or sale in any
jurisdiction, or the institution or threatening of any proceeding for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order suspending such qualification
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(e) The Company has furnished or will furnish to the Representatives
as many signed copies of the Registration Statement (as originally filed) and of
all amendments thereto, whether filed before or after the Registration Statement
became effective, copies of all exhibits and documents filed therewith or
incorporated by reference therein (through the end of the period when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Offered Securities) and signed copies of all
consents and certificates of experts, as the Representatives may reasonably
request, and has furnished or will furnish to the Representatives, upon request,
for each of the Underwriters, one conformed copy of the Registration Statement
(as originally filed) and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits).
(f) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Offered Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may designate; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Offered Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be
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required for the distribution of the Offered Securities, provided that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction where it is not so qualified.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earning statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering (i) a period of 12 months
beginning after the effective date of the Registration Statement and covering a
period of 12 months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first day of the
Company's fiscal quarter next following such respective effective dates and (ii)
a period of 12 months beginning after the date of the applicable Pricing
Agreement but not later than the first day of the Company's fiscal quarter next
following the date of the applicable Pricing Agreement.
(i) For a period of five years after the Closing Time, the Company
will furnish to the Representatives and, upon request, to each Underwriter,
copies of all annual reports, quarterly reports and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may
be designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company to its shareholders or security
holders generally.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) If and to the extent specified in the applicable Pricing
Agreement, the Company will use its best efforts to effect the listing of the
Offered Securities on the New York Stock Exchange or other securities market and
registration under the 1934 Act.
(l) During any period specified in the applicable Pricing Agreement
for such Offered Securities, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, sell, offer to sell,
grant any option for the sale of, contract to sell or otherwise transfer or
dispose of, or announce its intent to take any such action, any Common Shares or
any security convertible or exchangeable for Common Shares, except for Common
Shares issued pursuant to agreements or plans or the exercise of options
referred to in Section 1(a)(vii) hereof.
SECTION 4. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement and the applicable
Pricing Agreement relating to the Offered Securities, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, of each preliminary prospectus
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supplement and Prospectus and any amendments or supplements thereto, (ii) the
preparation and printing of this Agreement and the Pricing Agreement, (iii) the
cost of preparing, issuing and delivering certificates representing the Common
Shares, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Offered Securities under state
securities laws, including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation and printing of the Blue Sky Survey and any Legal Investment Survey
and delivery to the Underwriters of copies of the Blue Sky Survey and any Legal
Investment Survey, (vi) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of each preliminary prospectus supplement, and of the Prospectus and any
amendments or supplements thereto, (vii) any fees of the National Association of
Securities Dealers, Inc., (viii) the cost and charges of any transfer agent or
registrar; and (ix) the fees and expenses, if any, incurred in connection with
the listing of the Offered Securities on the New York Stock Exchange or other
securities market, if applicable, and the registration of the Offered Securities
with the Commission, if applicable.
If the applicable Pricing Agreement relating to the Offered Securities
(which includes the terms of this Agreement as incorporated by reference
therein) is terminated by the Representatives in accordance with the provisions
of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. Except as otherwise
provided in the applicable Pricing Agreement, the obligations of the
Underwriters to purchase and pay for any Offered Securities are subject to the
accuracy of the representations and warranties of the Company contained herein
or in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel for the
Underwriters.
(b) At the applicable Closing Time, the Representatives shall have
received:
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(1) The opinion, dated as of the Closing Time, of Sullivan & Cromwell,
counsel for the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company is a real estate investment trust duly organized
and existing under the laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation of Maryland.
(ii) To the best of such counsel's knowledge, the Company is not
required to qualify to do business in the State of New York.
(iii) The Company has the power and authority to own, lease and
operate its properties and to conduct its business substantially as described
in the Prospectus and the Company has the power and authority to enter into
and perform its obligations under this Agreement and the Pricing Agreement
relating to the Offered Securities.
(iv) The issuance and sale of the Offered Securities to the
Underwriters pursuant to this Agreement and the applicable Pricing Agreement
have been duly authorized and, when issued and delivered by the Company
pursuant to this Agreement against payment pursuant to this Agreement and the
Pricing Agreement, the Offered Securities will be validly issued, fully paid
and nonassessable.
(v) This Agreement and the applicable Pricing Agreement have been
duly authorized, executed and delivered by the Company.
(vi) The Registration Statement has been declared effective under
the 1933 Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending under
the 1933 Act.
(vii) Such counsel does not know of any litigation instituted or
threatened against the Company or any of its subsidiaries that would be
required to be disclosed in the Prospectus and is not so disclosed.
(viii) Such counsel does not know of any documents that are
required to be filed as exhibits to the Registration Statement and are not so
filed or of any documents that are required to be summarized in the
Prospectus and are not so summarized.
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(ix) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the federal laws
of the United States and the laws of the State of New York for the issuance,
sale and delivery of the Offered Securities by the Company to the
Underwriters have been obtained or made; provided, however, that for purposes
of this paragraph (ix), such counsel need not express any opinion with
respect to state securities laws.
(x) The execution and delivery by the Company of this Agreement
and the applicable Pricing Agreement do not, and the issuance of the Offered
Securities and the sale of the Offered Securities by the Company to the
Underwriters pursuant to this Agreement and the applicable Pricing Agreement
and the performance by the Company of its obligations under this Agreement
and the applicable Pricing Agreement will not (A) violate the Company's
Amended and Restated Declaration of Trust or Bylaws or the certificate or
articles of incorporation or by-laws of any of its subsidiaries, (B) violate
any court order or administrative decree known to such counsel or any federal
law of the United States or law of the State of New York applicable to the
Company, or (C) result in a default under or breach of any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument known to
such counsel to which the Company or any subsidiary is a party or by which
any of them may be bound, or to which any of their property is subject,
subject, in the case of clauses (A), (B) and (C) of this paragraph (x), to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; provided, however, that for purposes
of this paragraph (x), such counsel need not express any opinion with respect
to federal or state securities laws, other antifraud laws or fraudulent
transfer laws.
(xi) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended.
(xii) The information in the Prospectus under the heading
"Certain Federal Income Tax Considerations," to the extent that it
constitutes matters of law or legal conclusions, has been reviewed by such
counsel and is correct in all material respects; provided that such opinion
may be rendered in reliance upon representations made by third parties and,
as to the qualification of Alexander's, Inc. as a real estate investment
trust for federal income tax purposes, an opinion of Shearman & Sterling.
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(xiii) On the basis of the information which was reviewed in the
course of the performance of the services referred to in their opinion
considered in the light of their understanding of the applicable law
(including the requirements of Form S-3 and the character of the prospectus
contemplated thereby) and the experience they have gained through their
practice under the 1933 Act, such counsel are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
the date of the Prospectus, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and
the 1933 Act Regulations; and that nothing which has come to their attention
in the course of their review has caused them to believe that the
Registration Statement, as of its effective date (other than the financial
statements and schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date (other than the financial
statements and schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion), contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; also, nothing that
has come to such counsel's attention in the course of certain procedures (as
described in such opinion) has caused such counsel to believe that the
Prospectus, as of the date and time of delivery of such opinion (other than
the financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need express no opinion),
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that such opinion may state that the limitations inherent in the
independent verification of factual matters and the character of
determinations involved in the registration process are such that such
counsel do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except as otherwise specifically referred to in paragraph (xii)
above and except for those made under the caption "Description of Common
Shares" in the Prospectus insofar as they relate to the provisions of
documents therein described, and that such counsel need not express any
opinion or belief as to the financial statements and schedules or other
financial and statistical data contained in the Registration Statement or the
Prospectus.
In giving these opinions, 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
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jurisdiction other than the federal laws of the United States of America and may
rely (1) as to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company and (2) as to the
qualification and good standing of the Company or any of its subsidiaries, upon
opinions of counsel in such other jurisdictions and certificates of appropriate
government officials.
(2) The opinion, dated as of the Closing Time, of Ballard Spahr
Andrews & Ingersoll, special Maryland counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a real estate investment trust duly organized
and existing under the laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation of Maryland.
(ii) The Company has the power and authority to own, lease and
operate each of its properties and to conduct each of its businesses
substantially as described in the Prospectus and the Company has the power
and authority to enter into and perform its obligations under this Agreement
and the applicable Pricing Agreement.
(iii) The authorized, issued and outstanding common shares of
beneficial interest of the Company are as set forth in the Prospectus under
"Capitalization"; the issued and outstanding common shares of beneficial
interest of the Company have been duly authorized and validly issued and are
fully paid and, except as otherwise described in the Prospectus under the
caption "Description of Common Shares," nonassessable; and none of the
outstanding common shares of beneficial interest of the Company was issued in
violation of any preemptive rights of any shareholder of the Company.
(iv) The information in the Prospectus under the headings
"Description of Common Shares" and "Description of Preferred Shares," to the
extent that it constitutes matters of law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(v) The Offered Securities conform in all material respects as to
legal matters to the description thereof contained in the Prospectus and the
form of certificate used to evidence the Common Shares is in due and proper
form in accordance with applicable statutory requirements.
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(vi) The issuance of the Offered Securities is not subject to
preemptive or other similar rights arising by operation of law, the Amended
and Restated Declaration of Trust or the Bylaws of the Company or, to the
best of such counsel's knowledge, otherwise.
(vii) No authorization, approval, consent or order of any court
or governmental authority or agency of the State of Maryland is required in
connection with the offering, issuance or sale of the Offered Securities to
the Underwriters, except such as may be required under the 1933 Act or the
1933 Act Regulations or securities laws of any state or other jurisdiction.
(viii) The execution, delivery and performance of this Agreement
and the applicable Pricing Agreement, the consummation of the transactions
contemplated herein and therein and the compliance by the Company with its
obligations hereunder and thereunder will not result in any violation of (A)
the provisions of the Amended and Restated Declaration of Trust or Bylaws of
the Company or the charter documents or bylaws of any subsidiary of the
Company incorporated in New Jersey, Delaware, Maryland and Pennsylvania (as
appropriately identified on an exhibit to such opinion or otherwise), or (B)
any applicable law or administrative regulation or, to the best knowledge of
such counsel, administrative or court decree, except with respect to clause
(B) of this paragraph (viii), such violations as would not have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, and subject, in the case of clauses (A) and (B)
of this paragraph (viii), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
In giving these opinions, 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.
(3) The favorable opinion, dated as of the Closing Time, of Skadden,
Arps, Slate, Meagher & Flom, counsel for the Underwriters, with respect to
the matters set forth in paragraphs (i) and (iii)-(vi), inclusive, of
subsection (b)(1) of this Section.
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In giving its opinion, Skadden, Arps, Slate, Meagher & Flom shall
additionally state that nothing has come to their attention that would lead them
to believe that the Registration Statement (except for financial statements and
schedules and other financial and statistical data included or incorporated by
reference therein or excluded therefrom, as to which counsel need make no
statement), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules and other financial
and statistical data included or incorporated by reference therein or omitted
therefrom, as to which counsel need make no statement), as of its date and at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In giving these opinions, Skadden, Arps, Slate, Meagher & Flom may rely (1)
as to all matters of fact, upon certificates and written statements of officers
and employees of and accountants for the Company and (2) as to the qualification
and good standing of the Company, upon opinions of counsel in such jurisdictions
and certificates of appropriate government officials.
(c) At the applicable Closing Time there shall not have been, since
the date of the applicable Pricing Agreement or since the date as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chief Executive Officer
of the Company and of the Chief Financial Officer of the Company, dated as of
the Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of the
applicable Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the applicable Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission. As used in this
Section 5(c), the term "Prospectus" means the Prospectus in the form first used
to confirm sales of the Offered Securities.
(d) At the date of the applicable Pricing Agreement relating to
Offered Securities, the Representatives shall have received from Deloitte &
Touche LLP a letter dated the effective date of the Registration Statement or
the date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective date, in form
and substance satisfactory to the Representatives, to the effect that (i) they
are independent public accountants with
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respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the financial
statements and financial statement schedules included or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations and the 1934 Act and the 1934 Act Regulations; (iii) based
upon limited procedures set forth in detail in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited financial
statements and financial statement schedules of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations or are not presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited financial statements included or incorporated by reference
in the Registration Statement, (B) the unaudited amounts of property rentals,
total revenue, income from continuing operations before extraordinary item and
income per share from continuing operations set forth under "Selected
Consolidated Financial Data" in the Prospectus were not determined on a basis
substantially consistent with that used in determining the corresponding amounts
in the audited financial statements included or incorporated by reference in the
Registration Statement, or (C) at a specified date not more than five days prior
to the date of the applicable Pricing Agreement relating to the Offered
Securities, there has been any change in the issued and outstanding shares of
beneficial interest of the Company or any increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in consolidated net
assets as compared with the amounts shown in the most recent balance sheet
included or incorporated by reference in the Registration Statement or, during
the period from the date of the most recent balance sheet included or
incorporated by reference in the Registration Statement to a specified date not
more than five days prior to the date of the applicable Pricing Agreement
relating to the Offered Securities, there were any decreases, as compared with
the corresponding period in the preceding year, in property rentals, total
revenue, income from continuing operations before extraordinary item, income per
share from continuing operations or Funds from Operations of the Company and its
subsidiaries, except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the examination referred to in their opinion and
the limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus and which
are specified by the Representatives, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified in
such letter.
(e) At the applicable Closing Time, the Representatives shall have
received from Deloitte & Touche LLP a letter, dated as of such Closing Time, to
the effect that
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they reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the specified date referred to shall be a date
not more than five days prior to such Closing Time.
(f) If and to the extent specified in the applicable Pricing Agreement
relating to the Offered Securities, at the applicable Closing Time, the Offered
Securities shall have been approved for listing on the New York Stock Exchange
or other securities market, subject to notice of issuance.
(g) On or before the applicable Closing Time, the Company shall have
received and provided to the Representatives copies of valid and binding
agreements duly executed by the persons or entities named in the applicable
Pricing Agreement, pursuant to which each such person or entity shall agree not
to, without the prior written consent of the Representatives, sell, offer to
sell, grant any option for the sale of, contract to sell or otherwise transfer
or dispose of or announce its intent to take any such action, any Common Shares
or any security convertible or exchangeable for Common Shares, for the period
specified in the applicable Pricing Agreement.
(h) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents, certificates and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
In the event that the Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Additional Offered
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished hereunder shall be true and
correct as of each Option Closing Time and, at the Option Closing Time, the
Representatives shall have received the certificates and opinions, dated the
relevant Option Closing Time, referred to in this Section 5.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Pricing Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof
and pursuant to Sections 6 and 7 hereof.
SECTION 6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
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(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying party or parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount set forth in the
Pricing Agreement relating to the Offered Securities bears to the public
offering price of such Offered Securities and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, indemnities and agreements contained in this
Agreement and any Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Company, or any person who controls any Underwriter or the
Company within the meaning of Section 15 of the 1933 Act, and shall survive
delivery of and payment for the Offered Securities.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable Pricing Agreement
(including this Agreement as incorporated by reference therein), by notice to
the Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities, or (iii) if trading in any securities of the
Company has been suspended by the Commission, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal or New York authorities. As used in this Section 9(a), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof and pursuant to Sections 6 and 7 hereof.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Firm Offered
Securities that it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Offered Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Offered Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such
24-hour period, then:
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(a) if the number of Defaulted Offered Securities does not exceed 10%
of the number of Firm Offered Securities to be purchased pursuant to the Pricing
Agreement relating to the Offered Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
under such Pricing Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Offered Securities exceeds 10% of the
number of Firm Offered Securities to be purchased pursuant to the Pricing
Agreement relating to the Offered Securities, such Pricing Agreement (including
this Agreement as incorporated by reference therein) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
such Pricing Agreement (including this Agreement as incorporated by reference
therein), either the Representatives or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in the applicable Pricing Agreement;
notices to the Company shall be directed to it at Park 80 West, Plaza II, Saddle
Brook, NJ 07662, attention of Secretary.
SECTION 12. Parties. This Agreement and each applicable Pricing Agreement
shall each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
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SECTION 13. Governing Law and Time. This Agreement and each applicable
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Except as otherwise set forth herein, specified times of day refer
to New York time.
-----------------------
Very truly yours,
VORNADO REALTY TRUST
By: /s/ Steven Roth
---------------------------
Name: Steven Roth
Title: Chairman and Chief
Executive Officer
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Exhibit A
to
Purchase Agreement
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
PRICING AGREEMENT
_____ __, 199_
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Purchase Agreement, dated _____ __, 1995 (the "Purchase Agreement"), to
issue and sell to [_________ (the "Underwriter(s)")] the several Underwriters
listed on Schedule I hereto, for whom _________________ is/are acting as
representatives (the "Representa-
A-1
29
tives"), the Securities specified herein (the "Offered Securities"). This
agreement is the Pricing Agreement relating to the Offered Securities referred
to in the Purchase Agreement.
Each of the provisions of the Purchase Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty that refers to the Prospectus in
Section 1 of the Purchase Agreement shall be deemed to be a representation or
warranty as of the date of the Purchase Agreement in relation to the Prospectus
(as therein defined), and also a representation and warranty as of the date of
this Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Offered Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Purchase Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Purchase Agreement
are used herein as therein defined. The address of the Underwriter(s) referred
to in Section 11 of the Purchase Agreement is _______________,
Attention: ______________________.
An amendment to the Registration Statement, or the Prospectus Supplement,
as the case may be, relating to the Offered Securities, in the form heretofore
delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Purchase
Agreement incorporated herein by reference, the Company agrees to issue and to
sell to the Underwriter, and the Underwriter agree to purchase from the
Company, at the time and place and at the purchase price to the Underwriter set
forth herein, the number of Offered Securities.
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Additional Offered Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to herein for the sole purpose of covering over-allotments in
the sale of the Firm Offered Securities. Any such election to purchase
Additional Offered Securities may be exercised by notice from the
Representatives to the Company specifying the number of Additional Offered
Securities to be purchased and the date on which such Additional Offered
Securities are to be delivered.]
Pursuant to Section 2 of the Purchase Agreement, the Company agrees with
the Underwriters as follows:
A-2
30
1. Total number of Offered Securities to be issued:
Firm Shares:
Additional Shares (maximum):
2. Initial public offering price per share:
3. Purchase price to be paid by the Underwriters:
4. Specified Funds for payment of the purchase price:
5. Closing date, time and location:
6. Listing:
7. Names and addresses of Representatives:
8. Other Requirements:
This Agreement shall be governed by the laws of the State of New York.
-------------
If the foregoing is in accordance with your understanding of the agreement
between you and the Company, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts (including the
provisions of the
A-3
31
Purchase Agreement incorporated by reference herein) shall be a binding
agreement between the Underwriter and the Company in accordance with its terms
and the terms of the Purchase Agreement.
Very truly yours,
VORNADO REALTY TRUST
By:
---------------------------
Name:
Title:
Accepted as of the date first above written:
UNDERWRITER(S) OR
REPRESENTATIVE(S)
on behalf of the several Underwriters
named in Schedule I hereto
By:
--------------------------
Name:
Title:
A-4
32
Schedule I
to
Pricing Agreement
VORNADO REALTY TRUST
Common Shares of Beneficial Interest
[List Underwriter or Underwriters, indicating
which, if any, are acting as the Representative
or Representatives of the Underwriters and number
of shares being purchased.]