VORNADO REALTY TRUST
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported):
August 10, 2005
VORNADO REALTY TRUST
(Exact Name of Registrant as Specified in Charter)
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Maryland
(State or Other
Jurisdiction of
Incorporation)
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No. 001-11954
(Commission
File Number)
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No. 22-1657560
(IRS Employer
Identification No.) |
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888 Seventh Avenue
New York, New York
(Address of Principal Executive offices)
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10019
(Zip Code) |
Registrants telephone number, including area code: (212) 894-7000
Former name or former address, if changed since last report: N/A
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instructions
A.2.):
o Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 8.01 Other Events.
Public Offering of 9,000,000 Common Shares of Beneficial Interest by Vornado Realty Trust
On August 10, 2005, Vornado Realty Trust (the Company) issued and sold 9,000,000 of its common
shares of beneficial interest, par value $0.04 per share, at $86.75 per share in an underwritten
public offering pursuant to an effective registration statement. The Company has granted to
Citigroup Global Markets Inc., the underwriter of the public offering, an option for 30 days from
August 4, 2005 to purchase up to an additional 1,350,000 common shares to cover over-allotments. A
copy of the underwriting agreement is attached hereto as Exhibit 1.1 and incorporated herein by
reference. The press release issued in connection with this underwritten transaction is attached
hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
1.1 |
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Underwriting Agreement, dated August 4, 2005, among Vornado Realty Trust, Vornado Realty L.P.
and Citigroup Global Markets Inc. |
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99.1 |
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Press Release, dated August 4, 2005 |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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VORNADO REALTY TRUST
(Registrant)
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By: |
/s/ Joseph Macnow |
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Name: |
Joseph Macnow |
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Title: |
Executive Vice President
- - Finance and Administration and
Chief Financial Officer |
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Date: August 10, 2005
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EXHIBIT INDEX
1.1 |
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Underwriting Agreement, dated August 4, 2005, among Vornado Realty Trust, Vornado Realty L.P.
and Citigroup Global Markets Inc. |
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99.1 |
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Press Release, dated August 4, 2005 |
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EXHIBIT 1.1
Exhibit 1.1
EXECUTION VERSION
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
9,000,000 Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
Dated: August 4, 2005
TABLE OF CONTENTS
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Underwriting Agreement |
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1 |
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SECTION 1. Representations and Warranties |
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2 |
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(a) |
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Representations and Warranties by the Company |
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2 |
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(i) Incorporated Documents |
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2 |
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(ii) Compliance with Registration Requirements |
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3 |
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(iii) Form S-3 Eligibility |
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3 |
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(iv) No Material Adverse Change in Business |
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3 |
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(v) Good Standing of the Company |
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3 |
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(vi) Qualification as a REIT |
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3 |
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(vii) Good Standing of the Operating Partnership |
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(viii) Good Standing of Subsidiaries |
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4 |
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(ix) Capitalization |
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4 |
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(x) Authorization and Description of the Common Shares |
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4 |
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(xi) Absence of Conflicts and Defaults |
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5 |
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(xii) Authorization of this Underwriting Agreement |
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5 |
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(xiii) Absence of Proceedings |
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(xiv) No Violations or Defaults |
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(xv) Accuracy of Certain Descriptions |
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6 |
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(xvi) Investment Company Act |
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6 |
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(xvii) Independent Public Accountants |
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6 |
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(xviii) Financial Statements |
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6 |
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(xix) Title to Property |
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(xx) Environmental Laws |
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(xxi) No Stabilizing Actions |
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(xxii) No Fiduciary Duty |
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(b) |
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Officers Certificates |
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8 |
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SECTION 2. Sale and Delivery to the Underwriter; Closing |
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(a) |
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Initial Securities |
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(b) |
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Option Securities |
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(c) |
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Payment |
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(d) |
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Denominations; Registration |
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SECTION 3. Covenants of the Company |
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(a) |
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Delivery of Registration Statements |
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9 |
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(b) |
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Delivery of Prospectus |
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10 |
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(c) |
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Continued Compliance with Securities Laws |
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10 |
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(d) |
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Rule 158 |
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10 |
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(e) |
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Use of Proceeds |
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(f) |
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Listing |
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11 |
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(g) |
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Restriction on Sale of Securities |
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11 |
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SECTION 4. Payment of Expenses |
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11 |
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(a) |
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Expenses |
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(b) |
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Termination of Agreement |
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SECTION 5. Conditions of Underwriters Obligations |
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(a) |
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Effectiveness of Registration Statement |
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(b) |
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Opinions of Counsel for the Company |
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(c) |
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Opinion of Special Maryland Counsel for the Company |
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(d) |
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Opinion of Counsel for the Underwriter |
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(e) |
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Officers Certificate |
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(f) |
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Accountants Comfort Letter |
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(g) |
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Bring-down Comfort Letter |
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(h) |
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Maintenance of Rating |
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(i) |
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Approval of Listing |
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(j) |
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Conditions to Purchase of Option Securities |
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(i) Officers Certificate |
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(ii) Opinions of Counsel for the Company |
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(iii) Opinion of Counsel for the Underwriter |
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(iv) Bring-down Comfort Letter |
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(v) No Downgrading |
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(k) |
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Additional Documents |
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(l) |
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Lock-up Agreements |
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(m) |
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Termination of Agreement |
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SECTION 6. Indemnification |
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(a) |
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Indemnification of Underwriter |
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(b) |
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Indemnification of Company,
Operating Partnership, Trustees, Partners and Officers |
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(c) |
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Actions against Parties; Notification |
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(d) |
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Settlement without Consent if Failure to Reimburse |
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SECTION 7. Contribution |
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery |
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SECTION 9. Termination of Agreement |
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(a) |
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Termination; General |
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(b) |
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Liabilities |
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SECTION 10. Default by the Underwriter |
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SECTION 11. Notices |
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SECTION 12. Parties |
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SECTION 13. Governing Law and Time |
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SECTION 14. Effect of Headings |
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SCHEDULES |
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Schedule A Terms of Common Shares |
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Sch A-1 |
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Schedule B Signatories to Lock-up Agreements |
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Sch B-1 |
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EXHIBITS |
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Exhibit A Form of Opinion of Companys Counsel |
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A-1 |
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Exhibit B Form of Opinion of Special Maryland Counsel to the Company |
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B-1 |
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Exhibit C Form of Lock-up Agreement |
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C-1 |
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VORNADO REALTY TRUST
(a Maryland real estate investment trust)
9,000,000 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
Underwriting Agreement
August 4, 2005
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the Company), confirms its
agreement with you (the Underwriter, which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the issue and sale by the Company and
the purchase by you 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 you of the option described in Section 2(b) hereof to purchase all or any part of
1,350,000 additional Common Shares to cover over-allotments, if any. The aforesaid 9,000,000
Common Shares (the Initial Securities) to be purchased by you and all or any part of the
1,350,000 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 you propose to offer the Securities (the Offering) as set forth
in the prospectus supplement as soon after the execution and delivery hereof as in your judgment 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 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 in light of the circumstances under which they were made;
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 in light of the
circumstances under which they were made; 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;
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(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 in light of the
circumstances under which they were made; 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) Form S-3 Eligibility. The Company meets the requirements for use of Form
S-3 under the 1933 Act and has filed with 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 1933 Act and such registration
statements have been declared effective by the Commission;
(iv) 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 or business affairs (a Material Adverse Effect) of
the Company and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(v) Good Standing of the Company. The Company is a real estate investment
trust duly formed and existing under the laws of the State of Maryland in good standing with
the State Department of Assessments and Taxation of Maryland (SDAT), 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 Company and its subsidiaries
taken as a whole;
(vi) Qualification as a REIT. The Company is organized and, commencing with
its taxable year ended December 31, 1993, has operated in conformity with the requirements
for qualification as a real estate investment trust (a REIT) under the
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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;
(vii) Good Standing of the Operating Partnership. Vornado Realty L.P. (the
Operating Partnership) has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware and has partnership
power and authority to own, lease and operate its properties and to conduct its business
substantially as described in the Prospectus and is duly qualified as a foreign organization
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a Material
Adverse Effect on the 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 (except for the general partner interest) nonassessable; the
Company is the sole general partner of, and owned an approximately 88.4% common limited
partnership interest in, the Operating Partnership as of June 30, 2005;
(viii) Good Standing of Subsidiaries. Each subsidiary of the Company, other
than the Operating Partnership, which is covered in paragraph (vii) 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 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, pledge, lien, encumbrance, claim or equity, except as would not have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole and except as disclosed in the
Prospectus;
(ix) Capitalization. The Company has an authorized capitalization as set forth
in its Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2005 (except
for (a) subsequent issuances, if any, pursuant to this Agreement or pursuant to the terms of
reservations, agreements or employee benefit plans, including, without limitation, dividend
reinvestment plans and employee or director stock option plans or as otherwise described in
the Prospectus or the exercise of options outstanding on the date hereof and (b) subsequent
amendments to its Declaration of Trust);
(x) Authorization and Description of the 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
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the description thereof contained
in the Prospectus under the caption Description of Shares of Beneficial Interest of Vornado
Realty Trust;
(xi) 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 of the Company and, except as would not have a Material Adverse
Effect on the Company and its subsidiaries taken as a whole, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Amended and Restated Declaration of Trust, as amended, or Bylaws of
the Company or (except as where such violation would not cause a Material Adverse Effect on
the Company and its subsidiaries taken as a whole or any adverse effect on the Companys
ability to consummate the transactions contemplated hereby) any statute or any order, rule
or regulation of any court or governmental authority, agency or body having jurisdiction
over the Company or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Common Shares or the consummation by the Company of
the transactions contemplated by this Agreement or any over-allotment option, except such as
have been, or will have been prior to the Closing Time and each Date of Delivery (as defined
in Section 2(b) hereof), obtained under the 1933 Act and the 1933 Act Regulations and such
consents, approvals, authorizations, registrations or qualifications 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;
(xii) 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;
(xiii) 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 Company and its
subsidiaries taken as a whole; and, to the best of the Companys 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, except where the failure to file such
exhibit would not amount to an untrue statement of a material fact or omission of a
statement of a material fact required to make the statements in the
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Registration Statement
not misleading in light of the circumstances under which they were made;
(xiv) 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 Company and
its subsidiaries taken as a whole;
(xv) Accuracy of Certain Descriptions. The statements set forth in the
Prospectus under the captions Description of Shares of Beneficial Interest of Vornado
Realty Trust, 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 in all material respects;
(xvi) Investment Company Act. Neither the Company nor the Operating
Partnership is subject to registration as an investment company under the Investment
Company Act;
(xvii) Independent Public Accountants. Deloitte & Touche LLP, who have
certified certain financial statements and financial statement schedules of the Company and
its subsidiaries included or incorporated by reference in the Registration Statement, are an
independent public accounting firm with respect to the Company as required by the 1933 Act
and the 1933 Act Regulations;
(xviii) 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,
in all material respects, 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, in all material respects, 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
6
adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein;
(xix) Title to Property. Except as otherwise disclosed in the Prospectus, and
except as would not have a Material Adverse Effect on 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; (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 partys rights as
lessee under any of such leases, or affecting or questioning any such partys 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 partys properties is in
default under any of the leases pursuant to which the Company or any of its subsidiaries leases its properties to third parties 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;
(xx) Environmental Laws. Except as otherwise disclosed in the Prospectus, or
as is not reasonably likely to have a Material Adverse Effect on 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 standards of conduct relating to damage to
property or injury to persons caused by such materials (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 expect that any such governmental authorization will 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,
7
threatened release,
or disposal of any material (including radiation and noise), that could reasonably
be expected to 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 made available to the Underwriter or
counsel for the Underwriter all material 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.
(xxi) No Stabilizing Actions. Except as in compliance with Regulation M,
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.
(xxii)
No Fiduciary Duty.
The Company hereby acknowledges that (a) the Underwriter is acting as principal and
not as an agent or fiduciary of the Company and (b) the Companys engagement of the
Underwriter in connection with the Offering is as an independent contractor and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making
its own judgments in connection with the Offering (irrespective of whether the Underwriter
has advised or is currently advising the Company on related or other matters).
(b) Officers Certificates. Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Underwriter or 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 aggregate principal amount of Initial Securities set forth in Schedule A.
8
(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 1,350,000 Common Shares at the price per
share set forth in Schedule A. 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 you, 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 through the facilities of The
Depository Trust Company (DTC) of certificates for, the Securities shall be made at the offices
of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036 or at such
other place as shall be agreed upon by you 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 you 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 you and the Company, on each Date of Delivery as specified in the notice from you 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 through the facilities of DTC to the
Underwriter of certificates for the Securities to be purchased by them.
(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
9
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 has delivered to the Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. 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 such 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, except where the failure to
comply will not adversely affect the distribution of the Securities. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is necessary for the Company
to amend the Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue 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 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 security holders as soon as practicable an
10
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 the Underwriter,
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 (including the Option Securities), (B) any
Common Shares issued by the Company on the redemption, conversion or exchange of convertible or
exchangeable securities outstanding on the date hereof or (C) any Common Shares issued pursuant to
existing equity compensation plans.
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 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 DTC or its designated custodian or 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 Companys 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 each preliminary
prospectus and of the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Securities, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the 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 or other transfer taxes on resale of any of the
Securities by it, and any advertising expenses connected with any offers of the Securities such
Underwriter may make.
(b) Termination of Agreement. If this Agreement is terminated by the Underwriter in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
11
reimburse
the Underwriter for all reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriters 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 and shall continue to be in effect under the 1933
Act or proceedings therefore 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 LLP, counsel for the
Company, in form and substance reasonably satisfactory to counsel for the Underwriter, to the
effect set forth in Exhibit A hereto.
(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 Venable, 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 certain legal matters relating to this Agreement
and such other related matters as the Underwriter may request. 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 or business affairs 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
12
effectiveness of the Registration
Statement has been issued and shall be in effect 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.
(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) Maintenance of Rating. At Closing Time, the Securities shall be rated at least Baa3 by
Moodys Investors Service and BBB- by Standard & Poors Ratings Group, a division of McGraw-Hill,
Inc.; and since the date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Companys other securities by any nationally
recognized statistical rating agency, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it
has under surveillance or review its rating of the Securities or any of the Companys other
securities.
(i) Approval of Listing. At Closing Time, either (i) the Securities shall have been approved
for listing on the New York Stock Exchange, subject only to official notice of issuance, or (ii) if
trading on the New York Stock Exchange is to be delayed, the Company shall have filed an
application for listing of the Securities on the New York Stock Exchange.
(j) 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
Chairman or President and of the Executive Vice President Finance and Administration,
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 opinion and letter of Sullivan &
Cromwell LLP, counsel for the Company, together with the opinion of Venable, LLP, special
Maryland counsel for the Company, each in form and substance
13
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.
(v) No Downgrading. Subsequent to the date of this Agreement, no downgrading
shall have occurred in the rating accorded the Securities or of any of the Companys other
securities by any nationally recognized statistical rating organization, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or review its
ratings of any of the Companys securities.
(k) 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 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.
(l) Lock-up Agreements. At the date of this Agreement, the Underwriter shall have
received an agreement substantially in the form of Exhibit C hereto signed by the persons
listed on Schedule B hereto.
(m) Termination of Agreement. If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of
any condition to the purchase of 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.
14
(a) Indemnification of Underwriter. The Company and the Operating Partnership each agree to
indemnify and hold harmless the Underwriter, its officers or directors, 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 any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, subject to
Section 6(c) hereof, the reasonable fees and disbursements of counsel chosen by the
Underwriter), 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 any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that the Company shall not be liable to the Underwriter under the
indemnity agreement in this subsection (a) to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold Securities to a
person to whom there was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or the Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by the 1933 Act and the
untrue statement or omission of a material fact contained in the Prospectus, any such amendment or
supplement thereto or any such other document was corrected in the Prospectus or the Prospectus as
then amended or supplemented if the Company has furnished prior to such confirmation sufficient
copies thereof to such Underwriter.
15
(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, partners or officers, including without limitation, each of the officers who
signed the Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment thereto) in reliance upon and in conformity with written information furnished to the
Company or the Operating Partnership by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel 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
16
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
total underwriting discount received by the Underwriter, in each case as set forth on the cover of
the Prospectus Supplement, bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Company on the one hand and the 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
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any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
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 officer or director, as the case may be, of 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 shall have the same rights to contribution as such
Underwriter, and each trustee, partner or officer, as the case may be, of the Company or the
Operating Partnership, including without limitation each officer who signed the Registration Statement, and each person, if any, who controls the Company or the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company or the Operating Partnership, as the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by or on behalf of the
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
or business affairs 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 to the public or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading generally on the American
Stock Exchange or the New York Stock Exchange 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 or (v) there shall
have been any downgrading in the rating assigned to the Securities or any of the Companys other
securities by any nationally recognized
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statistical rating organization (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential downgrading in any
such rating.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by the Underwriter.
(a) If the Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase under this Agreement, the Underwriter may in its discretion arrange for another
party or other parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by the Underwriter the Underwriter does not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the Underwriter notifies the
Company that it has so arranged for the purchase of such Securities, or the Company notifies the
Underwriter that it has so arranged for the purchase of such Securities, the Underwriter or the
Company shall have the right to postpone the Closing Time for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus which in the opinion
of the Underwriter may thereby be made necessary. The term Underwriter as used in the Agreement
shall include any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Securities of the
defaulting Underwriter by the Company, as provided in subsection (a) above, the number of
Securities which remains unpurchased exceeds one-tenth of the number of the Securities to be
purchased on such date, then this Agreement shall thereupon terminate, without liability on the
part of the Company, except for the expenses to be borne by the Company and the Underwriter
provided in Section 4 hereof and the indemnity and contribution agreements in Sections 6 and 7
hereof; but nothing herein shall relieve the defaulting Underwriter from liability for its default.
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 General Counsel, Citigroup
Global Markets Inc., 388 Greenwich Street, New York, New York 10013, and by facsimile to (212)
816-7912, attention General Counsel; and notices to the Company and the Operating Partnership shall
be directed to it at 888 Seventh Avenue, New York, New York 10019, attention of the Executive Vice
President Finance and Administration, Chief Financial Officer.
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
19
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 the 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.
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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.
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Very truly yours, |
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VORNADO REALTY TRUST |
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By:
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/s/ Steven Roth |
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VORNADO REALTY L.P. |
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By:
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Vornado Realty Trust, |
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its General Partner |
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By:
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/s/ Steven Roth |
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CONFIRMED AND ACCEPTED,
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Michael Judlowe
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Name: Michael Judlowe |
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Title: Director (ECM) |
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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: 9,000,000
Maximum Number of Option Shares: 1,350,000
Public Offering Price:
$86.75 per Share.
Purchase Price by Underwriter:
$86.75 per Share.
Form of Designated Shares:
Book-Entry Only through DTC.
Specified Funds for Payment of Purchase Price:
Wire transfer of same day funds.
Time of Delivery:
9:00 a.m. (New York City time), August 10, 2005
Closing Location:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, New York 10036
Name and Address of Underwriter:
Citigroup Global Markets Inc.
Address for Notices, etc.:
General Counsel
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Sch A-1
Listing:
New York Stock Exchange: VNO
Sch A-2
SCHEDULE B
VORNADO REALTY TRUST
Signatories to Lock-up Agreements
1. All trustees and officers of the Company;
2. Interstate Properties;
3. Clarice Smith; and
4. Arlene Kogod.
B-1
EXHIBIT 99.1
Exhibit 99.1
CONTACT: JOSEPH MACNOW
(201) 587-1000
210 Route 4 East
Paramus, NJ 07652
FOR IMMEDIATE RELEASE August 4, 2005
VORNADO REALTY TRUST PRICES OFFERING OF
9.0 MILLION COMMON SHARES
PARAMUS, NEW JERSEY....VORNADO REALTY TRUST (NYSE:VNO) announced that it sold in a public
offering 9,000,000 common shares at $86.75 per share. Citigroup Global Capital Markets, Inc., is
the sole underwriter. In addition, Vornado has granted Citigroup an option for 30 days to purchase
up to an additional 1,350,000 common shares to cover over-allotments.
Copies of the prospectus supplement and prospectus relating to this offering of common shares
may be obtained from Citigroup Global Markets Inc., Brooklyn Army Terminal, 140 58th
Street, 8th Floor, Brooklyn, New York 11220, telephone (718) 765-6732.
This communication shall not constitute an offer to sell or the solicitation of an offer to
buy, nor shall there be any offer, solicitation or sale of the securities in any state in which
such offer, solicitation or sale would be unlawful prior to registration or qualification.
Vornado Realty Trust is a fully-integrated equity real estate investment trust.
This press release contains forward-looking statements within the meaning of the Private
Securities Litigation Reform Act. These forward-looking statements are based on the current intent
and expectations of the management of Vornado Realty Trust of future performance, and involve risks
and uncertainties that are difficult to predict. Vornado Realty Trusts actual results and the
outcome of events may differ materially from those expressed in or implied by the forward-looking
statements due to risks detailed in Vornado Realty Trusts public filings with the Securities and
Exchange Commission.
B-2