SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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):
February 28, 2002
VORNADO REALTY TRUST
(Exact Name of Registrant as Specified in Charter)
MARYLAND NO. 001-11954 NO. 22-1657560
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
888 SEVENTH AVENUE
NEW YORK, NEW YORK 10019
(Address of Principal Executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 894-7000
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(Former name or former address, if changed since last report)
Item 5. OTHER EVENTS.
On February 25, 2002, Vornado Realty Trust ("Vornado") and Vornado
Realty L.P. (the "Operating Partnership") entered into an Underwriting Agreement
with Salomon Smith Barney Inc. relating to the issuance and sale of 514,200
common shares of beneficial interest, par value $0.04 per share (the "Common
Shares"), of Vornado for an aggregate purchase price of $20,989,644. Salomon
Smith Barney intends to deposit such Common Shares with the trustee of The
Equity Focus Trusts--REIT Portfolio Series, 2002-A in exchange for units in the
trust. Salomon Smith Barney may also purchase up to an additional 77,130 shares
at the public offering price, less the underwriting discount, within 30 days
from the date of such Underwriting Agreement. Expenses payable by Vornado in
connection with the offering are expected to be approximately $150,000. The
issuance and sale of Common Shares to Salomon Smith Barney Inc. pursuant to
such Underwriting Agreement closed on February 28, 2002.
In addition, on February 25, 2002, Vornado and the Operating
Partnership entered into a Placement Agency Agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Vornado entered into a
Purchase Agreement with Cohen & Steers Quality Income Realty Fund, Inc. (the
"Fund"), each relating to the issuance and sale of 884,543 Common Shares to the
Fund for an aggregate purchase price of $37,999,967.28. Fees and expenses
payable by Vornado in connection with the offering are expected to be
approximately $2,097,498.32. The issuance and sale of Common Shares to the Fund
pursuant to such Purchase Agreement closed on February 28, 2002.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following documents are filed as Exhibits to this report:
1.1 Underwriting Agreement, dated February 25, 2002, among Vornado, the
Operating Partnership and Salomon Smith Barney Inc.
10.1 Placement Agency Agreement, dated February 25, 2002, among Vornado,
the Operating Partnership
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated
10.2 Purchase Agreement, dated February 25, 2002, between Vornado and the
Fund
8.1 Tax Opinion of Sullivan & Cromwell
-3-
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.
VORNADO REALTY TRUST
(Registrant)
By: /s/ JOSEPH MACNOW
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Name: Joseph Macnow
Title: Executive Vice
President - Finance and
Administration, Chief
Financial Officer
Date: February 28, 2002
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EXHIBIT INDEX
1.1 Underwriting Agreement, dated February 25, 2002, among Vornado, the
Operating Partnership and Salomon Smith Barney Inc.
10.1 Placement Agency Agreement, dated February 25, 2002, among Vornado,
the Operating Partnership and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated
10.2 Purchase Agreement, dated February 25, 2002, between Vornado and the
Fund
8.1 Tax Opinion of Sullivan & Cromwell
-5-
================================================================================
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
514,200 Common Shares of Beneficial Interest
(par value $0.04 per share)
UNDERWRITING AGREEMENT
Dated: February 25, 2002
================================================================================
TABLE OF CONTENTS
Underwriting Agreement.........................................................1
SECTION 1. Representations and Warranties................................2
(a) Representations and Warranties by the Company....................2
(i) Incorporated Documents..................................2
(ii) Compliance with Registration Requirements...............3
(iii) No Material Adverse Change in Business..................3
(iv) Good Standing of the Company............................3
(v) Qualification as a REIT.................................4
(vi) Good Standing of the Operating Partnership..............4
(vii) Good Standing of Subsidiaries...........................4
(viii) Capitalization..........................................5
(ix) Authorization and Description of Common Shares..........5
(x) Absence of Conflicts and Defaults.......................5
(xi) Authorization of this Underwriting Agreement............6
(xii) Absence of Proceedings..................................6
(xiii) No Violations or Defaults...............................6
(xiv) Accuracy of Certain Descriptions........................6
(xv) Investment Company Act..................................6
(xvi) Independent Public Accountants..........................6
(xvii) Financial Statements....................................7
(xviii) Title to Property.......................................7
(xix) Environmental Laws......................................8
(xx) No Stabilizing Actions..................................8
(b) Officer's Certificates...........................................9
SECTION 2. Sale and Delivery to the Underwriter; Closing.................9
(a) Initial Securities............................................9
(b) Option Securities.............................................9
(c) Payment.......................................................9
(d) Denominations; Registration..................................10
SECTION 3. Covenants of the Company.....................................10
(a) Delivery of Registration Statements..........................10
(b) Delivery of Prospectus.......................................10
(c) Continued Compliance with Securities Laws....................11
(d) Rule 158.....................................................11
(e) Use of Proceeds..............................................11
(f) Listing......................................................11
SECTION 4. Payment of Expenses..........................................11
(a) Expenses.....................................................11
(b) Termination of Agreement.....................................12
SECTION 5. Conditions of the Underwriter's Obligations..................12
i
(a) Effectiveness of Registration Statement......................12
(b) Opinions of Counsel for the Company..........................12
(c) Opinion of Special Maryland Counsel for the Company..........12
(d) Opinion of Counsel for the Underwriter.......................12
(e) Officers' Certificate........................................13
(f) Accountants' Comfort Letter..................................13
(g) Bring-down Comfort Letter....................................13
(h) Approval of Listing..........................................13
(i) Conditions to Purchase of Option Securities..................14
(i) Officers' Certificate.................................14
(ii) Opinions of Counsel for the Company...................14
(iii) Opinion of Counsel for the Underwriter................14
(iv) Bring-down Comfort Letter.............................14
(j) Additional Documents.........................................14
(k) Termination of Agreement.....................................15
SECTION 6. Indemnification..............................................15
(a) Indemnification of the Underwriter...........................15
(b) Indemnification of Company, Operating Partnership,
Trustees, Partners and Officers..............................16
(c) Actions against Parties; Notification........................16
(d) Settlement without Consent if Failure to Reimburse...........17
SECTION 7. Contribution.................................................17
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.............................................18
SECTION 9. Termination of Agreement.....................................18
(a) Termination; General.........................................18
(b) Liabilities..................................................19
SECTION 10. INTENTIONALLY OMITTED........................................19
SECTION 11. Notices......................................................19
SECTION 12. Parties......................................................19
SECTION 13. GOVERNING LAW AND TIME.......................................20
SECTION 14. Effect of Headings...........................................20
SCHEDULES
Schedule A - Terms of Common Shares............................Sch A-1
ii
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.....................A-1
Exhibit B - Form of Opinion of Special Maryland
Counsel to the Company...................................B-1
iii
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
514,200 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
Underwriting Agreement
February 25, 2002
Salomon Smith Barney Inc.
388 Greenwich Street
32nd Floor
New York, NY 10013
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), and Vornado Realty L.P., a Delaware limited partnership (the
"Operating Partnership"), each confirms its agreement with Salomon Smith Barney
Inc. (the "Underwriter") with respect to the issue and sale by the Company and
the purchase by the Underwriter of the number of Common Shares of Beneficial
Interest, par value $0.04 per share, of the Company (the "Common Shares") set
forth above, and with respect to the grant by the Company to the Underwriter of
the option described in Section 2(b) hereof to purchase all or any part of
77,130 additional Common Shares. The aforesaid 514,200 Common Shares (the
"Initial Securities") to be purchased by the Underwriter and all or any part of
the 77,130 Common Shares subject to the option described in Section 2(b) hereof
(the "Option Securities") are hereinafter called collectively the "Securities".
The Company understands that the Underwriter intends to deposit the
Securities with the trustee of The Equity Focus Trusts REIT Portfolio Series,
2002-A (the "Trust"), a registered unit investment trust under the Investment
Company Act of 1940, as amended, in exchange for units in the Trust, as set
forth in the Prospectus Supplement (as hereafter defined). The Underwriter is
acting as sponsor and depositor of the Trust and is therefore considered an
affiliate of the Trust.
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
2
of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use in the
Registration Statement or the Prospectus, in each case as amended or
supplemented, relating to such Common Shares;
(ii) Compliance with Registration Requirements. The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the 1933 Act and the 1933
Act Regulations and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use in the
Prospectus as amended or supplemented relating to such Common Shares;
(iii) No Material Adverse Change in Business. Neither the Company nor
any of its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, there has
not been any change in the capitalization or long-term debt of the Company
or any material adverse change in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(iv) Good Standing of the Company. The Company is a real estate
investment trust duly formed and existing under the laws of the State of
Maryland in good standing with
3
the State Department of Assessments and Taxation of Maryland, with trust
power to own, lease and operate its properties and to conduct its business
substantially as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified as
a foreign organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole;
(v) Qualification as a REIT. The Company is organized in conformity
with the requirements for qualification as a real estate investment trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and currently intends to operate in a manner which allows the
Company to continue to meet the requirements for taxation as a REIT under
the Code;
(vi) Good Standing of the Operating Partnership. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware and
has partnership power and authority to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Operating Partnership; all of the issued and outstanding limited
partnership interests in the Operating Partnership have been duly
authorized and validly issued and are fully paid and nonassessable; the
Company is the sole general partner of, and owned an approximately 86%
common limited partnership interest in, the Operating Partnership as of
September 30, 2001;
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company,
other than the Operating Partnership, which is covered in paragraph (vi)
above, has been duly formed and is validly existing in good standing under
the laws of the jurisdiction of its organization and has power and
authority to own, lease and operate its properties and to conduct its
business substantially as described in the Prospectus and is duly qualified
as a foreign organization to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company or the Operating Partnership,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien,
4
encumbrance, claim or equity, except as would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole and except as disclosed in the Prospectus;
(viii) Capitalization. The Company has an authorized capitalization as
set forth in its Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2001 (except for subsequent issuances, if any, pursuant
to this Agreement or pursuant to the terms of reservations, agreements or
employee benefit plans, including, without limitation, the Vornado Realty
Trust Omnibus Share Plan, dividend reinvestment plans and employee or
director stock option plans, the redemption of units of the Operating
Partnership or the exercise of options outstanding on the date hereof), and
all of the issued and outstanding shares of beneficial interest of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable;
(ix) Authorization and Description of Common Shares. The Common Shares
have been duly authorized, and, when the Initial Securities are issued and
delivered pursuant to this Agreement and, in the case of any Option
Securities, pursuant to over-allotment options with respect to such Common
Shares, such Securities will be duly and validly issued and fully paid and
nonassessable; the Common Shares conform to the description thereof
contained in the Prospectus under the captions "Description of Shares of
Beneficial Interest" and "Supplemental Description of Shares of Beneficial
Interest";
(x) Absence of Conflicts and Defaults. The issue and sale of the
Common Shares and each over-allotment option, if any, and the compliance by
the Company with all of the provisions of this Agreement and each
over-allotment option, if any, and the consummation of the transactions
contemplated herein have been duly authorized by all necessary trust action
and, except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Amended and Restated
Declaration of Trust, as amended, or Amended and Restated Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental authority, agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Common Shares or
the consummation by the Company of the transactions contemplated by this
Agreement or any over-allotment option, except such as have been, or will
have been prior to the Closing Time and each Date of Delivery (as defined
in Section 2(b) hereof), obtained under the 1933 Act and the 1933 Act
Regulations and such consents, approvals, authorizations, registrations or
qualifications
5
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Common Shares by the Underwriter;
(xi) Authorization of this Underwriting Agreement. This Agreement has
been duly authorized by all necessary trust action of the Company and all
necessary partnership action of the Operating Partnership and has been
executed and delivered by the Company and the Operating Partnership;
(xii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which
have not been so filed;
(xiii) No Violations or Defaults. Neither the Company nor any of its
subsidiaries is in violation of its organizational documents or bylaws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
or assets may be bound, which default would have a material adverse effect
on the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole;
(xiv) Accuracy of Certain Descriptions. The statements set forth in
the Prospectus under the captions "Description of Shares of Beneficial
Interest", "Supplemental Description of the Shares of Beneficial Interest",
"Federal Income Tax Considerations", "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair
summaries;
(xv) Investment Company Act. Neither the Company nor the Operating
Partnership is subject to registration as an "investment company" under the
Investment Company Act;
(xvi) Independent Public Accountants. Each of (a) Deloitte & Touche
LLP, who has certified certain financial statements and financial statement
schedules of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, and (b) Arthur Andersen LLP, who
has certified certain financial information relating to Charles
6
E. Smith Commercial Realty L.P. contained in the Company's Current Report
on Form 8-K dated October 19, 2001, which financial information is
incorporated by reference into the Prospectus, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations;
(xvii) Financial Statements. The financial statements and the
financial statement schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as at the dates indicated, the
results of their operations for the periods specified and the information
required to be stated therein; and said financial statements and financial
statement schedules have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. The selected financial data included or incorporated by
reference in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the consolidated
financial statements included or incorporated by reference in the
Registration Statement. Any pro forma financial statements and other pro
forma financial information included in the Registration Statement and the
Prospectus comply in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X of the Commission and present fairly the
information shown therein; the pro forma adjustments, if any, have been
properly applied to the historical amounts in the compilation of such
statements, and in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein;
(xviii) Title to Property. Except as otherwise disclosed in the
Prospectus, and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole:
(i) each of the Company and its subsidiaries has good and marketable title
to all properties and assets described in the Prospectus as owned by such
party, in each case free of all liens, encumbrances and defects; (ii) all
of the leases under which the Company or any of its subsidiaries holds or
uses real property or assets as a lessee are in full force and effect, and
neither the Company nor any of its subsidiaries is in material default in
respect of any of the terms or provisions of any of such leases and no
claim has been asserted by anyone adverse to any such party's rights as
lessee under any of such leases, or affecting or questioning any such
party's right to the continued possession or use of the leased property or
assets under any such leases; (iii) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets of the
Company or any of its subsidiaries that are required to be disclosed in the
Prospectus are disclosed therein; (iv) neither the Company, any of its
subsidiaries nor, to the knowledge of the Company, any lessee of any
portion of any such party's properties is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases its
properties and neither the Company nor any of its subsidiaries knows of any
event which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases; (v) no tenant under
any lease
7
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;
(xix) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole:
A. each of the Company and its subsidiaries is in compliance with
all applicable laws relating to pollution or the discharge of
materials into the environ ment, including common law relating to
damage to property or injury to persons ("Environmental Laws"), each
of the Company and its subsidiaries currently holds all governmental
authorizations required under Environmental Laws in order to conduct
their businesses as described in the Prospectus, and neither the
Company nor any of its subsidiaries has any basis to believe that any
such governmental authorization may be modified, suspended or revoked,
or cannot be renewed in the ordinary course of business;
B. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release, or disposal of any
material (including radiation and noise), that could form the basis of
any claim (whether by a governmental authority or other person or
entity) under Environmental Laws for cleanup costs, damages,
penalties, fines, or otherwise, against any of the Company or its
subsidiaries, or against any person or entity whose liability for such
claim may have been retained by any of the Company or its
subsidiaries, whether by contract or law; and
C. the Company and its subsidiaries have fully disclosed to the
Underwriter or counsel for the Underwriter all studies, reports,
assessments, audits and other information in their possession or
control relating to any pollution or release, threatened release or
disposal of materials regulated under Environmental Laws on, at,
under, from or transported from any of their currently or formerly
owned, leased or operated properties, including, without limitation,
all information relating to underground storage tanks and asbestos
containing materials; and
(xx) No Stabilizing Actions. Neither the Company nor the Operating
Partnership has taken, and neither the Company nor the Operating
Partnership will take, directly or
8
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Shares.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at the price per share set forth in Schedule A,
the number of Initial Securities set forth in Schedule A opposite the name of
the Underwriter.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriter to purchase up
to an additional 77,130 Common Shares at the price per share set forth in
Schedule A. Such additional Common Shares will be deposited with the trustee of
The Equity Focus Trusts-REIT Portfolio Series, 2002-A on the same terms as the
Initial Securities. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time 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
the Underwriter, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036 or at such
other place as shall be agreed upon by the Underwriter and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriter 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 the Underwriter and
the Company, on each Date of Delivery as specified in the notice from the
Underwriter to the Company.
9
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter of certificates for the Securities to be purchased by them.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time or the relevant Date of Delivery, as
the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriter in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and copies of all consents and certificates of experts. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T of the Commission.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will inform
the Underwriter of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Underwriter with
copies of any such amendment or supplement a reasonable time in advance of
filing; and will not file any such amendment or supplement in a form to which
the Underwriter or counsel to the Underwriter shall reasonably object (it being
understood that the terms "amendment" and "supplement" do not include documents
filed by the Company pursuant to the 1934 Act).
(b) Delivery of Prospectus. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the Commission.
10
(c) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"), so as
to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary for the Company to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circum stances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriter such number of copies of such amendment or supplement as the
Underwriter may reasonably request.
(d) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(e) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(f) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
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 the Underwriter, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees
and disbursements of the Company's counsel and accountants, (v) the
qualification, if any, of the Securities under state securities laws, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriter in connection therewith and in connection with the preparation of a
Blue Sky Survey and any supplement thereto, if any, (vi) the printing and
delivery to the Underwriter of the Prospectus
11
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 disburse ments of counsel to the Underwriter in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities and (ix)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange. It is understood, however, that, except as
provided in this Section and Section 6 hereof, the Underwriter will pay all of
its own costs and expenses, including the fees of its counsel, stock transfer
taxes on resale of any of the Securities by it, and any advertising expenses
connected with any offers of the Securities the Underwriter may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter.
SECTION 5. Conditions of the Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any subsidiary of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. No stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the 1933 Act
Regulations.
(b) Opinions of Counsel for the Company. At Closing Time, the
Underwriter shall have received the opinion and letter, dated as of Closing
Time, of Sullivan & Cromwell, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect set forth
in Exhibit A hereto.
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, the Underwriter shall have received the opinion, dated as of Closing Time,
of Ballard Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for the Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter, with
respect to the matters set forth in clauses (i), (v) and
12
(vi) in the opinion and (i) in the letter in Exhibit A hereto. In giving such
opinion such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, and the Underwriter shall have
received a certificate of the Chairman or President, and the Executive Vice
President - Finance and Administration, Chief Financial Officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the best of such officers' knowledge, are pending or are
contemplated by the Commission.
(f) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Underwriter shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
In addition, at the time of the execution of this Agreement, the
Underwriter shall have received from Arthur Andersen LLP a letter, in form and
substance satisfactory to the Underwriter, containing statements and information
as may be requested by the Underwriter and counsel for the Underwriter, with
respect to certain financial information relating to Charles E. Smith Commercial
Realty L.P. contained in the Company's Current Report on Form 8-K dated October
19, 2001, which financial information is incorporated by reference into the
Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Underwriter shall
have received from each of Deloitte & Touche LLP and Arthur Andersen LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their respective letters furnished pursuant to subsection (f)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
13
(i) Conditions to Purchase of Option Securities. In the event that the
Underwriter exercises its option provided in Section 2(b) hereof to purchase all
or any portion of the Option Securities, the representations and warranties of
the Company contained herein and the statements in any certificates furnished by
the Company or any subsidiary of the Company hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriter shall have received:
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the Chief
Financial Officer of the Company confirming that the certificate delivered
at the Closing Time pursuant to Section 5(e) hereof remains true and
correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Company. The opinions of Sullivan &
Cromwell, counsel for the Company, together with the opinion of Ballard
Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the Company,
each in form and substance reasonably satisfactory to counsel for the
Underwriter, dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the same effect
as the opinions required by Sections 5(b) and 5(c) hereof.
(iii) Opinion of Counsel for the Underwriter. The opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter, dated such
Date of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from each of Deloitte &
Touche LLP and Arthur Andersen LLP, in form and substance satisfactory to
the Underwriter and dated such Date of Delivery, substantially in the same
form and substance as the letters furnished to the Underwriter pursuant to
Section 5(g) hereof, except that the "specified date" in the letters
furnished pursuant to this paragraph shall be a date not more than three
days prior to such Date of Delivery.
(j) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriter shall have been furnished with such documents and
opinions as they may require 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.
14
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
Underwriter to purchase the relevant Option Securities, may be terminated by the
Underwriter by notice to the Company at any time at or prior to Closing Time or
such Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriter. The Company and the Operating
Partnership each agree to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by 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;
15
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers. The Underwriter agrees to indemnify and hold harmless the
Company, the Operating Partnership, their respective trustees or partners, each
of the officers who signed the Registration Statement, and each person, if any,
who controls the Company or the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment thereto) in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by 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.
16
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into, (iii) such
indemnifying party, if it has not theretofore paid such reimbursement, is
requested again to pay reimbursement at least five, but not more than ten, days
prior to such settlement being entered into, and (iv) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriter on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the difference between the aggregate amounts paid to the Company by the
Underwriter in respect of the Securities and the total proceeds received by the
Underwriter in connection with the Offering of the Securities.
The relative fault of the Company on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method
17
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each trustee or partner, as the case may be, of the Company or the Operating
Partnership, each officer who signed the Registration Statement, and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or the Operating Partnership, as
the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriter or any controlling person of the Underwriter, or by or on behalf of
the Company or the Operating Partnership or any officer or trustee or partner or
controlling person of the Company or the Operating Partnership, and shall
survive delivery of the Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in or affecting the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries taken
as a whole, whether
18
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 (w) to commence or continue the offering of the
units in the Trust to the public, or (x) to enforce contracts for the sale of
units in the Trust, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of such exchanges or by order of the Commission or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. INTENTIONALLY OMITTED.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the General Counsel of Salomon Smith Barney
Inc., 388 Greenwich Street, New York, NY 10013; and notices to the Company and
the Operating Partnership shall be directed to it at 888 Seventh Avenue, New
York, NY 10019, attention of the Executive Vice President - Finance and
Administration, Chief Financial Officer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter, the Company, the Operating Partnership and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company, the Operating Partnership and their
respective successors and the controlling persons and officers, trustees and
partners referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter, the Company, the Operating Partnership and
their respective successors, and said controlling persons and officers, trustees
and partners and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of the Securities from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
19
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriter, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
VORNADO REALTY TRUST
By:
/s/ STEVEN ROTH
--------------------------------
Name: Steven Roth
Title: Chief Executive Officer
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By:
/s/ STEVEN ROTH
--------------------------------
Name: Steven Roth
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written.
SALOMON SMITH BARNEY INC.
By:
/s/ DAN GUGLIELMONE
------------------------------
Name: Dan Guglielmone
Title: Director
22
SCHEDULE A
VORNADO REALTY TRUST
COMMON SHARES OF BENEFICIAL INTEREST
TITLE OF DESIGNATED SHARES:
Common Shares of Beneficial Interest
NUMBER OF DESIGNATED SHARES:
NUMBER OF FIRM SHARES: 514,200
MAXIMUM NUMBER OF OPTIONAL SHARES: 77,130
INITIAL OFFERING PRICE TO PUBLIC:
Salomon Smith Barney Inc. intends to deposit the Common Shares with the
trustee of The Equity Focus Trusts REIT Portfolio Series, 2002-A (the
"Trust") in exchange for units in the Trust.
PURCHASE PRICE BY SALOMON SMITH BARNEY INC.:
$40.82 per share
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds.
TIME OF DELIVERY:
9:00 a.m. (New York City time), February 28, 2002
CLOSING LOCATION:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, New York 10036
LISTING:
New York Stock Exchange: VNO
Sch A-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a real estate investment trust duly organized and
existing under the laws of the State of Maryland and is in good standing with
the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
(iii) The Operating Partnership is a limited partnership duly organized
and existing under the laws of the State of Delaware and has the partnership
power and authority to own, lease and operate its properties and conduct its
business substantially as described in the Prospectus;
(iv) The Securities have been duly authorized and validly issued and
are fully paid and nonassessable;
(v) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership;
(vi) The Registration Statement has been declared effective under the
1933 Act, and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending under the 1933
Act;
(vii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the State of New York for the issuance, sale and
delivery of the Securities by the Company to the Underwriter have been obtained
or made; provided, however, that for purposes of this paragraph (viii), such
counsel need not express any opinion with respect to state securities laws that
may be applicable to the issuance, sale or delivery of the Securities;
(viii) The execution and delivery by the Company and the Operating
Partnership of this Agreement, the issuance of the Securities and the sale of
the Securities by the Company to the Underwriter pursuant to this Agreement do
not, and the performance by the
A-2
Company of its obligations under this Agreement will not, (A) violate the
Company's Amended and Restated Declaration of Trust, as amended, or the
Company's Amended and Restated Bylaws or the certificate of limited partnership
of the Operating Partnership, (B) violate any court order or administrative
decree known to such counsel or any Federal law of the United States or law of
the State of New York applicable to the Company or the Operating Partnership, or
(C) result in a default under or breach of any agreement filed as an exhibit to
the Company's most recent Annual Report on Form 10-K and any subsequent
Quarterly Report on Form 10-Q or Current Report on Form 8-K under Item
601(b)(10) of Regulation S-K, subject in the case of clauses (A), (B) and (C) of
this paragraph (viii), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; provided,
however, that for purposes of this paragraph (ix), such counsel need not express
any opinion with respect to Federal or state securities laws, other antifraud
laws, fraudulent transfer laws or the Employee Retirement Income Security Act of
1974 and related laws;
(ix) Such counsel shall confirm (i) the opinion that, commencing with
its taxable year ending December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a REIT under the Code, and
its proposed method of operation will enable it to satisfy the requirements for
qualification and taxation as a REIT and (ii) that the discussion set forth
under the caption "Federal Income Tax Considerations" in the Prospectus
Supplement dated February 25, 2002 to the extent it describes matters of law or
legal conclusions, is correct in all material respects; in providing such
opinion, such counsel may rely (i) upon the statements and representations
contained in certificates provided by the Company and Two Penn Plaza REIT, Inc.,
(ii) without independent investigation, upon statements and representations
contained in a certificate provided by Alexander's, Inc., (iii) without
investigation, upon an opinion of Shearman & Sterling concerning the
qualification of Alexander's as a REIT for federal income tax purposes and (iv)
upon any other certificates or opinions of counsel as deemed necessary or
appropriate in rendering such opinion and subject to an analysis of the Code,
Treasury Regulations thereunder, judicial authority and current administrative
rulings and such other laws and facts as deemed relevant and necessary; and
(x) Neither the Company nor the Operating Partnership is an "investment
company", as such term is defined in the Investment Company Act of 1940.
In giving this opinion, Sullivan & Cromwell may state that such opinion
is limited to the Federal laws of the United States of America, the laws of the
State of New York, the Laws of the State of Maryland and the Revised Uniform
Limited Partnership Act of the State of Delaware, and such counsel express no
opinion as to the effect of the laws of any other jurisdiction; and such counsel
may rely (1) as to certain matters, upon information obtained from public
officials, officers of the Company and its subsidiaries and other sources
believed by them to be responsible and (2) as to all matters of Maryland law, on
the opinion of Ballard Spahr Andrews & Ingersoll, LLP, and such counsel's
opinion may be subject to the same assumptions, qualifications and limitations
with respect to such matters as are contained in
A-3
such opinion of Ballard Spahr Andrews & Ingersoll, LLP. Such counsel may assume
that the certificates for the Securities conform to the specimen thereof
examined by them and have been duly countersigned and registered by a registrar
and transfer agent of the Securities, that this Agreement has been duly
authorized, executed and delivered by the Underwriter and that the signatures on
all documents examined by them are genuine, assumptions which such counsel need
not independently verify.
(i) On the basis of the information which was reviewed in the course of
the performance of the services referred to in their opinion considered in the
light of their understanding of the applicable law (including the requirements
of Form S-3 and the character of the prospectus contemplated thereby) and the
experience they have gained through their practice under the 1933 Act, such
counsel are of the opinion that each part of the Registration Statement, when
such part became effective, and the Prospectus, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Securities, to the
requirements of the 1933 Act and the applicable 1933 Act Regulations; and
nothing that came to their attention in the course of their review has caused
them to believe that, insofar as relevant to the offering of the Securities, any
part of the Registration Statement, when such part became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus Supplement,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; also, nothing that
has come to such counsel's attention in the course of certain procedures (as
described in such opinion) has caused such counsel to believe that the
Prospectus, as of the date and time of delivery of such letter, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that such opinion may state that the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those made
under the captions "Description of Shares of Beneficial Interest" and
"Supplemental Description of Shares of Beneficial Interest" in the Prospectus
Supplement insofar as they relate to the provisions of documents therein
described, and that such does not express any opinion or belief as to the
financial statements or schedules or other financial data derived from
accounting records contained in the Registration Statement or the Prospectus;
and
(ii) Such counsel does not know of any litigation or governmental
proceeding instituted or threatened against the Company or any of its
consolidated subsidiaries that would be required to be disclosed in the
Prospectus and is not so disclosed; and such counsel does not know of any
documents that are required to be filed as exhibits to the Registration
Statement and are not so filed or of any documents that are required to be
summarized in the Prospectus that are not so summarized.
A-4
Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company is a real estate investment trust duly organized and
existing under and by virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
(iii) The Company has an authorized capitalization as set forth in the
Prospectus under the caption" Capitalization" (except for subsequent issuances,
if any, pursuant to this Agreement or pursuant to the terms of reservations,
agreements or employee benefit plans, including, without limitation, the Vornado
Realty Trust Omnibus Share Plan, dividend reinvestment plans and employee or
director stock option plans, or the exercise of options outstanding on the date
hereof, and in each case referred to in the Prospects), and all of the issued
and outstanding shares of beneficial interest of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; the issued
and outstanding shares of beneficial interest of the Company have been duly
authorized and validly issued and are fully paid and nonassessable; and none of
the outstanding shares of beneficial interest of the Company was issued in
violation of any preemptive rights of any shareholder of the Company arising
under Title 8 of the Corporations and Associations Article of the Annotated Code
of Maryland ("Title 8") or the Declaration of Trust or Bylaws of the Company;
(iv) The issuance and sale of the Securities to the Underwriter
pursuant to this Agreement have been duly authorized, and, when issued and
delivered by the Company against payment therefor pursuant to this Agreement and
the resolutions of the Board of Trustees and the duly authorized committee
thereof authorizing their issuance, the Securities will be validly issued, fully
paid and nonassessable;
(v) The information in the Prospectus under the heading "Description of
Shares of Beneficial Interest" in the Prospectus and "Supplemental Description
of Shares of Beneficial Interest" in the Prospectus Supplement, to the extent
that it constitutes matters of Maryland law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed by such counsel
and is correct in all material respects;
B-1
(vi) The Securities conform in all material respects as to matters of
Maryland law to the description thereof contained under the caption "Description
of Shares of Beneficial Interest" in the Prospectus and "Supplemental
Description of Shares of Beneficial Interest" in the Prospectus Supplement and
the form of certificate evidencing the Securities is in due and proper form in
accordance with Title 8;
(vii) The issuance of the Securities is not subject to any preemptive
or similar rights arising under Title 8, the Declaration of Trust or the Bylaws
of the Company;
(viii) No authorization, approval, consent or order of any court or
governmental authority or agency of the State of Maryland is required in
connection with the offering, issuance or sale of the Securities to the
Underwriter, except such as may be required under the 1933 Act or the 1933 Act
Regulations or securities laws or regulations of any state or other
jurisdiction;
(ix) This Agreement has been duly authorized by all necessary trust
action of the Company, executed and, so far as is known to us, delivered by the
Company;
(x) The execution and filing of Articles Supplementary relating to the
Securities (the "Articles Supplementary") have been duly authorized by the
Company and the Articles Supplementary have been executed in accordance with
Title 8 and have been filed with the SAT; and
(xi) The execution, delivery and performance of this Agreement, the
consumma tion of the transactions contemplated herein and the compliance by the
Company with its obligations hereunder will not result in any violation of (A)
the provisions of the Amended and Restated Declaration of Trust or Bylaws of the
Company or (B) any applicable Maryland law or administrative regulation or, to
the best knowledge of such counsel, administrative or court decree of the State
of Maryland, except with respect to clause (B), such violations as would not
have a material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, and subject, in the case of clauses (A) and (B), to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
In giving these opinions, Ballard Spahr Andrews & Ingersoll, LLP may
state that such opinions are limited to the laws of the States of Maryland and
may rely (1) as to all matters of fact, upon certificates and written statements
of officers and employees of and accountants for the Company and (2) as to the
qualification and good standing of the Company or any of its subsidiaries in any
other jurisdiction, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
B-2
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
PLACEMENT AGENCY AGREEMENT
Dated: February 25, 2002
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
PLACEMENT AGENCY AGREEMENT
February 25, 2002
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), and Vornado Realty L.P., a Delaware limited partnership (the
"Operating Partnership"), each confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch" or the
"Placement Agent"), to act as placement agent for the Company with respect to
the issue and sale by the Company to, and the purchase by, Cohen & Steers
Quality Income Realty Fund, Inc., a Maryland corporation (the "Fund"), of
884,543 common shares of the Company (the "Common Shares" or the "Securities").
It is contemplated that the Securities will be issued by the Company to
the Fund at a purchase price per share of $42.96, representing aggregate gross
proceeds to the Company of $37,999,967.28. In acting as the Placement Agent,
Merrill Lynch will seek to place the securities with the Fund on a best efforts
basis, acting as the Company's agent and not as a principal in the placement of
the Securities. Merrill Lynch may separately engage, at its own expense and with
the prior approval of the Company, sub-agents as it may deem necessary or
appropriate.
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 Common
Shares, 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 base 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 base prospectus is amended or supplemented on
or prior to the date on which the Prospectus Supplement is first filed
2
pursuant to Rule 424(b), the term "Prospectus" shall refer to the base
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.
As used herein, the term "subsidiary" means a corporation, a
partnership, or limited liability company, a majority of the outstanding voting
stock, partnership or membership interests, as the case may be, of which is
controlled, directly or indirectly, by the Company, the Operating Partnership,
or by one or more other subsidiaries of the Company or the Operating
Partnership.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Placement Agent as of the date hereof, and as of
the Closing Time referred to in Section 2(b) hereof, and agrees with the
Placement Agent, as follows:
(i) Incorporated Documents. The documents incorporated by reference in
the Registration Statement and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement and the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Placement Agent
expressly for use in the Registration Statement or the Prospectus, in each
case as amended or supplemented, relating to such Common Shares;
3
(ii) Compliance with Registration Requirements. The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the 1933 Act and the 1933
Act Regulations and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by the Placement Agent expressly for use in the
Prospectus as amended or supplemented relating to such Common Shares;
(iii) No Material Adverse Change in Business. Neither the Company nor
any of its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, there has
not been any change in the capitalization or long-term debt of the Company
or any material adverse change in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(iv) Good Standing of the Company. The Company is a real estate
investment trust duly formed and existing under the laws of the State of
Maryland in good standing with the State Department of Assessments and
Taxation of Maryland, with trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign organization to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole;
(v) Qualification as a REIT. The Company is organized in conformity
with the requirements for qualification as a real estate investment trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and currently intends to operate in a manner which allows it to
continue to meet such requirements;
(vi) Good Standing of the Operating Partnership. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware and
has partnership power and authority to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material
4
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Operating Partnership; all of
the issued and outstanding limited partnership interests in the Operating
Partnership have been duly authorized and validly issued and are fully paid
and nonassessable; the Company is the sole general partner of, and owned an
approximately 86% common limited partnership interest in, the Operating
Partnership as of September 30, 2001;
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company,
other than the Operating Partnership, which is covered in paragraph (vi)
above, has been duly formed and is validly existing in good standing under
the laws of the jurisdiction of its organization and has power and
authority to own, lease and operate its properties and to conduct its
business substantially as described in the Prospectus and is duly qualified
as a foreign organization to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company or the Operating Partnership,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except as would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole and except as disclosed in the Prospectus;
(viii) Capitalization. The Company has an authorized capitalization as
set forth in its Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2001 (except for subsequent issuances, if any, pursuant
to this Agreement or pursuant to the terms of reservations, agreements or
employee benefit plans, including, without limitation, the Vornado Realty
Trust Omnibus Share Plan, dividend reinvestment plans and employee or
director stock option plans, the redemption of units of the Operating
Partnership or the exercise of options outstanding on the date hereof), and
all of the issued and outstanding shares of beneficial interest of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable;
(ix) Authorization and Description of Securities. The Common Shares
have been duly authorized, and, when the Common Shares are issued and
delivered to the Fund pursuant to the Purchase Agreement between the
Company and the Fund dated the date hereof (the "Purchase Agreement"), such
Common Shares will be duly and validly issued and fully paid and
nonassessable; the Common Shares conform to the description thereof
contained in the Prospectus under the captions "Description of Shares of
Beneficial Interest" and "Supplemental Description of Shares of Beneficial
Interest";
(x) Absence of Conflicts and Defaults. The issue and sale of the
Common Shares and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary trust action and, except
as would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries taken as a whole, will not conflict with or
result in a breach or violation of any of the
5
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Amended and
Restated Declaration of Trust, as amended, or Amended and Restated Bylaws
of the Company or any statute or any order, rule or regulation of any court
or governmental authority, agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Common Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been, or will have been
prior to the Closing Time (as defined below), obtained under the 1933 Act
and the 1933 Act Regulations;
(xi) Authorization of this Agreement. This Agreement has been duly
authorized by all necessary trust action of the Company and all necessary
partnership action of the Operating Partnership and has been executed and
delivered by the Company and the Operating Partnership;
(xii) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which
have not been so filed;
(xiii) No Violations or Defaults. Neither the Company nor any of its
subsidiaries is in violation of its organizational documents or bylaws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
or assets may be bound, which default would have a material adverse effect
on the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole;
(xiv) Accuracy of Certain Descriptions. The statements set forth in
the Prospectus under the captions "Description of Shares of Beneficial
Interest", "Supplemental Description of the Shares of Beneficial Interest",
"Federal Income Tax Considerations" and "Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair summaries; Investment Company
Act. Neither the Company nor the Operating Partnership is subject to
registration as an "investment company" under the Investment Company Act;
(xv) Independent Public Accountants. Each of (a) Deloitte & Touche
LLP, who has certified certain financial statements and financial statement
schedules of the Company and its
6
subsidiaries included or incorporated by reference in the Registration
Statement, and (b) Arthur Andersen LLP, who has certified certain financial
information relating to Charles E. Smith Commercial Realty L.P. contained
in the Company's Current Report on Form 8-K dated October 19, 2001, which
financial information is incorporated by reference into the Prospectus, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations;
(xvi) Financial Statements. The financial statements and the financial
statement schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of 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;
(xvii) Title to Property. Except as otherwise disclosed in the
Prospectus, and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole:
(i) each of the Company and its subsidiaries has good and marketable title
to all properties and assets described in the Prospectus as owned by such
party, in each case free of all liens, encumbrances and defects; (ii) all
of the leases under which the Company or any of its subsidiaries holds or
uses real property or assets as a lessee are in full force and effect, and
neither the Company nor any of its subsidiaries is in material default in
respect of any of the terms or provisions of any of such leases and no
claim has been asserted by anyone adverse to any such party's rights as
lessee under any of such leases, or affecting or questioning any such
party's right to the continued possession or use of the leased property or
assets under any such leases; (iii) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets of the
Company or any of its subsidiaries that are required to be disclosed in the
Prospectus are disclosed therein; (iv) neither the Company, any of its
subsidiaries nor, to the knowledge of the Company, any lessee of any
portion of any such party's properties is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases its
properties and neither the Company nor any of its subsidiaries knows of any
event which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases; (v) no tenant under
any lease pursuant to which the Company or any of its subsidiaries leases
its properties has an option or right of first refusal to purchase the
premises leased thereunder; (vi) to the best of its 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
7
action that will in any manner affect the size or use of, improvements or
construction on or access to the properties of the Company or any of its
subsidiaries;
(xviii) Environmental Laws. Except as otherwise disclosed in the
Prospectus, or as is not reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole:
a. each of the Company and its subsidiaries is in compliance with
all applicable laws relating to pollution or the discharge of materials into the
environment, including common law relating to damage to property or injury to
persons ("Environmental Laws"), each of the Company and its subsidiaries
currently holds all governmental authorizations required under Environmental
Laws in order to conduct their businesses as described in the Prospectus, and
neither the Company nor any of its subsidiaries has any basis to believe that
any such governmental authorization may be modified, suspended or revoked, or
cannot be renewed in the ordinary course of business;
b. there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, threatened release, or disposal of any material (including
radiation and noise), that could form the basis of any claim (whether by a
governmental authority or other person or entity) under Environmental Laws for
cleanup costs, damages, penalties, fines, or otherwise, against any of the
Company or its subsidiaries, or against any person or entity whose liability for
such claim may have been retained by any of the Company or its subsidiaries,
whether by contract or law; and
c. the Company and its subsidiaries have fully disclosed to the
Placement Agent or counsel for the Placement Agent all studies, reports,
assessments, audits and other information in their possession or control
relating to any pollution or release, threatened release or disposal of
materials regulated under Environmental Laws on, at, under, from or transported
from any of their currently or formerly owned, leased or operated properties,
including, without limitation, all information relating to underground storage
tanks and asbestos containing materials.
(xix) No Stabilizing Actions. Neither the Company nor the Operating
Partnership has taken, and neither the Company nor the Operating
Partnership will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Shares.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Placement Agent or to
counsel for the Placement Agent shall be deemed a representation and warranty by
the Company to the Placement Agent as to the matters covered thereby.
SECTION 2. Placement Agent Fees.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
pay Merrill Lynch a fee (the "Fee") as compensation in full by the Company,
based upon the aggregate amount of Securities sold, as calculated
8
in accordance with the provisions of this Section for its services pursuant to
this Agreement. The Fee will equal 5.125% of the purchase price of all
Securities sold to the Fund pursuant to this Agreement.
(b) On the date on which the Fund purchases the Securities from the
Company in accordance with this Agreement (the "Closing Time"), but in no event
prior to the Company's receipt of the purchase price for the Securities, the
Company shall pay the Fee to the Placement Agent in cash by wire transfer of
immediately available funds to a bank account designated by the Placement Agent.
SECTION 3. Covenants of the Company. The Company covenants with the
Placement Agent as follows:
(a) Delivery of Registration Statements. The Company has furnished or
will deliver to the Placement Agent and counsel for the Placement Agent, without
charge, copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of experts. The
copies of the Registration Statement and each amendment thereto furnished to the
Placement Agent 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 Common Shares, the Company will inform
the Placement Agent of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Placement Agent
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 Placement Agent or counsel to the Placement Agent shall reasonably object
(it being understood that the terms "amendment" and "supplement" do not include
documents filed by the Company pursuant to the 1934 Act).
(b) Delivery of Prospectus. The Company will furnish to the Placement
Agent, without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Placement Agent may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Placement Agent 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 Common Shares as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Common Shares, any event shall occur or condition shall exist as a result
of which it is necessary for the Company to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend the Registration Statement
9
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
Placement Agent such number of copies of such amendment or supplement as the
Placement Agent may reasonably request.
(d) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(e) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Common Shares 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 Common Shares on the New York Stock Exchange.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and printing of this Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Common Shares, (iii) the preparation, issuance and
delivery of the certificates for the Common Shares to the Fund, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Common Shares to the Fund, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification,
if any, of the Common Shares under state securities laws, including filing fees
and the reasonable fees and disbursements of counsel for the Placement Agent 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
Placement Agent of the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses of any transfer agent or registrar for the Common
Shares, (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Placement Agent 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 Common Shares and (ix) the fees and expenses
incurred in connection with the listing of the Common Shares on the New York
Stock Exchange. It is understood, however, that, except as provided in this
Section and Sections 5(i) and 6 hereof, the Placement Agent will pay all of its
own costs and expenses, including the fees of its counsel.
(b) Termination of Agreement. If this Agreement is terminated by the
Placement Agent in accordance with the provisions of Section 5 or Section
9(a)(i), the Company shall reimburse the Placement Agent for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Placement Agent.
SECTION 5. Conditions of Placement Agent's Obligations. The obligations
of the Placement Agent hereunder are subject to the accuracy of the
representations and warranties of the Company
10
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. No stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Placement
Agent. 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) Opinion of Counsel for Company. At Closing Time, the Placement
Agent shall have received the opinion, dated as of Closing Time, of Sullivan &
Cromwell, counsel for the Company, in form and substance reasonably satisfactory
to counsel to the Placement Agent, to the effect set forth in Exhibit A.
(c) Opinion of Special Maryland Counsel for Company. At Closing Time,
the Placement Agent shall have received the opinion, dated as of Closing Time,
of Ballard Spahr Andrews & Ingersoll LLP, special Maryland counsel for the
Company, in form and substance reasonably satisfactory to counsel to the
Placement Agent, to the effect set forth in Exhibit B.
(d) Opinion of Counsel for Placement Agent. At Closing Time, the
Placement Agent shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Placement
Agent, with respect to the matters set forth in clauses (i), (v) and (vi) in the
opinion and (i) in the letter in Exhibit A hereto. In giving such opinion such
counsel may state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, and the Placement Agent shall have
received a certificate of the Chairman or President, and the Executive Vice
President - Finance and Administration, Chief Financial Officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the best of such officers' knowledge, are pending or are
contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Placement Agent shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the Placement
Agent, containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
11
In addition, at the time of the execution of this Agreement, the
Placement Agent shall have received from Arthur Andersen LLP a letter, in form
and substance satisfactory to the Placement Agent, containing statements and
information as may be requested by the Placement Agent and counsel for the
Placement Agent, with respect to certain financial information relating to
Charles E. Smith Commercial Realty L.P. contained in the Company's Current
Report on Form 8-K dated October 19, 2001, which financial information is
incorporated by reference into the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Placement Agent
shall have received from each of Deloitte & Touche LLP and Arthur Andersen LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their respective letters furnished pursuant to subsection (f)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(i) Additional Documents. At Closing Time counsel for the Placement
Agent 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 Placement Agent
and counsel for the Placement Agent.
(j) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Placement Agent by notice to the Company
at any time at or prior to Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Placement Agent. The Company and the Operating
Partnership each agree to indemnify and hold harmless the Placement Agent and
each person, if any, who controls the Placement Agent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
12
(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) below, the fees and disbursements of counsel chosen
by the Placement Agent), 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
Placement Agent expressly for use in the Registration Statement (or any
amendment thereto), or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers. The Placement Agent agrees to indemnify and hold harmless
the Company, the Operating Partnership, their respective trustees or partners,
each of the officers who signed the Registration Statement, and each person, if
any, who controls the Company or the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment thereto) in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by the Placement Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Placement Agent,
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
13
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into, (iii) such
indemnifying party, if it has not theretofore paid such reimbursement, is
requested again to pay reimbursement at least five, but not more than ten, days
prior to such settlement being entered into, and (iv) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Placement Agent 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
Placement Agent 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
Placement Agent 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 Fee and any discounts or commissions received by the
Placement Agent.
The relative fault of the Company on the one hand and the Placement
Agent 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 Placement Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Placement Agent 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.
14
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 Placement Agent
shall not be required to contribute any amount in excess of the amount by which
the total price of the Securities placed by it exceeds the amount of any damages
which the Placement Agent has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Placement Agent 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 Placement
Agent, and each trustee, or partner, as the case may be, of the Company or the
Operating Partnership, each officer of the Company 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
Placement Agent or any controlling person of the Placement Agent, or by or on
behalf of the Company or any officer or trustee or partner or controlling person
of the Company of the Operating Partnership, and shall survive delivery of the
Securities to the Fund.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Placement Agent may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in or affecting the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Placement Agent, impracticable or inadvisable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange has been
suspended or
15
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of such exchanges or by
order of the Commission or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. 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 Placement
Agent shall be directed to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated at North Tower, 4 World Financial Center, New York, New York
10080, attention of Mark Landau; 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 11. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Placement Agent, the Company, the Operating Partnership
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Placement Agent, 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 Placement Agent, 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 Placement Agent shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. 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 13. 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.
16
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 Placement Agent, the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
VORNADO REALTY TRUST
By:
/s/ STEVEN ROTH
-------------------------------------
Name: Steven Roth
Title: Chief Executive Officer
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By:
/s/ STEVEN ROTH
-------------------------------------
Name: Steven Roth
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
/s/ MARK LANDAU
-------------------------------------
Authorized Signatory
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is a real estate investment trust duly organized and
existing under the laws of the State of Maryland and is in good standing with
the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the Purchase Agreement;
(iii) The Operating Partnership is a limited partnership duly organized
and existing under the laws of the State of Delaware and has the partnership
power and authority to own, lease and operate its properties and conduct its
business substantially as described in the Prospectus;
(iv) The Common Shares have been duly authorized and validly issued and
are fully paid and nonassessable;
(v) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership;
(vi) The Registration Statement has been declared effective under the
1933 Act, and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending under the 1933
Act;
(vii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the State of New York for the issuance, sale and
delivery of the Common Shares by the Company to the Fund have been obtained or
made; provided, however, that for purposes of this paragraph (viii), such
counsel need not express any opinion with respect to state securities laws that
may be applicable to the issuance, sale or delivery of the Common Shares;
(viii) The execution and delivery by the Company and the Operating
Partnership of the Purchase Agreement, the issuance of the Common Shares and the
sale of the Common Shares by the Company to the Fund pursuant to the Purchase
Agreement do not, and the performance by the Company of its obligations under
this Agreement will not, (A) violate the Company's Amended and Restated
Declaration of Trust, as amended, or the Company's Amended and Restated Bylaws
or the certificate of limited partnership of the Operating Partnership, (B)
violate any court order or administrative decree known to such counsel or any
Federal law of the United States or law of the State of New York applicable to
the Company or the Operating Partnership,
A-1
or (C) result in a default under or breach of any agreement filed as an exhibit
to the Company's most recent Annual Report on Form 10-K and any subsequent
Quarterly Report on Form 10-Q or Current Report on Form 8-K under Item
601(b)(10) of Regulation S-K, subject in the case of clauses (A), (B) and (C) of
this paragraph (viii), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; provided,
however, that for purposes of this paragraph (ix), such counsel need not express
any opinion with respect to Federal or state securities laws, other antifraud
laws, fraudulent transfer laws or the Employee Retirement Income Security Act of
1974 and related laws;
(ix) Such counsel shall confirm (i) the opinion that, commencing with
its taxable year ending December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a REIT under the Code, and
its proposed method of operation will enable it to satisfy the requirements for
qualification and taxation as a REIT and (ii) that the discussion set forth
under the caption "Federal Income Tax Considerations" in the Prospectus
Supplement dated February 25, 2002 to the extent it describes matters of law or
legal conclusions, is correct in all material respects; in providing such
opinion, such counsel may rely (i) upon the statements and representations
contained in certificates provided by the Company and Two Penn Plaza REIT, Inc.,
(ii) without independent investigation, upon statements and representations
contained in a certificate provided by Alexander's, Inc., (iii) without
investigation, upon an opinion of Shearman & Sterling concerning the
qualification of Alexander's as a REIT for federal income tax purposes and (iv)
upon any other certificates or opinions of counsel as deemed necessary or
appropriate in rendering such opinion and subject to an analysis of the Code,
Treasury Regulations thereunder, judicial authority and current administrative
rulings and such other laws and facts as deemed relevant and necessary; and
(x) Neither the Company nor the Operating Partnership is an "investment
company", as such term is defined in the Investment Company Act of 1940.
In giving this opinion, Sullivan & Cromwell may state that such opinion
is limited to the Federal laws of the United States of America, the laws of the
State of New York, the Laws of the State of Maryland and the Revised Uniform
Limited Partnership Act of the State of Delaware, and such counsel express no
opinion as to the effect of the laws of any other jurisdiction; and such counsel
may rely (1) as to certain matters, upon information obtained from public
officials, officers of the Company and its subsidiaries and other sources
believed by them to be responsible and (2) as to all matters of Maryland law, on
the opinion of Ballard Spahr Andrews & Ingersoll, LLP, and such counsel's
opinion may be subject to the same assumptions, qualifications and limitations
with respect to such matters as are contained in such opinion of Ballard Spahr
Andrews & Ingersoll, LLP. Such counsel may assume that the certificates for the
Common Shares conform to the specimen thereof examined by them and have been
duly countersigned and registered by a registrar and transfer agent of the
Common Shares, that this Agreement has been duly authorized, executed and
delivered by the Placement Agent and that
A-2
the signatures on all documents examined by them are genuine, assumptions which
such counsel need not independently verify.
(i) On the basis of the information which was reviewed in the course
of the performance of the services referred to in their opinion considered
in the light of their understanding of the applicable law (including the
requirements of Form S-3 and the character of the prospectus contemplated
thereby) and the experience they have gained through their practice under
the 1933 Act, such counsel are of the opinion that each part of the
Registration Statement, when such part became effective, and the
Prospectus, as of the date of the Prospectus Supplement, appeared on their
face to be appropriately responsive, in all material respects relevant to
the offering of the Common Shares, to the requirements of the 1933 Act and
the applicable 1933 Act Regulations; and nothing that came to their
attention in the course of their review has caused them to believe that,
insofar as relevant to the offering of the Common Shares, any part of the
Registration Statement, when such part became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of the date of the Prospectus
Supplement, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; also, nothing that has come to such counsel's attention in the
course of certain procedures (as described in such opinion) has caused such
counsel to believe that the Prospectus, as of the date and time of delivery
of such letter, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that such opinion may state that
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process
are such that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those made under the
captions "Description of Shares of Beneficial Interest" and "Supplemental
Description of Shares of Beneficial Interest" in the Prospectus Supplement
insofar as they relate to the provisions of documents therein described,
and that such does not express any opinion or belief as to the financial
statements or schedules or other financial data derived from accounting
records contained in the Registration Statement or the Prospectus; and
(ii) Such counsel does not know of any litigation or governmental
proceeding instituted or threatened against the Company or any of its
consolidated subsidiaries that would be required to be disclosed in the
Prospectus and is not so disclosed; and such counsel does not know of any
documents that are required to be filed as exhibits to the Registration
Statement and are not so filed or of any documents that are required to be
summarized in the Prospectus that are not so summarized.
A-3
EXHIBIT B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company is a real estate investment trust duly organized and
existing under and by virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has the trust power to own, lease and operate its
properties and to conduct its business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the Purchase Agreement;
(iii) The Company has an authorized capitalization as set forth in the
Prospectus under the caption" Capitalization" (except for subsequent issuances,
if any, pursuant to this Agreement or pursuant to the terms of reservations,
agreements or employee benefit plans, including, without limitation, the Vornado
Realty Trust Omnibus Share Plan, dividend reinvestment plans and employee or
director stock option plans, or the exercise of options outstanding on the date
hereof, and in each case referred to in the Prospects), and all of the issued
and outstanding shares of beneficial interest of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; the issued
and outstanding shares of beneficial interest of the Company have been duly
authorized and validly issued and are fully paid and nonassessable; and none of
the outstanding shares of beneficial interest of the Company was issued in
violation of any preemptive rights of any shareholder of the Company arising
under Title 8 of the Corporations and Associations Article of the Annotated Code
of Maryland ("Title 8") or the Declaration of Trust or Bylaws of the Company;
(iv) The issuance and sale of the Common Shares to the Fund pursuant to
the Purchase Agreement have been duly authorized, and, when issued and delivered
by the Company against payment therefor pursuant to this Agreement and the
resolutions of the Board of Trustees and the duly authorized committee thereof
authorizing their issuance, the Common Shares will be validly issued, fully paid
and nonassessable;
(v) The information in the Prospectus under the heading "Description of
Shares of Beneficial Interest" in the Prospectus and "Supplemental Description
of Shares of Beneficial Interest" in the Prospectus Supplement, to the extent
that it constitutes matters of Maryland law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed by such counsel
and is correct in all material respects;
(vi) The Common Shares conform in all material respects as to matters
of Maryland law to the description thereof contained under the caption
"Description of Shares of Beneficial Interest" in the Prospectus and
"Supplemental Description of Shares of Beneficial Interest" in the Prospectus
Supplement and the form of certificate evidencing the Common Shares is in due
and proper form in accordance with Title 8;
B-1
(vii) The issuance of the Common Shares is not subject to any
preemptive or similar rights arising under Title 8, the Declaration of Trust or
the Bylaws of the Company;
(viii) No authorization, approval, consent or order of any court or
governmental authority or agency of the State of Maryland is required in
connection with the offering, issuance or sale of the Common Shares to the Fund,
except such as may be required under the 1933 Act or the 1933 Act Regulations or
securities laws or regulations of any state or other jurisdiction;
(ix) This Agreement has been duly authorized by all necessary trust
action of the Company, executed and, so far as is known to us, delivered by the
Company;
(x) The execution and filing of Articles Supplementary relating to the
Common Shares (the "Articles Supplementary") have been duly authorized by the
Company and the Articles Supplementary have been executed in accordance with
Title 8 and have been filed with the SAT; and
(xi) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and the compliance by the
Company with its obligations hereunder will not result in any violation of (A)
the provisions of the Amended and Restated Declaration of Trust or Bylaws of the
Company or (B) any applicable Maryland law or administrative regulation or, to
the best knowledge of such counsel, administrative or court decree of the State
of Maryland, except with respect to clause (B), such violations as would not
have a material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, and subject, in the case of clauses (A) and (B), to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
In giving these opinions, Ballard Spahr Andrews & Ingersoll, LLP may
state that such opinions are limited to the laws of the States of Maryland and
may rely (1) as to all matters of fact, upon certificates and written statements
of officers and employees of and accountants for the Company and (2) as to the
qualification and good standing of the Company or any of its subsidiaries in any
other jurisdiction, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
B-2
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of February 25,
2002, is between Cohen & Steers Quality Income Realty Fund, Inc. (the
"PURCHASER") and Vornado Realty Trust, a Maryland real estate investment trust
(the "SELLER").
WHEREAS, the PURCHASER, desires to purchase from SELLER, and SELLER
desires to issue and sell to PURCHASER, 884,543 of its common shares of
beneficial interest, par value $0.04 per share (the "Shares"); and
WHEREAS, the PURCHASER intends to enter into an underwriting agreement
(the "Underwriting Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and certain underwriters named therein
(collectively, the "Underwriters") with respect to the issue and sale by the
PURCHASER and the purchase by the Underwriters of common shares of the PURCHASER
in an amount as specified therein, such proceeds being sufficient to consummate
the transactions contemplated by this Agreement (the "Financing").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
PURCHASER hereby agrees to purchase from SELLER, and SELLER agrees to issue and
sell to PURCHASER, the Shares at a price per share of $42.96 for an aggregate
purchase price of $37,999,967.28 (the "Purchase Price").
2. Representations and Warranties of PURCHASER. The PURCHASER
represents and warrants that:
(a) Due Authorization. The PURCHASER is duly authorized to purchase
the Shares. This Agreement has been duly authorized, executed and delivered
by the PURCHASER and constitutes a legal, valid and binding agreement of
the PURCHASER, enforceable against the PURCHASER in accordance with its
terms except as may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights or remedies of creditors or (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which any
proceeding therefor may be brought.
(b) Due Organization and Authority. The PURCHASER has been duly
organized and is validly existing and in good standing under the laws of
Maryland and has all requisite corporate or similar power and authority to
own,
lease and operate its properties and assets and to carry on its business as
currently conducted.
(c) Prospectus and Prospectus Supplement. The PURCHASER has received a
copy of SELLER's Prospectus dated February 11, 1998 and Prospectus
Supplement dated February 25, 2002 (collectively, the "Prospectus").
(d) Not a Party in Interest; Disqualified Person. With respect to
SELLER, PURCHASER is not a "party in interest" as such phrase is used in
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or a "disqualified person" as such phrase is used in the Internal Revenue
Code of 1986, as amended ("Code").
(e) Not a Prohibited Transaction. The purchase of the Shares from
SELLER will not give rise to a nonexempt "prohibited transaction" under
ERISA or the Code.
3. Representations and Warranties of SELLER. SELLER represents and
warrants that:
(a) Due Authorization. This Agreement has been duly authorized,
executed and delivered by SELLER and constitutes a legal, valid and binding
agreement of SELLER, enforceable against SELLER in accordance with its
terms except as may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights or remedies of creditors or (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which any
proceeding therefor may be brought.
(b) Organization and Authority. SELLER has been duly organized and is
validly existing in good standing under the laws of the State of Maryland,
with full trust power and authority to own or lease and occupy its
properties and conduct its business as described in the Prospectus.
(c) Issuance of the Shares. The Shares have been duly and validly
authorized and, when issued and delivered pursuant to this Agreement, will
be fully paid and nonassessable and will be listed, subject to notice of
issuance, on the New York Stock Exchange effective as of the Closing (as
defined in Paragraph 5 of this Agreement).
(d) Absence of Conflicts. Except as would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of SELLER and its subsidiaries taken as a
whole, the execution, delivery and performance of this Agreement and the
consummation of
2
transactions contemplated herein do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the SELLER.
4. Conditions to Obligations of the Parties. The obligations of the
parties hereto to effect the transactions contemplated by this Agreement shall
be subject to the satisfaction or waiver at or prior to the Closing Time of the
following conditions:
(a) each of the representations and warranties of the parties hereto
shall be true and correct in all material respects; and
(b) the PURCHASER shall have received the proceeds of the Financing on
terms that are consistent with the Underwriting Agreement.
5. Closing. The transactions contemplated hereby shall be consummated
on the day that Cohen & Steers Quality Income Realty Fund, Inc. receives payment
for the issuance of securities pursuant to the Underwriting Agreement, or such
other time as shall be agreed upon by the PURCHASER and the SELLER (such time
and date of payment and delivery being herein called the "Closing"). At the
Closing, SELLER shall cause its transfer agent to deposit the Shares with the
Depositary Trust Company, which shall deliver the Shares to a custodian on
behalf of the PURCHASER. Upon such delivery, the PURCHASER shall wire transfer
to an account designated by SELLER immediately available funds in the amount of
the Purchase Price for the Shares.
6. Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only in a writing that is executed by each of the parties hereto.
8. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
SELLER
By:
/s/ STEVEN ROTH
--------------------------
Name: Steven Roth
Title: Chief Executive Officer
COHEN & STEERS QUALITY INCOME REALTY FUND, INC.
By:
/s/ ROBERT STEERS
--------------------------
Name: Robert Steers
Title: Chairman
February 28, 2002
Vornado Realty Trust,
210 Route 4 East,
Paramus, New Jersey 07652.
Dear Sirs:
We have acted as your counsel in connection with the sale by you today
pursuant to the two Prospectus Supplements dated February 25, 2002 (the
"Prospectus Supplements") to the Prospectus dated February 11, 1998, of
1,398,742 shares of common stock par value $.04 per share, of Vornado Realty
Trust ("Vornado").
In rendering this opinion, we have reviewed such documents as we have
considered necessary or appropriate. In addition, in rendering this opinion, we
have relied (i) as to certain factual matters upon the statements and
representations contained in the certificates provided to us by Vornado, Two
Penn Plaza REIT, Inc. ("Two Penn") and AmeriCold Corporation ("AmeriCold"), each
dated February 28, 2002 (attached as Exhibits A, B and C, and collectively, the
"Vornado Certificates"), (ii) without independent investigation, as to certain
factual matters upon the statements and representations contained in the
certificates provided to us by Alexander's, Inc. ("Alexander's") dated February
28, 2002, and Charles E. Smith Commercial Realty L.P. ("Smith"), dated November
21, 2001 (attached as Exhibits D and E and, together with the Vornado
Certificates, the "Certificates") and (iii) without independent investigation,
upon the opinion of Shearman & Sterling, dated February 28, 2002, concerning the
qualification of Alexander's as a real estate investment trust (a "REIT") for
federal income tax purposes for each taxable year commencing with its taxable
year ending December 31, 1995 (attached as Exhibit F, the "Shearman & Sterling
Opinion"). We understand that, in providing its Certificates, Vornado is relying
upon certificates, dated February 28, 2002, provided to it by David R.
Greenbaum.
In rendering this opinion we have also assumed, with your approval,
that (i) the statements and representations made in the Certificates are true
and correct, (ii) the Certificates have been executed by appropriate and
authorized officers of Vornado, Two
Vornado Realty Trust -2-
Penn, AmeriCold, Smith and Alexander's and (iii) the assumptions and conditions
underlying the Shearman & Sterling Opinion are true and correct.
Based on the foregoing and in reliance thereon and subject thereto and
on an analysis of the Code, Treasury Regulations thereunder, judicial authority
and current administrative rulings and such other laws and facts as we have
deemed relevant and necessary, we hereby confirm our opinion that commencing
with its taxable year ending December 31, 1993, Vornado has been organized in
conformity with the requirements for qualification as a REIT under the Code, and
its proposed method of operation will enable it to satisfy the requirements for
qualification and taxation as a REIT. This opinion represents our legal
judgment, but it has no binding effect or official status of any kind, an no
assurance can be given that contrary positions may not be taken by the Internal
Revenue Service or a court.
Vornado's qualification as a REIT will depend upon the continuing
satisfaction by Vornado and, given Vornado's current ownership interest in
Alexander's, AmeriCold and Two Penn, by each of Alexander's, AmeriCold and Two
Penn, of the requirements of the Code relating to qualification for REIT status,
which requirements include those that are dependent upon actual operating
results, distribution levels, diversity of stock ownership, asset composition,
source of income and record keeping. We do not undertake to monitor whether any
of Vornado, Alexander's, AmeriCold or Two Penn actually has satisfied or will
satisfy the various REIT qualification tests.
We hereby consent to the filing with the Securities and Exchange
Commission of this letter as an exhibit to Vornado's current report on Form 8-K
and the reference to us in the Prospectus Supplements under the caption "Federal
Income Tax Considerations". In giving such consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act.
Very truly yours,
/s/ SULLIVAN & CROMWELL