<PAGE> 1
As filed with the Securities and Exchange Commission on April 28, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
April 22, 1998
Date of Report (Date of earliest event reported)
VORNADO REALTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-11954 22-1657560
(State or other Jurisdiction (Commission (I.R.S. Employer
of Incorporation or Organization) File No.) Identification No.)
PARK 80 WEST, PLAZA II, SADDLE BROOK, NEW JERSEY 07663
(Address of Principal Executive Office)
(201) 587-1000
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
<PAGE> 2
Item 5. Other Events.
On April 22, 1998, Vornado Realty Trust ("Vornado") amended its Amended
and Restated Declaration of Trust, as amended (the "Declaration of Trust"), to
increase the number of Vornado's authorized common shares of beneficial
interest, $.04 par value per share ("Common Shares"), from 100,000,000 to
125,000,000. As so amended, Vornado's Declaration of Trust authorizes the
issuance of up to 290,000,000 shares, consisting of 125,000,000 Common Shares,
20,000,000 preferred shares of beneficial interest, no par value per share, and
145,000,000 excess shares of beneficial interest, $.04 par value per share.
On April 23, 1998, Vornado and Vornado Realty L.P. entered into an
Underwriting Agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") relating to the issuance and sale by Vornado of an aggregate
of 1,132,420 Common Shares at a price of $38.9067 per share, resulting in
aggregate proceeds to Vornado of $44,058,725 before payment of expenses by
Vornado estimated to be $175,000. Merrill Lynch intends to deposit such
1,132,420 Common Shares with the trustee of the Equity Investor Fund Cohen &
Steers Realty Majors Portfolio (A Unit Investment Trust).
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) - (b) Not applicable.
(c) Exhibits Required by Item 601 of Regulation S-K.
Exhibit No. Exhibit
----------- -------
1.1 Underwriting Agreement, dated April 23, 1998, among Vornado
Realty Trust, Vornado Realty L.P. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
3.1 Articles of Amendment of Declaration of Trust of Vornado
Realty Trust, as filed with the State Department of
Assessments and Taxation of Maryland on April 22, 1998.
<PAGE> 3
SIGNATURES
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
Dated: April 28, 1998 By: /s/ Irwin Goldberg
------------------
Irwin Goldberg
Vice President,
Chief Financial Officer
<PAGE> 4
EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
1.1 Underwriting Agreement, dated April 23, 1998, among Vornado
Realty Trust, Vornado Realty L.P. and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
3.1 Articles of Amendment of Declaration of Trust of Vornado Realty
Trust, as filed with the State Department of Assessments and
Taxation of Maryland on April 22, 1998.
<PAGE> 1
Exhibit 1.1
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
1,132,420 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
UNDERWRITING AGREEMENT
Dated: April 23, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
UNDERWRITING AGREEMENT............................................................................................1
<S> <C> <C>
SECTION 1. Representations and Warranties.......................................................3
(a) Representations and Warranties by the Company........................................3
(i) Incorporated Documents.......................................................3
(ii) Compliance with Registration Requirements....................................3
(iii) No Material Adverse Change in Business.......................................3
(iv) Good Standing of the Company.................................................4
(v) Qualification as a REIT......................................................4
(vi) Good Standing of the Operating Partnership...................................4
(vii) Good Standing of Subsidiaries................................................5
(viii) Capitalization...............................................................5
(ix) Authorization 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.............................................7
(xv) Investment Company Act.......................................................7
(xvi) Independent Public Accountants...............................................7
(xviii) Title to Property............................................................7
(xix) Environmental Laws...........................................................8
(xx) No Stabilizing Actions.......................................................9
(b) Officer's Certificates...............................................................9
SECTION 2. Sale and Delivery to the Underwriter; Closing........................................9
(a) Securities...........................................................................9
(b) Payment..............................................................................9
(c) Denominations; Registration.........................................................10
SECTION 3. Covenants of the Company............................................................10
(a) Delivery of Registration Statements.................................................10
(b) Delivery of Prospectus..............................................................10
(c) Continued Compliance with Securities Laws...........................................10
(d) Rule 158............................................................................11
(e) Use of Proceeds.....................................................................11
(f) Listing.............................................................................11
SECTION 4. Payment of Expenses.................................................................11
(a) Expenses. ..........................................................................11
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
(b) Termination of Agreement............................................................12
SECTION 5. Conditions of Underwriter's Obligations.............................................12
(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) Accountant's Comfort Letter.........................................................13
(g) Bring-down Comfort Letter...........................................................13
(h) Approval of Listing.................................................................13
(i) Additional Documents................................................................13
(j) Termination of Agreement............................................................14
(k) Trust Registration Statement........................................................14
SECTION 6. Indemnification.....................................................................14
(a) Indemnification of Underwriter......................................................14
(b) Indemnification of Company, Operating Partnership, Trustees,
Partners and Officers...............................................................15
(c) Actions against Parties; Notification...............................................15
(d) Settlement without Consent if Failure to Reimburse..................................16
SECTION 7. Contribution........................................................................16
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......................17
SECTION 9. Termination of Agreement............................................................18
(a) Termination; General................................................................18
(b) Liabilities.........................................................................18
SECTION 10. Notices.............................................................................18
SECTION 11. Parties.............................................................................18
SECTION 12. GOVERNING LAW AND TIME..............................................................19
SECTION 13. Effect of Headings..................................................................19
SCHEDULES
Schedule A - Pricing Information........................................................Sch A-1
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
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
</TABLE>
iii
<PAGE> 5
VORNADO REALTY TRUST
(a Maryland real estate investment trust)
1,132,420 Common Shares of Beneficial Interest
(Par Value $0.04 Per Share)
Underwriting Agreement
April 23, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Vornado Realty Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Underwriter"), with respect to the
issue and sale by the Company and the purchase by the Underwriter of the number
of Common Shares of Beneficial Interest, par value $0.04 per share, of the
Company ("Common Shares") set forth above. The aforesaid 1,132,420 Common Shares
to be purchased by the Underwriter are hereinafter called the "Securities".
The Underwriter intends to deposit the Securities with the trustee of
the Equity Investor Fund Cohen & Steers Realty Majors Portfolio (A Unit
Investment Trust) (the "Trust"), a registered unit investment trust under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), for
which Merrill Lynch, Pierce, Fenner & Smith Incorporated acts as sponsor and
depositor, in exchange for units in the Trust.
The Company is advised by you that the Underwriter proposes to deposit
the Securities with the trustee of the Trust in exchange for units in the Trust
(the "Offering") as soon after the execution and delivery hereof as in the
judgment of the Underwriter is advisable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3, including a
prospectus relating to the Common
<PAGE> 6
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.
For purposes of this Agreement, unless the context requires otherwise,
all references to "subsidiaries" shall include corporations in which the Company
owns all of the outstanding preferred stock and none of the common equity
("Preferred Stock Affiliates").
2
<PAGE> 7
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(b) hereof and agrees with the Underwriter,
as follows:
(i) Incorporated Documents. The documents incorporated by
reference in the Registration Statement and the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the 1933 Act
or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; 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,
3
<PAGE> 8
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, (A) there has not been any change in the capitalization or
long-term debt of the Company or any of its subsidiaries or any
material adverse change in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, and (B) except for regular
dividends on the Company's common shares or preferred shares, in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any of its shares of beneficial interest;
(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 the Company to continue to meet the requirements for
taxation as a REIT under the Code;
(vi) Good Standing of the Operating Partnership. Vornado
Realty L.P. (the "Operating Partnership") has been duly organized and
is validly existing as a limited partnership in good standing under the
laws of the State of Delaware and has partnership power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
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 of the Operating Partnership have been duly authorized and
validly issued and are fully paid and nonassessable; the Company is the
sole general partner of, and owned an approximately 91.1% limited
partnership interest in, the Operating Partnership as of April 22,
1998;
4
<PAGE> 9
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company, other than the Operating Partnership, which is covered in
paragraph (v) above, has been duly organized 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 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 (other than
Preferred Stock Affiliates) has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except
as 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 dis-
closed in the Prospectus;
(viii) Capitalization. As of April 22, 1998, the Amended and
Restated Declaration of Trust, as amended, of the Company authorized
the issuance of up to 290,000,000 shares, consisting of (A) 125,000,000
Common Shares, of which 82,191,005 Common Shares were issued and
outstanding (excluding Common Shares issuable upon the exercise of
outstanding options, the redemption of outstanding units of the
Operating Partnership and the conversion of outstanding $3.25 Series A
Convertible Preferred Shares of Beneficial Interest, liquidation
preference $50.00 per share ("Series A Convertible Preferred Shares")),
(B) 20,000,000 preferred shares of beneficial interest, no par value
per share, of which 5,789,315 Series A Convertible Preferred Shares
were issued and outstanding, and (C) 145,000,000 excess shares of
beneficial interest, par value $0.04 per share, of which none were
issued and outstanding; 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 of Common Shares. The Common Shares have
been duly authorized, and, when the Securities are issued and delivered
pursuant to this Agreement, such Securities will be duly and validly
issued and fully paid and nonassessable; the Common Shares conform to
the description thereof contained in the Registration Statement under
the caption "Description of Shares of Beneficial Interest" and the
Securities will conform to the description thereof contained in the
Prospectus under the caption "Description of Shares of Beneficial
Interest" as amended or supplemented with respect to such Securities;
(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
5
<PAGE> 10
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 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, obtained under the 1933 Act and the 1933 Act Regulations
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Common
Shares by the Underwriter;
(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
6
<PAGE> 11
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", "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 accu-
rate, complete and fair summaries;
(xv) Investment Company Act. Neither the Company nor any of
its subsidiaries is subject to registration as an "investment company"
under the Investment Company Act;
(xvi) Independent Public Accountants. Deloitte & Touche LLP,
who have certified certain financial statements and financial statement
schedules of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations;
(xvii) Financial Statements. The financial statements and the
financial statement schedules 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
7
<PAGE> 12
Company or any of its subsidiaries holds or uses real property or
assets as a lessee are in full force and effect, and neither the
Company nor any of its subsidiaries is in material default in respect
of any of the terms or provisions of any of such leases and no claim
has been asserted by anyone adverse to any such party's rights as
lessee under any of such leases, or affecting or questioning any such
party's right to the continued possession or use of the leased property
or assets under any such leases; (iii) all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties
and assets of the Company or any of its subsidiaries that are required
to be disclosed in the Prospectus are disclosed therein; (iv) neither
the Company, any of its subsidiaries nor, to the knowledge of the
Company, any lessee of any portion of any such party's properties is in
default under any of the leases pursuant to which the Company or any of
its subsidiaries leases its properties and neither the Company nor any
of its subsidiaries knows of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default under
any of such leases; (v) no tenant under any lease pursuant to which the
Company or any of its subsidiaries leases its properties has an option
or right of first refusal to purchase the premises leased thereunder;
(vi) to the best of its knowledge, each of the properties of the
Company or any of its subsidiaries complies with all applicable codes
and zoning laws and regulations; and (vii) neither the Company nor any
of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will in
any manner affect the size or use of, improvements or construction on
or access to the properties of the Company or any of its subsidiaries;
(xix) Environmental Laws. Except as specifically disclosed in
the Prospectus, or as is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries 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
8
<PAGE> 13
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 and its counsel all studies,
reports, assessments, audits and other information in their
possession or control relating to any pollution or release,
threatened release or disposal of materials regulated under
Environmental Laws on, at, under, from or transported from any
of their currently or formerly owned, leased or operated
properties, including, without limitation, all information
relating to underground storage tanks and asbestos containing
materials.
(xx) No Stabilizing Actions. Neither the Company nor the
Operating Partnership has taken, and neither the Company nor the
Operating Partnership will take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Common Shares.
(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) 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
Securities set forth in Schedule A.
(b) 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, 919 Third Avenue, New York, NY 10022 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").
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.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Underwriter may
request in writing at least one
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<PAGE> 14
full business day before the Closing Time. The certificates for the Securities
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.
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 its counsel, 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.
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 its counsel 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.
(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
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any
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<PAGE> 15
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 copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Securities, (viii) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriter in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities and (ix) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange. It is understood,
however, that, except as provided in this Section and Section 6 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of
its
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<PAGE> 16
counsel, stock transfer taxes on resale of any of the Securities by it, and any
advertising expenses connected with any offers of the Securities or of units of
the Trust 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 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 opinions, 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), (iv), (vi), (vii) and (xii) in
the opinion of Sullivan & Cromwell referred to in paragraph (b) above. 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
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<PAGE> 17
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,
President or Executive Vice President of the Company and of the Executive Vice
President, Finance and Administration, or 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 Underwriter shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Underwriter shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(h) 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 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
its counsel.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter 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
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<PAGE> 18
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
(k) Trust Registration Statement. No stop order suspending the
effectiveness of the registration statement on Form S-6 (File No. 333-45433)
filed by the Trust or any post-effective amendment thereto shall have been
issued under the 1933 Act and no order directed at any document incorporated by
reference therein shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened or, to the knowledge of the Underwriter,
contemplated by the Commission.
SECTION 6. Indemnification.
(a) Indemnification of 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 any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the 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;
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<PAGE> 19
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(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 any preliminary prospectus
or the Prospectus (or any amendment thereto) in reliance upon and in conformity
with written information furnished to the Company or the Operating Partnership
by the Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation,
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<PAGE> 20
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into, (iii) such indemnifying party, if it has not theretofore paid such
reimbursement, is requested again to pay reimbursement at least five, but not
more than ten, days prior to such settlement being entered into, and (iv) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriter on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriter, in each case as
set forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
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<PAGE> 21
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each trustee or partner, as the case may be, of the Company or the Operating
Partnership, each officer who signed the Registration Statement, and each
person, if any, who controls the Company 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 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.
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<PAGE> 22
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in or affecting the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries taken
as a whole, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to (x) commence or continue the
offering of the units of the Trust to the public, or (y) enforce contracts for
the sale of units of 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 either 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 either 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
Underwriter shall be directed to the Underwriter at North Tower, World Financial
Center, New York, New York 10281-1209, attention of Richard Saltzman; and
notices to the Company and the Operating Partnership shall be directed to it at
Park 80 West, Plaza II, Saddle Brook, NJ 07663, attention of the Executive Vice
President, Finance and Administration.
SECTION 11. Parties. This Agreement shall each 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
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<PAGE> 23
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 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.
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<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriter, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
VORNADO REALTY TRUST
By /s/ Joseph Macnow
---------------------------------------
Title: Executive Vice President,
Finance and Administration
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By /s/ Joseph Macnow
---------------------------------------
Title: Executive Vice President,
Finance and Administration
CONFIRMED AND ACCEPTED,
as of the date first above written.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ John C. Brady
-------------------------------------
Authorized Signatory
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<PAGE> 25
SCHEDULE A
VORNADO REALTY TRUST
1,132,420 Common Shares of Beneficial Interest
1. The purchase price per share for the Securities to be paid by the
Underwriter shall be $38.9067.
2. The Underwriter intends to deposit the Securities, valued at the last
reported sales price, with the trustee of the Trust in exchange for units in the
Trust. On April 23, 1998, the last reported sales price of the Common Shares was
$41.0625.
Sch A-1
<PAGE> 26
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 issuance and sale of the Securities to the Underwriter
pursuant to this Agreement has 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 authorizing their
issuance, the Securities will be validly issued, fully paid and
nonassessable;
(v) Such counsel does not know of any litigation or governmental
proceedings 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;
(vi) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Operating Partnership;
(vii) 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;
A-1
<PAGE> 27
(viii) 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;
(ix) The execution and delivery by the Company and the Operating
Partnership of this Agreement do not, and the issuance of the Securities
and the sale of the Securities by the Company to the Underwriter pursuant
to this Agreement and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions herein
contemplated will not (A) violate the Company's Amended and Restated
Declaration of Trust or Bylaws or the certificate of limited partnership of
the Operating Partnership or Vornado Finance L.P., a Delaware limited
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 contract, indenture, mortgage,
loan agreement, note, lease or other instrument filed as an exhibit to the
Registration Statement or as an exhibit to any current document
incorporated by reference therein to which the Company or any subsidiary is
a party or by which any of them may be bound, or to which any of their
property is subject, subject, in the case of clauses (A), (B) and (C) of
this paragraph (ix), 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 or fraudulent transfer laws;
(x) 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 dated February 11, 1998, as supplemented by the
discussion under the caption "Federal Income Tax Considerations" in the
Prospectus Supplement dated April 23, 1998, 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, (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;
A-2
<PAGE> 28
(xi) Neither the Company nor any of its subsidiaries is an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940; and
(xii) 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, 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 1933 Act
Regulations; and that 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 its date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; also, nothing that has come to such counsel's
attention in the course of certain procedures (as described in such
opinion) has caused such counsel to believe that the Prospectus, as of the
date and time of delivery of such opinion, contained any untrue statement
of a material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that such opinion
may state that the limitations inherent in the independent verification of
factual matters and the character of determinations involved in the
registration process are such that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
made under the caption "Description of Common Shares of Beneficial
Interest" in the Prospectus insofar as they relate to the provisions of
documents therein described, and that such counsel need not express any
opinion or belief as to the financial statements or schedules or other
financial data derived from accounting records contained in the
Registration Statement or the Prospectus.
In giving these opinions, Sullivan & Cromwell may state that they are
admitted to the bar of the State of New York and do not express any opinion
as to the laws of any other jurisdiction other than the Federal laws of the
United States of America and may rely (1) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company and the Operating Partnership and (2) as to the
qualification and good standing of the Company or any of its subsidiaries,
upon opinions of counsel in such other jurisdictions and certificates of
appropriate government officials.
A-3
<PAGE> 29
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 Amended and Restated Declaration of Trust, as amended, of the
Company authorizes the issuance of up to 290,000,000 shares of beneficial
interest, consisting of 125,000,000 Common Shares, 20,000,000 preferred
shares of beneficial interest, no par value per share, of the Company
(including 5,800,000 Series A Convertible Preferred Shares), and
125,000,000 excess shares of beneficial interest, $0.04 par value per
share, of the Company ("Excess Shares"); as of April 22, 1998, 82,191,005
Common Shares (excluding Common Shares issuable upon the exercise of
outstanding options, the redemption of outstanding units of the Operating
Partnership and the conversion of outstanding Series A Convertible
Preferred Shares), 5,789,315 Series A Convertible Preferred Shares, and no
Excess Shares were issued and outstanding; 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, to the extent that it
constitutes matters of Maryland law,
B-1
<PAGE> 30
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 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 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; and
(x) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and the compliance by
the Company with its obligations hereunder will not result in any violation
of (A) the provisions of the Amended and Restated Declaration of Trust or
Bylaws of the Company or (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
<PAGE> 1
Exhibit 3.1
VORNADO REALTY TRUST
ARTICLES OF AMENDMENT OF DECLARATION OF TRUST
THIS IS TO CERTIFY THAT:
FIRST: The Amended and Restated Declaration of Trust, as amended (the
"Declaration of Trust"), of Vornado Realty Trust, a Maryland real estate
investment trust (the "Trust"), is hereby amended by deleting Article VI,
Section 6.1 of the Declaration of Trust in its entirety and replacing it with
the following:
"SECTION 6.1 Authorized Shares. The total number of shares of beneficial
interest which the Trust is authorized to issue is 290,000,000 shares, of
which 20,000,000 shall be preferred shares of beneficial interest, no par
value per share ("Preferred Stock") (including 5,800,000 Series A
Convertible Preferred Shares of Beneficial Interest), 125,000,000 shares
shall be common shares of beneficial interest, $.04 par value per share
("Common Stock"), and 145,000,000 shares shall be excess shares of
beneficial interest, $.04 par value per share ("Excess Stock")."
SECOND: The foregoing amendment has been approved by the Board of Trustees
of the Trust as required by Section B-203(a)(7) of the Corporations and
Associations Article of the Annotated Code of Maryland and Article IX, Section
9.1(b) of the Declaration of Trust.
THIRD: The total number of shares of beneficial interest which the Trust
had authority to issue immediately prior to this amendment was 240,000,000,
consisting of 100,000,000 common shares of beneficial interest, $0.4 par value
per share 20,000,000 preferred shares of beneficial interest, no par value, per
share, and 120,000,000 excess shares of beneficial interest, $.04 par value per
share. The aggregate par value of all authorized shares of beneficial interest
having par value was $8,800,000.
FOURTH: The number of shares of beneficial interest which the Trust has
authority of issue pursuant to the foregoing amendment is 290,000,000,
consisting of 125,000,000 common shares of beneficial interest, $.04 par value
per share, 20,000,000 preferred shares of beneficial interest, no par value per
share, and 145,000,000 excess shares of beneficial interest, $.04 par value per
share. The aggregate par value of all authorized shares of beneficial interest
having par value is $10,800,000.
<PAGE> 2
FIFTH: The undersigned Chairman of the Board acknowledges this amendment
to be the trust act of the Trust and, as to all matters or facts required to
be verified under oath, the undersigned Chairman of the Board acknowledges
that, to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this Statement is made under
the penalties for perjury.
IN WITNESS WHEREOF, the Trust has caused this amendment to be signed in
its name and on its behalf by its Chairman of the Board and attested to by its
Assistant Secretary on this 21st day of April, 1998.
ATTEST: VORNADO REALTY TRUST
/s/ Lee D. Ratner /s/ Steven Roth (SEAL)
- ---------------------------- --------------------------------------
Lee D. Ratner Steven Roth
Assistant Secretary Chairman of the Board
-2-
