Exhibit 1.1
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VORNADO REALTY L.P.
(a Delaware limited partnership)
$500,000,000 Aggregate Principal Amount of
5.625% Notes due 2007
UNDERWRITING AGREEMENT
Dated: June 19, 2002
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Exhibit 1.1
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. Form S-3 Eligibility ................................... 3
iv. No Material Adverse Change in Business ................. 3
v. Good Standing of the Company ........................... 4
vi. Good Standing of Subsidiaries .......................... 4
vii. Capitalization ......................................... 4
viii. Authorization and Description of the Notes ............. 5
ix. Absence of Conflicts and Defaults ...................... 5
x. Authorization of This Underwriting Agreement ........... 5
xi. Authorization of the Indenture ......................... 5
xii. Absence of Proceedings ................................. 5
xiii. No Violations or Defaults .............................. 6
xiv. Accuracy of Certain Descriptions ....................... 6
xv. Investment Company Act ................................. 6
xvi. Independent Public Accountants ......................... 6
xviii. Title to Property ...................................... 7
xix. Environmental Laws ..................................... 7
xx. No Stabilizing Actions ................................. 8
b. Officer's Certificates ......................................... 8
SECTION 2. Sale and Delivery to the Underwriters; Closing ................. 8
a. Purchase and Sale of Notes ..................................... 8
b. Payment ........................................................ 9
c. Denominations; Registration .................................... 9
SECTION 3. Covenants of the Company ....................................... 9
a. Delivery of Registration Statement ............................. 9
b. Delivery of Prospectus ......................................... 10
c. Continued Compliance with Securities Laws ...................... 10
d. Rule 158 ....................................................... 10
e. Use of Proceeds ................................................ 10
SECTION 4. Payment of Expenses ............................................ 10
a. Expenses ....................................................... 10
b. Termination of Agreement ....................................... 11
SECTION 5. Conditions of Underwriters' Obligations ........................ 11
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Exhibit 1.1
a. Effectiveness of Registration Statement ........................ 11
b. Opinions of Counsel for the Company ............................ 11
c. Opinion of Special Maryland Counsel for the Trust .............. 12
d. Opinion of Counsel for the Underwriters ........................ 12
e. Officers' Certificate .......................................... 12
f. Accountants' Comfort Letter .................................... 12
g. Bring-down Comfort Letter ...................................... 12
i. Termination of Agreement ....................................... 13
SECTION 6. Indemnification ................................................ 13
a. Indemnification of Underwriters ................................ 13
b. Indemnification of Company, Trustees, Partners and Officers .... 14
c. Actions against Parties; Notification .......................... 14
d. Settlement without Consent if Failure to Reimburse ............. 15
SECTION 7. Contribution ................................................... 15
SECTION 8. Representations, Warranties and Agreements to Survive Delivery . 17
SECTION 9. Termination of Agreement ....................................... 17
a. Termination; General ........................................... 17
b. Liabilities .................................................... 17
SECTION 10. Default by One or More of the Underwriters ..................... 18
SECTION 11. Notices ........................................................ 19
SECTION 12. Parties ........................................................ 19
SECTION 13. GOVERNING LAW AND TIME ......................................... 19
SECTION 14. Effect of Headings ............................................. 19
SCHEDULES
Schedule A - List of Underwriters .................................... Sch A-1
Schedule B - Terms of the Notes ...................................... Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel ....................... A-1
Exhibit B - Form of Opinion of Special Maryland Counsel to the Trust ... B-1
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Exhibit 1.1
VORNADO REALTY L.P.
(a Delaware limited partnership)
$500,000,000 Aggregate Principal Amount of
5.625% Notes due 2007
Underwriting Agreement
June 19, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
as Representatives of the Several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Vornado Realty L.P., a Delaware limited partnership (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Banc of America
Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Banc of America
Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc. are acting as representatives (in
such capacity, the "Representatives"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the aggregate principal amount of 5.625% Notes due 2007 of the Company
("Notes") set forth above. The aforesaid $500,000,000 aggregate principal amount
of Notes to be purchased by the Underwriters are hereinafter called collectively
the "Securities."
The Securities are to be issued under the Indenture, dated as of June 24,
2002 (the "Indenture"), between the Company and The Bank of New York, as Trustee
(the "Trustee").
The Company understands that the Underwriters propose to offer the
Securities (the "Offering") as soon after the execution and delivery hereof as
in the judgment of the Representatives 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 Notes 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 ("▇▇▇▇▇").
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.
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Exhibit 1.1
SECTION 1. Representations and Warranties.
a. Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof and agrees with each
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 any Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus, in each
case as amended or supplemented, relating to such Notes;
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 any Underwriter through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Notes;
iii. Form S-3 Eligibility. The Company meets the requirements for
use of Form S-3 under the 1933 Act and has filed with the Commission one
or more registration statements on Form S-3, including a prospectus
relating to the Notes and other debt securities
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Exhibit 1.1
of the Company for the registration of such securities under the 1933 Act
and such registration statements have been declared effective by the
Commission;
iv. No Material Adverse Change in Business. Neither the Company
nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been any change in the capitalization or long-term
debt of the Company or any material adverse change in or affecting the
condition, financial or otherwise, or the earnings, 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;
v. Good Standing of the Company. The Company 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 Company; all of the issued and
outstanding limited partnership interests in the Company have been duly
authorized and validly issued and are fully paid and (except for the
general partner interest) nonassessable; Vornado Realty Trust, a Maryland
real estate investment trust (the "Trust"), is the sole general partner
of, and owned an approximately 79% limited partnership interest in, the
Company as of March 31, 2002;
vi. Good Standing of Subsidiaries. Each subsidiary of the Company
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, directly or through
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Exhibit 1.1
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;
vii. Capitalization. The Company has an authorized capitalization
as set forth in its Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2002, and as set forth in the Prospectus under the caption
"Capitalization of Vornado Realty L.P." in the column captioned
"Historical" (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, dividend reinvestment plans
and employee or director stock option plans, the redemption of units of
the Company or the exercise of options outstanding on the date hereof);
viii. Authorization and Description of the Notes. The Notes have
been duly authorized, and, when the Notes are duly authenticated by the
Trustee and executed and delivered in accordance with the Indenture and
paid for by the Underwriters in accordance with this Agreement, such
Securities will be duly and validly executed, issued and delivered and
will constitute valid and binding obligations of the Company; the Notes
will conform to the description thereof contained in the Prospectus under
the caption "Description of Debt Securities" and in the Prospectus
Supplement under the caption "Description of the Notes" and such
description will conform to the rights set forth in the Indenture.
ix. Absence of Conflicts and Defaults. The issue and sale of the
Notes and the compliance by the Company with all of the provisions of the
Indenture and this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary trust
action of the Trust, as general partner of the Company, 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 certificate of limited
partnership, as amended, 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 Notes or the consummation by the Company of the
transactions contemplated by the Indenture and this Agreement except such
as have been, or will have been prior to the Closing Time (as defined
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Exhibit 1.1
in Section 2(b) hereof), obtained under the 1933 Act and the 1933 Act
Regulations and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Notes by the
Underwriters;
x. Authorization of This Underwriting Agreement. This Agreement
has been duly authorized by all necessary partnership action of the
Company and has been executed and delivered by the Trust on behalf of the
Company;
xi. Authorization of the Indenture. The Indenture has been duly
authorized by all necessary partnership action of the Company and has been
executed and delivered by the Company;
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, partners' 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 Debt Securities,"
"Description of the Notes," "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;
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Exhibit 1.1
xv. Investment Company Act. The Company is not 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 with respect to the Company 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
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Exhibit 1.1
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 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:
(1) each of the Company and its subsidiaries is in
compliance with all applicable laws relating to pollution or the
discharge of materials into the environment, including common law
standards of conduct relating to damage to property or injury to
persons caused by such materials ("Environmental Laws"), each of the
Company and its subsidiaries currently holds all governmental
authorizations required under Environmental Laws in order to conduct
their businesses as described in the Prospectus, and neither the
Company nor any of its subsidiaries has any basis to expect that any
such governmental authorization will be modified, suspended or
revoked, or cannot be renewed in the ordinary course of business;
(2) 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 reasonably be
expected to form the basis of any claim (whether by a governmental
authority or other person or entity) under Environmental Laws for
cleanup costs, damages, penalties, fines, or otherwise, against any
of the Company or its subsidiaries, or against any person or entity
whose liability for such claim may have been retained by any of the
Company or its subsidiaries, whether by contract or law; and
(3) the Company and its subsidiaries have made available to
the Representatives or counsel for the Underwriters all material
studies, reports, assessments, audits and other information in their
possession or control relating to
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Exhibit 1.1
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. The Company has not taken, and the
Company will not take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
b. Officer's Certificates. Any certificate signed by any officer of the
Trust or any of its subsidiaries delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
a. Purchase and Sale of Notes. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth and as set forth in the Indenture, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price to the Underwriters
set forth in Schedule B, the aggregate principal amount of Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional amount
of Securities which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof.
b. Payment. Payment of the purchase price for, and delivery through
the facilities of The Depository Trust Company ("DTC") of, the Securities shall
be made at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times
Square, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as shall be agreed upon by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on behalf of the Underwriters 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on behalf of the Underwriters 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
through the facilities of DTC to the Representatives for the respective accounts
of the Underwriters of the Securities to be purchased by them.
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Exhibit 1.1
c. Denominations; Registration. The Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on behalf of the
Company with DTC or its designated custodian. The certificates for the
Securities will be made available for examination and packaging by the
Representatives 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 each
Underwriter as follows:
a. Delivery of Registration Statement. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, 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
Representatives will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, 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 Representatives of its intention to file any amendment to the Registration
Statement or any supplement to the Prospectus; will furnish the Representatives
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 Representatives or counsel to the Underwriters 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 each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, 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
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Exhibit 1.1
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 statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters 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."
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 the Indenture, this
Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to DTC or
its designated custodian, 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
Underwriters, (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
Underwriters in connection therewith and in connection with
the preparation of a Blue Sky Survey and
11
Exhibit 1.1
any supplement thereto, if any, (vi) the printing and delivery
to the Underwriters 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, and (viii) the filing fees
incident to, and the reasonable fees and disbursements of
counsel to the Underwriters 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. It is
understood, however, that, except as provided in this Section
and Section 6 hereof, each Underwriter will pay all of its own
costs and expenses, including the fees of its counsel, stock
or other transfer taxes on resale of any of the Securities by
it, and any advertising expenses connected with any offers of
the Securities such Underwriter may make.
b. Termination of Agreement. If this Agreement is
terminated by the Representatives in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company
shall reimburse the Underwriters for all out-of-pocket
expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters 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 Trust 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 Underwriters. 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
Representatives shall have received the opinion and letter, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion and letter for each of the other Underwriters,
to the effect set forth in Exhibit A hereto.
c. Opinion of Special Maryland Counsel for the Trust. At Closing
Time, the Representatives shall have received the opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
12
Exhibit 1.1
& Ingersoll, LLP, special Maryland counsel for the Trust, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
d. Opinion of Counsel for the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the matters set forth in clauses (i), (ii), (iv),
(v) and (vi) in the opinion and (i) in the letter set forth 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 Trust 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
Representatives shall have received a certificate of the Chairman or President,
and the Executive Vice President - Finance and Administration, Chief Financial
Officer of the Trust, 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 Representatives shall have received from Deloitte & Touche
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, 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
Representatives 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 (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
13
Exhibit 1.1
h. Additional Documents. At Closing Time, counsel for the
Underwriters 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 Representatives
and counsel for the Underwriters.
i. 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 Representatives by notice to the Company at
any time at or prior to Closing Time, 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 Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act 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
14
Exhibit 1.1
iii. against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
then amended or supplemented (excluding documents incorporated by reference) in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the Prospectus, any such
amendment or supplement thereto or any such other document was corrected in the
Prospectus or the Prospectus as then amended or supplemented if the Company has
furnished prior to such confirmation sufficient copies thereof to such
Underwriter.
b. Indemnification of Company, Trustees, Partners and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
partners, the trustees of the Trust, each of the officers of the Trust 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, 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 by such Underwriter through the Representatives
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
15
Exhibit 1.1
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
d. Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with Section
6(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being 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 Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
16
Exhibit 1.1
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 Underwriters 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
Underwriters 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, in each case as set forth on the cover of
the Prospectus Supplement, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters 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 Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters 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, no Underwriter shall 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 such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
17
Exhibit 1.1
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each partner of the Company, each trustee of the Trust, each officer of the
Trust 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.
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 Trust 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 Underwriters or any controlling
person of an Underwriter, or by or on behalf of the Company or any officer or
trustee of the Trust or partner or controlling person of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
a. Termination; General. The Representatives 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 Representatives, impracticable or inadvisable (w) to
commence or continue the offering of the Securities to the public, or (x) to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of such exchanges or by
order of the Commission or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities
or (v) there shall have been any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
18
Exhibit 1.1
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.
19
Exhibit 1.1
SECTION 10. Default by One or More of the Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that they have so
arranged for the purchase of such Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone the Closing Time
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in the Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives or
the Company, or both, as provided in subsection (a) above, the aggregate
principal amount of such Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities which such Underwriter agreed to purchase under
this Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Securities which
such Underwriter agreed to purchase under this Agreement) of the Securities of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives or
the Company, or both, as provided in subsection (a) above, the aggregate
principal amount of Securities which remains unpurchased exceeds one-tenth of
the aggregate principal amount of the Securities, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the party of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters provided in
20
Exhibit 1.1
Section 4 hereof and the indemnity and contribution agreements in Sections 6 and
7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the General Counsel of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and notices to the Company
shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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 Underwriters, the Company 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 Underwriters,
the Company, 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 Underwriters, the Company 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 any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
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
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
VORNADO REALTY L.P.
By: Vornado Realty Trust,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President -
Finance and Administration,
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Exhibit 1.1
SCHEDULE A
Aggregate Principal
Amount of
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................ $145,000,000
Banc of America Securities LLC.......................... 145,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................. 145,000,000
Deutsche Bank Securities Inc............................ 15,000,000
Commerzbank Capital Markets Corp. ...................... 15,000,000
Fleet Securities, Inc................................... 10,000,000
UBS Warburg LLC......................................... 10,000,000
PNC Capital Markets, Inc................................ 5,000,000
BNY Capital Markets, Inc......... ...................... 5,000,000
▇▇▇▇▇ Fargo Brokerage Services, LLC..................... 5,000,000
Total................................................... $500,000,000
============
Sch A-1
Exhibit 1.1
SCHEDULE B
VORNADO REALTY L.P
TITLE OF DESIGNATED SECURITIES:
5.625% Notes due 2007
AGGREGATE PRINCIPAL AMOUNT OF DESIGNATED SECURITIES:
$500,000,000
PUBLIC OFFERING PRICE:
99.856%
UNDERWRITING DISCOUNT:
0.600%
FORM OF DESIGNATED SECURITIES:
Book-Entry Only through DTC
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds.
TIME OF DELIVERY:
10:00 a.m. (New York City time), June 24, 2002
CLOSING LOCATION:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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NAME AND ADDRESS OF DESIGNATED REPRESENTATIVE:
Designated Representative: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Address for Notices, etc.: General Counsel
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
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Sch B-1
Exhibit 1.1
RECORD DATES:
December 1 and June 1
INTEREST PAYMENT DATES:
December 15 and June 15
RANKING:
The Notes will be unsecured and unsubordinated obligations of the Company
and will rank equally with all of the Company's unsecured and unsubordinated
indebtedness.
CONVERSION RIGHTS:
The Notes are not convertible or exchangeable for any property or other
securities of the Company.
REDEMPTION AT OPTION OF THE COMPANY:
The Company may redeem some or all of the Notes at any time at a
redemption price equal to the sum of (a) 100% of the aggregate principal
amount of the Notes being redeemed, (b) accrued but unpaid interest, if
any, to the redemption date and (c) the Make-Whole Amount (as defined in
the Notes).
LISTING:
The Notes will not be listed on any national securities exchange.
CUSIP:
Sch B-2
Exhibit 1.1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
i. The Company is a limited partnership duly organized and
existing under the laws of the State of Delaware and is in good standing
with the Secretary of State for the State of Delaware;
ii. The Company has the partnership 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 Securities have been duly authorized and validly issued
and when delivered will constitute valid and binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
iv. This Agreement has been duly authorized, executed and
delivered by the Company;
v. The Indenture has been duly authorized, executed and delivered
by the Company;
vi. The Registration Statement has been declared effective under
the 1933 Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending
under the 1933 Act;
vii. 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 Underwriters
have been obtained or made; provided, however, that for purposes of this
paragraph (vii), such counsel need not express any opinion with respect
A-1
Exhibit 1.1
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 of the Indenture and
this Agreement do not, and the issuance of the Securities under the
Indenture and the sale of the Securities by the Company to the
Underwriters pursuant to this Agreement do not, and the performance by the
Company of its obligations under this Agreement and the Indenture will not
(A) violate the Company's certificate of limited partnership, as amended,
(B) violate any court order or administrative decree known to such counsel
or any Federal law of the United States or law of the State of New York
applicable to the Company, or (C) result in a default under or breach of
any 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 (viii), such counsel need not express
any opinion with respect to Federal or state securities laws, other
antifraud laws or fraudulent transfer laws or the Employee Retirement
Income Security Act of 1974 and Related laws;
ix. The Company is not an "investment company," as such term is
defined in the Investment Company Act of 1940;
In giving this opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 as to certain matters, upon
information obtained from public officials, officers of the Trust and its
subsidiaries and other sources believed by them to be responsible. Such
counsel may assume that the certificates for the Securities conform to the
specimen thereof examined by them and have been authenticated by the
Trustee, 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.
FORM OF LETTER OF COMPANY'S COUNSEL TO BE
DELIVERED PURSUANT TO SECTION 5(b)
A-2
Exhibit 1.1
(i) On the basis of the information which was reviewed in the course
of the performance of the services referred to in their letter 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 supplemented by the
Prospectus Supplement, 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, the Prospectus or the Prospectus Supplement, except for those
made under the captions "Description of Debt Securities" in the Prospectus
and "Description of the Notes" in the Prospectus Supplement insofar as
they relate to the provisions of documents therein described, and that
such counsel 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 1.1
Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE TRUST
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
i. The Trust is a real estate investment trust duly formed 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 Trust has the requisite trust power to execute and deliver
this Agreement, the Indenture and the Notes in its capacity as general
partner of the Company, and the execution and delivery of this Agreement,
the Indenture and the Notes by the Trust in its capacity as general
partner of the Company and the issuance of the Notes by the Company have
been authorized by all necessary trust action; and
iii. This Agreement, the Indenture and the Notes have been duly
executed and, to such counsel's knowledge, delivered by the Trust in its
capacity as general partner of the Company.
In giving these opinions, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP may state
that such opinions are limited to the laws of the State 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 Trust and (2) as to the
qualification and good standing of the Trust or any of its subsidiaries in any
other jurisdiction, upon opinions of counsel in such other jurisdictions and
certificates of appropriate government officials.
B-1