AS FILED PURSUANT TO RULE 424(B)(5)
REGISTRATION NO. 333-108138
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED AUGUST 28, 2003)
[VORNADO LOGO]
1,600,000 SHARES
7.00% SERIES D-10 CUMULATIVE REDEEMABLE PREFERRED SHARES
LIQUIDATION PREFERENCE $25.00 PER SHARE
We are a fully integrated real estate investment trust. We are offering and
selling 1,600,000 shares of our Series D-10 Cumulative Redeemable Preferred
Shares of Beneficial Interest (the "Series D-10 Preferred Shares") to Eaton
Vance Tax-Advantaged Dividend Income Fund (the "Fund") with this prospectus
supplement.
Dividends on the Series D-10 Preferred Shares will be cumulative from the
date of original issue and payable quarterly, beginning on December 15, 2003, at
the rate of 7.00% of the liquidation preference per annum, or $1.75 per Series
D-10 Preferred Share per annum.
Except in certain instances relating to preservation of our status as a
real estate investment trust, the Series D-10 Preferred Shares are not
redeemable until November 17, 2008. On and after November 17, 2008, we may
redeem the Series D-10 Preferred Shares, in whole or in part, at a redemption
price of $25.00 per share, plus any accumulated and unpaid dividends through the
date of redemption. The Series D-10 Preferred Shares have no maturity date and
will remain outstanding indefinitely unless redeemed.
The Series D-10 Preferred Shares will not be listed on any national
securities exchange. Currently, there is no public market for the Series D-10
Preferred Shares.
INVESTING IN THE SERIES D-10 PREFERRED SHARES INVOLVES CERTAIN RISKS. SEE
"RISK FACTORS" BEGINNING ON PAGE 4 OF THE ACCOMPANYING PROSPECTUS.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the accompanying prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The Fund has agreed to purchase from Vornado the Series D-10 Preferred
Shares offered by this prospectus supplement at a price of $25.00 per share,
resulting in approximately $40,000,000 in proceeds to Vornado after deducting
estimated fees and expenses. See "Plan of Distribution" in this prospectus
supplement and the accompanying prospectus.
We expect to deliver the Series D-10 Preferred Shares on or about November
17, 2003.
November 17, 2003
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS
SUPPLEMENT AND CONTAINED OR INCORPORATED BY REFERENCE IN THE ACCOMPANYING
PROSPECTUS. VORNADO HAS NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. VORNADO IS NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE
WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION
PROVIDED BY THIS PROSPECTUS SUPPLEMENT OR CONTAINED OR INCORPORATED BY REFERENCE
IN THE ACCOMPANYING PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THIS PROSPECTUS SUPPLEMENT.
TABLE OF CONTENTS
PAGE
----
PROSPECTUS SUMMARY
PROSPECTUS SUPPLEMENT SUMMARY............................... 2
VORNADO REALTY TRUST AND VORNADO REALTY L.P................. 2
THE OFFERING................................................ 2
USE OF PROCEEDS............................................. 4
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED SHARE DIVIDEND REQUIREMENTS................. 4
DESCRIPTION OF THE SERIES D-10 PREFERRED SHARES............. 4
GENERAL..................................................... 5
FEDERAL INCOME TAX CONSIDERATIONS........................... 11
PLAN OF DISTRIBUTION........................................ 11
VALIDITY OF THE SERIES D-10 PREFERRED SHARES................ 11
EXPERTS..................................................... 12
PROSPECTUS
Available Information....................................... 1
Cautionary Statements Regarding Forward-Looking
Statements................................................ 2
Risk Factors................................................ 4
Vornado Realty Trust and Vornado Realty L.P................. 16
Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preference Dividends.......................... 17
Use of Proceeds............................................. 17
Description of Debt Securities of Vornado Realty L.P........ 18
Description of Shares of Beneficial Interest of Vornado
Realty Trust.............................................. 37
Legal Ownership and Book-Entry Issuance..................... 48
Federal Income Tax Considerations........................... 53
Plan of Distribution........................................ 69
Validity of the Securities.................................. 69
Experts..................................................... 70
PROSPECTUS SUPPLEMENT SUMMARY
The following information may not contain all the information that may be
important to you. You should read the entire prospectus supplement and
accompanying prospectus, as well as the documents incorporated by reference in
the accompanying prospectus, before making an investment decision. All
references to "we", "our", "us" and "Vornado" in this prospectus supplement and
the accompanying prospectus mean Vornado Realty Trust and its consolidated
subsidiaries, except where it is made clear that the term means only the parent
company. All references to the "operating partnership" in this prospectus
supplement and the accompanying prospectus mean Vornado Realty L.P. Unless
indicated otherwise, all references to areas of properties provided in square
feet or cubic feet in this prospectus supplement and the accompanying prospectus
are approximations.
VORNADO REALTY TRUST AND VORNADO REALTY L.P.
Vornado Realty Trust is a fully-integrated real estate investment trust
organized under the laws of Maryland. Vornado Realty Trust conducts its business
through, and substantially all of its interests in properties are held by,
Vornado Realty L.P., a Delaware limited partnership. Vornado Realty Trust is the
sole general partner of, and owned approximately 81% of the common limited
partnership interest in, Vornado Realty L.P. as of September 30, 2003.
For a description of the property that Vornado Realty Trust currently owns
directly or indirectly through Vornado Realty L.P., see "Vornado Realty Trust
and Vornado Realty L.P." beginning on page 16 of the accompanying prospectus.
Our principal executive offices are located at 888 Seventh Avenue, New
York, New York 10019, and our telephone number is (212) 894-7000.
THE OFFERING
Shares Offered................ 1,600,000 of our Series D-10 Preferred Shares.
Dividends..................... Dividends on each Series D-10 Preferred Share
will be cumulative from the date of original
issue and are payable quarterly in arrears on
March 15, June 15, September 15 and December 15
of each year, commencing December 15, 2003, at
the rate of 7.00% of the liquidation preference
per annum, or $1.75 per Series D-10 Preferred
Share per annum. The first dividend is payable
on December 15, 2003 and at that time the Fund
will be entitled to receive a prorated amount
for the period from the date of original
issuance through and including December 15,
2003.
Liquidation Preference........ $25.00 per share, plus an amount equal to
accumulated and unpaid dividends (whether or
not earned or declared).
Ranking....................... The Series D-10 Preferred Shares will rank
senior to our common shares and any other
Junior Shares that we may issue in the future,
and on a parity with our Series A Convertible
Preferred Shares, Series B Cumulative
Redeemable Preferred Shares, Series C
Cumulative Redeemable Preferred Shares, Series
D-1 Cumulative Redeemable Preferred Shares,
Series D-2 Cumulative Redeemable Preferred
Shares, Series D-3 Cumulative Redeemable
Preferred Shares, Series D-4 Cumulative
Redeemable Preferred Shares, Series D-5
Cumulative Redeemable Preferred Shares, Series
D-6 Cumulative Redeemable Preferred Shares,
Series D-7 Cumulative Redeemable Preferred
Shares, Series D-8 Cumulative Redeemable
Preferred Shares, Series D-9 Cumulative Redeem-
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able Preferred Shares and any other parity
shares that we may issue in the future, in each
case with respect to payment of dividends and
as to distribution of assets upon liquidation,
dissolution or winding up. Vornado intends to
contribute the net proceeds from the offering
to Vornado Realty L.P. in exchange for
preferred units in Vornado Realty L.P. (with
economic terms that mirror the terms of the
Series D-10 Preferred Shares). These preferred
units will rank, as to distributions and upon
liquidation, senior to the Class A Units of
limited partnership interest in Vornado Realty
L.P. and on a parity with certain other
preferred units in Vornado Realty L.P.
Conversion Rights............. The Series D-10 Preferred Shares are not
convertible into or exchangeable for any other
property or any of our other securities.
Redemption at Option of
Vornado....................... Except in certain instances relating to
preservation of our status as a real estate
investment trust, the Series D-10 Preferred
Shares are not redeemable until November 17,
2008. On and after November 17, 2008, we may
redeem the Series D-10 Preferred Shares, in
whole or in part, at a redemption price of
$25.00 per share, plus any accumulated and
unpaid dividends through the date of
redemption. The Series D-10 Preferred Shares
have no maturity date and will remain
outstanding indefinitely unless redeemed.
Voting Rights................. You will generally have no voting rights.
However, if dividends on the Series D-10
Preferred Shares or any series or class of
parity shares are in arrears for six quarterly
dividend periods (whether or not consecutive),
the holders of the Series D-10 Preferred Shares
(voting separately as a class with holders of
all other series of parity preferred shares
upon which like voting rights have been
conferred and are exercisable) will have the
right to elect two additional trustees to serve
on Vornado's Board of Trustees until such
dividend arrearage is eliminated. In addition,
certain changes that would be materially
adverse to the rights of holders of the Series
D-10 Preferred Shares cannot be made without
the affirmative vote of at least two-thirds of
the holders of the outstanding Series D-10
Preferred Shares and all other series of parity
preferred shares upon which like voting rights
have been conferred and are exercisable voting
as a single class. If any such changes would be
materially adverse to holders of some but not
all series of parity preferred shares, a vote
of at least two-thirds of the holders of only
the series materially and adversely affected
would be required. Any increase in the number
of Series D-10 Preferred Shares for purposes of
issuance to persons other than the holders of
Series D-10 Preferred Shares on such date will
require the affirmative vote of two-thirds of
the holders of Series D-10 Preferred Shares.
Restrictions on Ownership..... In order to maintain Vornado's qualification as
a real estate investment trust for federal
income tax purposes, ownership by any person of
more than 9.9% of the outstanding preferred
shares of Vornado is prohibited by Vornado's
Amended and Restated Declaration of Trust. The
Fund and certain affiliates of the Fund have
received from Vornado a waiver of this
limitation in respect of the acquisition and
ownership of the Series D-10 Preferred Shares.
The waiver is not transferable.
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Use of Proceeds............... Vornado Realty L.P. will use the net proceeds
from this offering for general corporate
purposes.
Risk Factors.................. See "Risk Factors" beginning on page 4 of the
accompanying prospectus for certain
considerations relevant to an investment in the
Series D-10 Preferred Shares.
USE OF PROCEEDS
The net proceeds from the sale of the Series D-10 Preferred Shares are
estimated to be approximately $40,000,000 before deduction of expenses.
Vornado intends to contribute the net proceeds to Vornado Realty L.P. in
exchange for a number of the 7.00% Series D-10 Cumulative Redeemable Preferred
Units (the "Series D-10 Preferred Units"), in Vornado Realty L.P. equal to the
number of Series D-10 Preferred Shares offered and sold hereby. Vornado Realty
L.P. will use the contributed net proceeds from that issuance for general
partnership purposes. Pending such use, the net proceeds may be invested in
short-term income-producing investments. The Series D-10 Preferred Units will
have a distribution preference equal to the distribution preference on the
Series D-10 Preferred Shares and will rank, as to distributions and upon
liquidation, senior to the Class A Units of limited partnership interest in
Vornado Realty L.P. and on a parity with certain other units in Vornado Realty
L.P. See "Description of the Series D-10 Preferred Shares -- Ranking" for
information about the ranking of the Series D-10 Preferred Units.
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED SHARE DIVIDEND REQUIREMENTS
Vornado Realty Trust's consolidated ratio of earnings to combined fixed
charges and preference dividends for each of the fiscal years ended December 31,
1998, 1999, 2000, 2001 and 2002 and the nine-month period ended September 30,
2003 are as follows:
YEAR ENDED DECEMBER 31,
-------------------------------- NINE MONTHS ENDED
1998 1999 2000 2001 2002 SEPTEMBER 30, 2003
---- ---- ---- ---- ---- ------------------
Ratio of earnings to combined fixed
charges and preference dividends
(unaudited)........................... 1.88 1.73 1.62 1.68 1.68 1.98
For purposes of calculating these ratios, (a) earnings represent income
from continuing operations before income taxes, plus fixed charges, and (b)
fixed charges represent interest expense on all indebtedness, including
amortization of deferred debt issuance costs, and the portion of operating lease
rental expense that management considers representative of the interest factor,
which is one-third of operating lease rentals.
DESCRIPTION OF THE SERIES D-10 PREFERRED SHARES
The summary of certain terms and provisions of the Series D-10 Preferred
Shares of Vornado contained in this prospectus supplement does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
terms and provisions of Vornado's Declaration of Trust, as amended and restated
(the "Declaration of Trust") and Vornado's Bylaws, copies of which are filed as
exhibits to the registration statement of which the accompanying prospectus
forms a part, and by reference to the Articles Supplementary setting forth the
particular terms of the Series D-10 Preferred Shares (the "Articles
Supplementary") which have been filed as an exhibit to a report on Form 8-K
which is incorporated by reference in the registration statement of which this
prospectus forms a part. The Declaration of Trust, Vornado's Bylaws and the
Articles Supplementary are also available from us. The following description of
the particular terms of the Series D-10 Preferred Shares supplements, and to the
extent inconsistent therewith replaces, the description of the general terms and
provisions of Vornado's preferred shares, no par value per share ("Preferred
Shares"), set forth in the accompanying prospectus, to which description
reference is hereby made.
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GENERAL
As of September 30, 2003, the declaration of trust authorizes the issuance
of 70,000,000 preferred shares. The Preferred Shares may be issued from time to
time in one or more series, without shareholder approval, with such
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption thereof as established by the Board of Trustees.
Prior to the Offering, the Board of Trustees classified 4,800,000 of its
authorized Preferred Shares as Series D-10 Preferred Shares and authorized the
issuance thereof. In addition, prior to the completion of the offering, the Fund
and certain affiliates of the Fund have been granted a waiver by Vornado of the
of the ownership limit in order to permit the acquisition of the Series D-10
Preferred Shares being sold in the offering. When issued, the Series D-10
Preferred Shares will be validly issued, fully paid and nonassessable. The
holders of Series D-10 Preferred Shares will have no preemptive rights with
respect to any shares of beneficial interest of Vornado or any other securities
of Vornado convertible into or carrying rights or options to purchase any such
shares. The Series D-10 Preferred Shares will not be subject to any sinking fund
or other obligations of Vornado to redeem or retire the Series D-10 Preferred
Shares. Unless redeemed by Vornado, the Series D-10 Preferred Shares will have a
perpetual term, with no maturity.
Vornado's income (including income available for distribution on the Series
D-10 Preferred Shares) consists primarily of its share of the income of Vornado
Realty L.P., and Vornado's cash flow consists primarily of its share of
distributions from Vornado Realty L.P. Distributions by Vornado Realty L.P. are
determined by the Board of Trustees and are dependent on a number of factors,
including funds from operations available for distribution, Vornado Realty
L.P.'s financial condition, any decision by the Board of Trustees to reinvest
funds rather than to distribute such funds, Vornado Realty L.P.'s capital
expenditures, the annual distribution requirements under the real estate
investment trust ("REIT") provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), and such other factors as the Board of Trustees deems
relevant. See "Risk Factors -- Our Organizational and Financial Structure Gives
Rise to Operational and Financial Risks" in the accompanying prospectus for
further information regarding the availability of income to Vornado.
RANKING
The Series D-10 Preferred Shares will rank senior to the Junior Shares (as
defined under "--Dividends" below), including the Common Shares, with respect to
payment of dividends and amounts upon liquidation, dissolution or winding up.
While any Series D-10 Preferred Shares are outstanding, Vornado may not
authorize, create or increase the authorized amount of any class or series of
beneficial interest that ranks senior to the Series D-10 Preferred Shares with
respect to the payment of dividends or amounts upon liquidation, dissolution or
winding up without the consent of the holders of two-thirds of the outstanding
Series D-10 Preferred Shares and all other shares of Voting Preferred Shares (as
defined under "--Voting Rights" below), voting as a single class. However,
Vornado may authorize, create or issue series of Preferred Shares ranking on a
parity with the Series D-10 Preferred Shares with respect, in each case, to the
payment of dividends and amounts upon liquidation, dissolution or winding up
("Parity Shares") without the consent of any holder of Series D-10 Preferred
Shares. Any increase in the authorized number of shares constituting the Series
D-10 Preferred Shares for the purposes of issuing such shares to persons other
than solely to all of the then existing holders thereof on an identical per
share basis would, however, require the affirmative vote of two-thirds of the
holders of Series D-10 Preferred Shares. See "--Voting Rights" below for a
discussion of the voting rights applicable if we seek to create any class or
series of beneficial interest senior to the Series D-10 Preferred Shares.
The following series of shares of beneficial interest are Parity Shares
with respect to each other:
- the $3.25 Series A Convertible Preferred Shares of Beneficial Interest,
liquidation preference $50.00 per share (the "Series A Preferred
Shares"),
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- the 8.5% Series B Cumulative Redeemable Preferred Shares of Beneficial
Interest, liquidation preference $25.00 per share (the "Series B
Preferred Shares"),
- the 8.5% Series C Cumulative Redeemable Preferred Shares of Beneficial
Interest, liquidation preference $25.00 per share (the "Series C
Preferred Shares"),
- the Series D-1 8.5% Cumulative Redeemable Preferred Shares of Beneficial
Interest, liquidation preference $25.00 per share (the "Series D-1
Preferred Shares"),
- the 8.375% Series D-2 Cumulative Redeemable Preferred Shares (the "Series
D-2 Preferred Shares"),
- the 8.25% Series D-3 Cumulative Redeemable Preferred Shares (the "Series
D-3 Preferred Shares"),
- the Series D-4 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-4 Preferred Shares"),
- the Series D-5 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-5 Preferred Shares"),
- the Series D-6 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-6 Preferred Shares"),
- the Series D-7 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-7 Preferred Shares"),
- the Series D-8 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-8 Preferred Shares"),
- the Series D-9 8.25% Cumulative Redeemable Preferred Shares (the "Series
D-9 Preferred Shares"), and
- the Series D-10 Preferred Shares.
As of September 30, 2003, 1,030,438 Series A Preferred Shares, 3,400,000
Series B Preferred Shares and 4,600,000 Series C Preferred Shares were
outstanding. The Series A Preferred Shares are listed on the NYSE under the
symbol "VNO Pr A," the Series B Preferred Shares are listed on the NYSE under
the symbol "VNO Pr B" and the Series C Preferred Shares are listed on the NYSE
under the symbol "VNO Pr C." No Series D 1, Series D 2, Series D 3, Series D 4,
Series D 5, Series D 6, Series D 7, Series D 8, or Series D 9 Preferred Shares
were issued and outstanding as of September 30, 2003.
RANKING OF SERIES D-10 PREFERRED UNITS
Vornado intends to contribute the net proceeds of the offering of the
Series D-10 Preferred Shares to Vornado Realty L.P. in exchange for a number of
Series D-10 Preferred Units in Vornado Realty L.P. equal to the number of Series
D-10 Preferred Shares offered and sold hereby. The Series D-10 Preferred Units
to be acquired by Vornado will substantially mirror the economic terms of the
Series D-10 Preferred Shares and will rank senior to the Class A Units of
limited partnership interest in Vornado Realty L.P. with respect to the payment
of distributions and amounts upon liquidation, dissolution or winding up of
Vornado Realty L.P.
The Series D-10 Preferred Units will rank on a parity with Vornado Realty
L.P.'s:
- Series A Preferred Units,
- Series B Pass-Through Preferred Units ("Series B Preferred Units"),
- Series C Convertible Preferred Units ("Series C Preferred Units"),
- 5.0% Series B-1 Convertible Preferred Units ("Series B-1 Preferred
Units"),
- 8.0% Series B-2 Restricted Convertible Preferred Units ("Series B-2
Preferred Units"),
- 6.5% Series C-1 Convertible Preferred Units ("Series C-1 Preferred
Units"),
- 8.5% Series D-1 Cumulative Redeemable Preferred Units ("Series D-1
Preferred Units"),
- 8.375% Series D-2 Cumulative Redeemable Preferred Units ("Series D-2
Preferred Units"),
- 8.25% Series D-3 Cumulative Redeemable Preferred Units ("Series D-3
Preferred Units"),
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- 8.25% Series D-4 Cumulative Redeemable Preferred Units ("Series D-4
Preferred Units"),
- 8.25% Series D-5 Cumulative Redeemable Preferred Units ("Series D-5
Preferred Units"),
- 8.25% Series D-6 Cumulative Redeemable Preferred Units ("Series D-6
Preferred Units"),
- 8.25% Series D-7 Cumulative Redeemable Preferred Units ("Series D-7
Preferred Units"),
- 8.25% Series D-8 Cumulative Redeemable Preferred Units ("Series D-8
Preferred Units"),
- 8.25% Series D-9 Cumulative Redeemable Preferred Units ("Series D-9
Preferred Units"),
- 6.5% Series E-1 Convertible Preferred Units ("Series E-1 Preferred
Units"),
- 9.0% Series F-1 Preferred Units ("Series F-1 Preferred Units")
and any other units issued in the future and designated as "Parity Units", in
each case with respect to the payment of distributions and amounts upon
liquidation, dissolution or winding up of Vornado Realty L.P., without
preference or priority one over the other.
The following table summarizes Vornado's outstanding preferred units as of
September 30, 2003.
OUTSTANDING UNITS AT PREFERRED OR CONVERSION
---------------------------- PER UNIT ANNUAL RATE INTO
SEPTEMBER 30, DECEMBER 31, LIQUIDATION DISTRIBUTION CLASS A
UNIT SERIES 2003 2002 PREFERENCE RATE UNITS
----------- ------------- ------------ ----------- ------------ ----------
Convertible Preferred:
Series A Preferred........................ 1,030,438 1,450,623 $50.00 $ 3.25 1.38504
Series B Preferred........................ 3,400,000 3,400,000 $25.00 $ 2.125 --
Series C Preferred........................ 4,600,000 4,600,000 $25.00 $ 2.125 --
Series B-1 Preferred...................... 899,566 899,566 $50.00 $ 2.50 .914
Series B-2 Preferred...................... 449,783 449,783 $50.00 $ 4.00 .914
Series C-1 Preferred...................... 747,912 747,912 $50.00 $ 3.25 1.1431
Series E-1 Preferred...................... 4,998,000 4,998,000 $50.00 $ 3.25(1) 1.1364
Series F-1 Preferred...................... 400,000 400,000 $25.00 $ 2.25 (2)
Perpetual Preferred:(3)
Series D-1 Preferred...................... 3,500,000 3,500,000 $25.00 $ 2.125 N/A
Series D-2 Preferred...................... 549,336 549,336 $50.00 $4.1875 N/A
Series D-3 Preferred...................... 8,000,000 8,000,000 $25.00 $2.0625 N/A
Series D-4 Preferred...................... 5,000,000 5,000,000 $25.00 $2.0625 N/A
Series D-5 Preferred...................... 6,480,000 6,480,000 $25.00 $2.0625 N/A
Series D-6 Preferred...................... 840,000 840,000 $25.00 $2.0625 N/A
Series D-7 Preferred...................... 7,200,000 7,200,000 $25.00 $2.0625 N/A
Series D-8 Preferred...................... 360,000 360,000 $25.00 $2.0625 N/A
Series D-9 Preferred...................... 1,800,000 1,800,000 $25.00 $2.0625 N/A
---------------
(1) Increases to $3.38 in March 2006.
(2) Holders have the right to require the Company to redeem the outstanding F-1
units for cash or common shares (at the Company's option) equal to the
Liquidation Preference of $25.00 per share.
(3) Convertible at the option of the holder for an equivalent amount of the
Company's preferred shares and redeemable at the Company's option after the
5th anniversary of the date of issuance (ranging from December 1998 to
September 2001).
Vornado Realty L.P. may create additional classes of Parity Units or issue
additional units of any series of Parity Units without the consent of any holder
of Series D-10 Preferred Shares.
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DIVIDENDS
Holders of Series D-10 Preferred Shares will be entitled to receive, when,
as and if authorized by the Board of Trustees of Vornado, out of funds of
Vornado legally available for payment, cumulative cash dividends at the rate per
annum of 7.00% per share on the liquidation preference thereof (equivalent to
$1.75 per Series D-10 Preferred Share per annum). Dividends on each Series D-10
Preferred Share will be cumulative from the date of original issue and are
payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year, commencing December 15, 2003 (and, in the case of any accrued but
unpaid dividends, at such additional times and for such interim periods, if any,
as determined by the Board of Trustees), at such annual rate. Each such dividend
is payable to holders of record as they appear on the share records of Vornado
at the close of business on such record dates, not exceeding 30 days preceding
the payment dates thereof as fixed by the Board of Trustees of Vornado.
Accumulated and unpaid dividends for any past quarterly dividend periods may be
authorized and declared and paid at any time, without reference to any regular
Dividend Payment Date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of Trustees.
Dividends are cumulative from the most recent dividend payment date to which
dividends have been paid, whether or not in any dividend period or periods there
shall be funds of Vornado legally available for the payment of such dividends.
Accumulations of dividends on Series D-10 Preferred Shares will not bear
interest. Dividends payable on the Series D-10 Preferred Shares for any period
greater or less than a full dividend period will be computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable on the Series
D-10 Preferred Shares for each full dividend period will be computed by dividing
the annual dividend rate by four.
No dividend will be declared or paid on any Parity Shares unless full
cumulative dividends have been declared and paid or are contemporaneously
declared and funds sufficient for payment set aside on the Series D-10 Preferred
Shares for all prior dividend periods. If accumulated dividends on the Series
D-10 Preferred Shares for all prior dividend periods have not been paid in full
then any dividend declared on the Series D-10 Preferred Shares and on any Parity
Shares for any dividend period will be declared ratably in proportion to the
respective amounts of accumulated and unpaid dividends on the Series D-10
Preferred Shares and such Parity Shares.
Vornado will not
(i) declare, pay or set apart funds for the payment of any dividend or
other distribution with respect to any Junior Shares (as defined below) (other
than in shares of Junior Shares) or
(ii) redeem, purchase or otherwise acquire for consideration any Junior
Shares through a sinking fund or otherwise (other than a redemption or purchase
or other acquisition of Common Shares made for purposes of an employee incentive
or benefit plan of Vornado or any subsidiary, or a conversion into or exchange
for Junior Shares or redemptions for the purpose of preserving Vornado's
qualification as a REIT),
unless
(A) all cumulative dividends with respect to the Series D-10 Preferred
Shares and any Parity Shares at the time such dividends are payable have been
paid or funds have been set apart for payment of such dividends and
(B) sufficient funds have been paid or set apart for the payment of the
dividend for the current dividend period with respect to the Series D-10
Preferred Shares and any Parity Shares.
As used herein, (i) the term "dividend" does not include dividends payable
solely in shares of Junior Shares on Junior Shares, or in options, warrants or
rights to holders of Junior Shares to subscribe for or purchase any Junior
Shares, and (ii) the term "Junior Shares" means the Common Shares, and any other
class of capital stock of Vornado now or hereafter issued and outstanding that
ranks junior as to the payment of dividends or amounts upon liquidation,
dissolution and winding up to the Series D-10 Preferred Shares.
S-8
REDEMPTION
Except as otherwise provided under the Declaration of Trust to protect
Vornado's status as a REIT, Series D-10 Preferred Shares will not be redeemable
by Vornado prior to November 17, 2008. On and after November 17, 2008, the
Series D-10 Preferred Shares will be redeemable at the option of Vornado, in
whole or in part, at any time or from time to time, at a redemption price of
$25.00 per Series D-10 Preferred Share, plus any accumulated and unpaid
dividends to the date fixed for redemption.
Vornado will give notice of redemption at least 30 days but no more than 60
days prior to the redemption date either by first class mail, postage prepaid,
at the holder's address as it appears in Vornado's share transfer records, or by
publication in The Wall Street Journal or The New York Times, or if neither
newspaper is then being published, any other daily newspaper of national
circulation. If Vornado chooses to provide such notice by publication, it will
also promptly mail notice of such redemption to the holders of the Series D-10
Preferred Shares to be redeemed. A failure to give such notice or any defect in
the notice or in its mailing will not affect the validity of the proceedings for
the redemption of any Series D-10 Preferred Shares except as to the holder to
whom notice was defective or not given. Each notice will state:
- the redemption date;
- the number of Series D-10 Preferred Shares to be redeemed;
- the redemption price;
- the place or places where the certificates evidencing the Series D-10
Preferred Shares are to be surrendered for payment of the redemption
price; and
- that dividends on the shares to be redeemed will cease to accrue on such
redemption date, except as otherwise provided therein.
If fewer than all the Series D-10 Preferred Shares held by any holder are
to be redeemed, the notice mailed to such holder will also specify the number,
and the method for selecting such number, of Series D-10 Preferred Shares to be
redeemed from such holder.
If full cumulative dividends on the Series D-10 Preferred Shares and any
Parity Shares have not been paid or declared and set apart for payment, the
Series D-10 Preferred Shares may not be redeemed in part and Vornado may not
purchase, redeem or otherwise acquire Series D-10 Preferred Shares or any Parity
Shares other than in exchange for Junior Shares; provided, however, that the
foregoing shall not prevent the exchange by Vornado of excess shares in order to
ensure that Vornado continues to meet the requirements for qualification as a
REIT. See "Description of Shares of Beneficial Ownership of Vornado Realty Trust
- Description of Preferred Shares of Vornado Realty Trust - Restrictions on
Ownership" beginning on page 41 of the accompanying prospectus for a discussion
of such purchases of excess shares by Vornado.
On and after the date fixed for redemption, provided that Vornado has made
available at the office of the registrar and transfer agent a sufficient amount
of cash to effect the redemption, dividends will cease to accumulate on the
Series D-10 Preferred Shares called for redemption (except that, in the case of
a redemption date after a dividend payment record date and prior to the related
payment date, holders of Series D-10 Preferred Shares on the dividend payment
record date will be entitled on such dividend payment date to receive the
dividend payable on such shares), such shares shall no longer be deemed to be
outstanding and all rights of the holders of such shares as holders of Series
D-10 Preferred Shares shall cease except the right to receive the cash payable
upon such redemption, without interest from the date of such redemption.
LIQUIDATION PREFERENCE
The holders of Series D-10 Preferred Shares will be entitled to receive in
the event of any liquidation, dissolution or winding up of Vornado, whether
voluntary or involuntary, $25.00 per Series D-10 Preferred Share (the
"Liquidation Preference") plus an amount per Series D-10 Preferred Share equal
to all dividends (whether or not earned or declared) accumulated and unpaid
thereon to the date of final distribution to such holders, and no more.
S-9
Until the holders of the Series D-10 Preferred Shares have been paid the
Liquidation Preference and all accrued and unpaid dividends in full, no payment
will be made to any holder of Junior Shares upon the liquidation, dissolution or
winding up of Vornado. If, upon any liquidation, dissolution or winding up of
Vornado, the assets of Vornado, or proceeds thereof, distributable among the
holders of the Series D-10 Preferred Shares are insufficient to pay in full the
Liquidation Preference and all accrued and unpaid dividends and the liquidation
preference and all accrued and unpaid dividends with respect to any other shares
of Parity Shares, then such assets, or the proceeds thereof, will be distributed
among the holders of Series D-10 Preferred Shares and any such Parity Shares
ratably in accordance with the respective amounts which would be payable on such
Series D-10 Preferred Shares and any such Parity Shares if all amounts payable
thereon were paid in full. None of (i) a consolidation or merger of Vornado with
one or more entities, (ii) a statutory share exchange by Vornado or (iii) a sale
or transfer of all or substantially all of Vornado's assets will be considered a
liquidation, dissolution or winding up, voluntary or involuntary, of Vornado.
VOTING RIGHTS
Except as indicated below, the holders of Series D-10 Preferred Shares will
have no voting rights.
If and whenever six quarterly dividends (whether or not consecutive)
payable on the Series D-10 Preferred Shares or any other Parity Shares are in
arrears, whether or not earned or declared, the number of trustees then
constituting the Board of Trustees of Vornado will be increased by two and the
holders of Series D-10 Preferred Shares, voting together as a single class with
the holders of any other series of Parity Shares (any such other series, the
"Voting Preferred Shares"), will have the right to elect two additional trustees
to serve on Vornado's Board of Trustees at an annual meeting of shareholders or
a properly called special meeting of the holders of the Series D-10 Preferred
Shares and such Voting Preferred Shares and at each subsequent annual meeting of
shareholders until all such dividends and dividends for the current quarterly
period on the Series D-10 Preferred Shares and such other Voting Preferred
Shares have been paid or declared and set aside for payment. Whenever all
arrears in dividends on the Series D-10 Preferred Shares and the Voting
Preferred Shares then outstanding have been paid and full dividends on the
Series D-10 Preferred Shares and the Voting Preferred Shares for the current
quarterly dividend period have been paid in full or declared and set apart for
payment in full, then the right of the holders of the Series D-10 Preferred
Shares and the Voting Preferred Shares to elect these two additional trustees
will cease, and the terms of office of these two trustees will forthwith
terminate and the number of members of the Board of Trustees will be reduced
accordingly. However, the right of the holders of the Series D-10 Preferred
Shares and the Voting Preferred Shares to elect two additional trustees will
again vest if and whenever six quarterly dividends are in arrears, as described
above.
The approval of two-thirds of the outstanding Series D-10 Preferred Shares
and all other series of Voting Preferred Shares, acting as a single class
regardless of Series either at a meeting of shareholders or by written consent,
is required in order to
- authorize the creation of, or the increase in the number of, either any
class or series of shares ranking senior to the Series D-10 Preferred
Shares or any security convertible into or exchangeable for such senior
shares, or
- amend, alter or repeal any provisions of the Declaration of Trust or
Articles Supplementary, whether by merger, consolidation or otherwise, to
affect materially and adversely the voting powers, rights or preferences
of the Series D-10 Preferred Shares or the Voting Preferred Shares.
No vote of the holders of Series D-10 Preferred Shares or Voting Preferred
Shares shall be required if, at or prior to the time when such an amendment,
alteration or repeal is to take effect, or when the issuance of these shares or
security convertible into these shares is to be made, provision is made to
redeem all of the Series D-10 Preferred Shares or Voting Preferred Shares, as
the case may be. In addition, any amendment to authorize any Junior or Parity
Shares, or to increase the number of Series D-10 Preferred Shares for the
purpose of issuance to existing holders of Series D-10 Preferred Shares at such
time shall not be deemed to materially and adversely affect the voting powers,
rights or preferences of the Series D-10 Preferred Shares. Additionally, a
merger, consolidation or sale of all or substantially all of the assets of
Vornado with respect to
S-10
which (1) Vornado is the surviving entity and the Series D-10 Preferred Shares
remain outstanding with terms materially unchanged in any respect adverse to the
holders or, (2) if Vornado does not survive, the surviving entity substitutes or
exchanges the Series D-10 Preferred Shares for securities having substantially
the same terms and rights as the Series D-10 Preferred Shares with respect to
distributions, voting rights and rights upon liquidation, dissolution or winding
up shall not be deemed to materially and adversely affect the voting powers,
rights or preferences of the Series D-10 Preferred Shares.
If the amendment, alteration or repeal would have a material adverse affect
on voting powers, rights or preferences of Series D-10 Preferred Shares and on
the holders of some but not all series of Voting Preferred Shares, the
affirmative vote of two-thirds of the holders of only those series similarly
affected voting as single class regardless of series would be required to
validate such an action.
An affirmative vote by two-thirds of the holders of the Series D-10
Preferred Shares would be required to approve an increase in the number of
Series D-10 Preferred Shares for the purpose of an issuance to persons other
than the existing holders thereof at such time.
CONVERSION RIGHTS
The Series D-10 Preferred Shares are not convertible into or exchangeable
for any other property or securities of Vornado.
RESTRICTIONS ON OWNERSHIP
For a description of restrictions on ownership of the Series D-10 Preferred
Shares, see the discussion under the heading "Description of Shares of
Beneficial Ownership of Vornado Realty Trust -- Description of Preferred Shares
of Vornado Realty Trust -- Restrictions on Ownership" beginning on page 41 of
accompanying prospectus. The Fund and certain affiliates of the Fund have been
granted a waiver by Vornado of the ownership limit in order to permit the
acquisition and ownership of the Series D-10 Preferred Shares being sold in the
offering. The waiver is not transferable.
TRANSFER AGENT, REGISTRAR, DIVIDEND DISBURSING AGENT AND REDEMPTION AGENT
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the Series D-10 Preferred Shares is Wachovia Bank, N.A., Charlotte,
North Carolina.
FEDERAL INCOME TAX CONSIDERATIONS
For a description of the U.S. Federal income tax considerations relating to
the Series D-10 Preferred Shares, please see "Federal Income Tax Considerations
- Taxation of Holders of Common Shares or Preferred Shares" beginning on page 60
of the accompanying prospectus.
PLAN OF DISTRIBUTION
Subject to the terms and conditions of a purchase agreement dated November
17, 2003, we have agreed to sell directly to the Fund, and the Fund has agreed
to purchase, 1,600,000 of our Series D-10 Preferred Shares. The purchase
agreement provides that the obligation of the Fund to purchase the Series D-10
Preferred Shares included in this offering is subject to the satisfaction of
certain other conditions.
VALIDITY OF THE SERIES D-10 PREFERRED SHARES
The validity of the Series D-10 Preferred Shares offered hereby will be
passed upon for Vornado by Venable LLP, Baltimore, Maryland.
S-11
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated into the accompanying prospectus by reference from
Vornado Realty Trust's annual report on Form 10-K for the year ended December
31, 2002 and from Vornado Realty L.P.'s annual report on Form 10-K for the year
ended December 31, 2002, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are also incorporated into the
accompanying prospectus by reference (which reports express an unqualified
opinion and include an explanatory paragraph referring to Vornado Realty Trust's
and Vornado Realty L.P.'s adoption of SFAS No. 142 "Goodwill and Other
Intangible Assets" on January 1, 2002), and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing. For more information, see "Experts" on page 82 of the
accompanying prospectus.
S-12
$862,990,505
Vornado Realty Trust
Common Shares
Preferred Shares
Depositary Shares
$2,000,000,000
Vornado Realty L.P.
Debt Securities
Vornado Realty Trust from time to time may offer to sell common shares and
preferred shares. The preferred shares may either be sold separately or
represented by depositary shares. Vornado Realty L.P. from time to time may
offer to sell debt securities. The debt securities may be exchangeable for
common or preferred shares of Vornado Realty Trust, and the preferred shares may
be convertible into common shares or into preferred shares of another series.
The total amount of common shares, preferred shares and depositary shares
offered under this prospectus will have an initial aggregate offering price of
up to $862,990,505, and the total amount of debt securities will have an initial
aggregate offering price of up to $2,000,000,000, or in either case the
equivalent amount in other currencies, currency units or composite currencies.
Vornado Realty Trust and Vornado Realty L.P. may offer and sell these
securities to or through one or more underwriters, dealers and agents or
directly to purchasers, on a continuous or delayed basis.
This prospectus describes some of the general terms that may apply to these
securities and the general manner in which they may be offered. The specific
terms of any securities to be offered, and the specific manner in which they may
be offered, will be described in a supplement to this prospectus.
Vornado Realty Trust's common shares are listed on the New York Stock
Exchange under the symbol "VNO," its Series A Preferred Shares are listed on the
NYSE under the symbol "VNO Pr A," its Series B Preferred Shares are listed on
the NYSE under the symbol "VNO Pr B" and its Series C Preferred Shares are
listed on the NYSE under the symbol "VNO Pr C." Where applicable, the prospectus
supplement will contain information on any listing on a securities exchange of
securities covered by that prospectus supplement.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR CERTAIN FACTORS RELEVANT TO AN
INVESTMENT IN THE SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------------
Prospectus dated August 28, 2003.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS AND
THE ACCOMPANYING PROSPECTUS SUPPLEMENT OR INCORPORATED BY REFERENCE IN THESE
DOCUMENTS. NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT. IF ANYONE PROVIDES
YOU WITH DIFFERENT, INCONSISTENT OR UNAUTHORIZED INFORMATION OR REPRESENTATIONS,
YOU MUST NOT RELY ON THEM. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT ARE AN OFFER TO SELL ONLY THE SECURITIES OFFERED BY THESE DOCUMENTS,
BUT ONLY UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO.
THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS
CURRENT ONLY AS OF THE DATE ON THE FRONT OF THOSE DOCUMENTS.
TABLE OF CONTENTS
PAGE
----
Available Information....................................... 1
Cautionary Statement Regarding Forward-Looking Statements... 2
Risk Factors................................................ 4
Vornado Realty Trust and Vornado Realty L.P. ............... 16
Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preference Dividends.......................... 17
Use of Proceeds............................................. 17
Description of Debt Securities of Vornado Realty L.P. ...... 18
Description of Shares of Beneficial Interest of Vornado
Realty Trust.............................................. 37
Legal Ownership and Book-Entry Issuance..................... 48
Federal Income Tax Considerations........................... 53
Plan of Distribution........................................ 69
Validity of the Securities.................................. 69
Experts..................................................... 70
-i-
AVAILABLE INFORMATION
Vornado Realty Trust and Vornado Realty L.P. are required to file annual,
quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy any documents filed by
us at the SEC's public reference room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our filings with the SEC are also available to the public
through the SEC's Internet site at http://www.sec.gov and through the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, on which Vornado
Realty Trust's common shares and Series A, B and C Preferred Shares are listed.
We have filed registration statements on Form S-3 with the SEC relating to
the securities covered by this prospectus. This prospectus is a part of the
registration statements and does not contain all of the information in the
registration statements. Whenever a reference is made in this prospectus to a
contract or other document, please be aware that the reference is only a summary
and that you should refer to the exhibits that are a part of the registration
statements for a copy of the contract or other document. You may review a copy
of the registration statements at the SEC's public reference room in Washington,
D.C., as well as through the SEC's Internet site.
The SEC's rules allow us to "incorporate by reference" information into
this prospectus. This means that we can disclose important information to you by
referring you to another document. Any information referred to in this way is
considered part of this prospectus from the date we file that document. Any
reports filed by us with the SEC after the date of this prospectus and before
the date that the offering of the securities by means of this prospectus is
terminated will automatically update and, where applicable, supersede any
information contained in this prospectus or incorporated by reference in this
prospectus.
Vornado Realty Trust and Vornado Realty L.P. incorporate by reference into
this prospectus the following documents or information filed with the SEC:
(1) Annual reports of Vornado Realty Trust and Vornado Realty L.P. on
Forms 10-K for the fiscal year ended December 31, 2002 (File Nos. 001-11954
and 000-22635);
(2) Current report on Form 8-K of Vornado Realty Trust dated May 28,
2003 and filed with the SEC on June 2, 2003 (File No. 001-11954);
(3) Quarterly reports of Vornado Realty Trust on Form 10-Q for the
quarters ended March 31, 2003 and June 30, 2003 (File No. 001-11954), filed
with the SEC on May 8, 2003 and August 8, 2003;
(4) Quarterly reports of Vornado Realty L.P. on Form 10-Q for the
quarters ended March 31, 2003 and June 30, 2003 (File No. 000-22685), filed
with the SEC on May 15, 2003 and August 13, 2003;
(5) The description of Vornado Realty Trust's common shares contained
in Vornado Realty Trust's registration statement on Form 8-B (File No.
001-11954), filed with the SEC on May 10, 1993;
(6) The description of Vornado Realty Trust's Series A Preferred
Shares contained in Vornado Realty Trust's registration statement on Form
8-A (File No. 001-11954), filed with the SEC on April 3, 1997;
(7) The description of Vornado Realty Trust's Series B Preferred
Shares contained in Vornado Realty Trust's registration statement on Form
8-A (File No. 001-11954), filed with the SEC on March 15, 1999;
(8) The description of Vornado Realty Trust's Series C Preferred
Shares contained in Vornado Realty Trust's registration statement on Form
8-A (File No. 001-11954), filed with the SEC on May 19, 1999; and
(9) All documents filed by Vornado Realty Trust and Vornado Realty
L.P. under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 after the date of this prospectus and before the termination of
this offering or after the date of the initial registration statement and
before
1
effectiveness of the registration statement, except that the information
referred to in Item 402(a)(8) of Regulation S-K of the SEC is not
incorporated by reference into this prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon his or her written or oral
request, a copy of any or all documents referred to above which have been or may
be incorporated by reference into this prospectus, excluding exhibits to those
documents unless they are specifically incorporated by reference into those
documents. You can request those documents from our corporate secretary, 210
Route 4 East, Paramus, New Jersey 07652, telephone (201) 587-1000.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference in it,
contains forward-looking statements with respect to our financial condition,
results of operations and business. These statements may be made directly in
this document or they may be made part of this document by reference to other
documents filed with the SEC, which is known as "incorporation by reference."
You can find many of these statements by looking for words such as "believes,"
"expects," "anticipates," "estimates," "intends," "plans" or similar expressions
in this prospectus or the documents incorporated by reference. Unless the
context otherwise requires or as otherwise specified, references in this
prospectus to "we," "us" or "our" refer to Vornado Realty Trust and its
subsidiaries, including Vornado Realty L.P., except where we make clear that we
mean only the parent company, Vornado Realty Trust.
These forward-looking statements are subject to numerous assumptions, risks
and uncertainties. Factors that may cause actual results to differ materially
from those contemplated by the forward-looking statements include, among others,
those listed under the caption "Risk Factors" in this prospectus as well as the
following possibilities:
- national, regional and local economic conditions;
- the consequences of any armed conflict involving, or terrorist attack
against, the United States;
- our ability to secure adequate insurance;
- local conditions such as an oversupply of space or a reduction in demand
for real estate in the area;
- competition from other available space;
- whether tenants consider a property attractive;
- the financial condition of our tenants, including the extent of tenant
bankruptcies or defaults;
- whether we are able to pass some or all of any increased operating costs
we experience through to our tenants;
- how well we manage our properties;
- increased interest rates;
- increases in real estate taxes and other expenses;
- decreases in market rental rates;
- the timing and costs associated with property improvements and rentals;
- changes in taxation or zoning laws;
- government regulations;
- Vornado Realty Trust's failure to continue to qualify as a real estate
investment trust;
- availability of financing on acceptable terms or at all;
- potential liability under environmental or other laws or regulations; and
2
- general competitive factors.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. Our future results, financial condition
and business may differ materially from those expressed in these forward-looking
statements. Many of the factors that will determine these items are beyond our
ability to control or predict. For these statements, we claim the protection of
the safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995. You are cautioned not to place undue
reliance on our forward-looking statements, which speak only as of the date of
this prospectus or, if applicable, the date of the applicable document
incorporated by reference.
All subsequent written and oral forward-looking statements attributable to
us or any person acting on our behalf are expressly qualified in their entirety
by the cautionary statements contained or referred to in this section. We do not
undertake any obligation to release publicly any revisions to our
forward-looking statements to reflect events or circumstances after the date of
this prospectus or to reflect the occurrence of unanticipated events. For more
information on the uncertainty of forward-looking statements, see "Risk Factors"
in this prospectus.
3
RISK FACTORS
An investment in our securities involves risks. You should carefully
consider, among other factors, the matters described below before deciding to
purchase our securities.
REAL ESTATE INVESTMENTS' VALUE AND INCOME FLUCTUATE DUE TO VARIOUS FACTORS.
THE VALUE OF REAL ESTATE FLUCTUATES DEPENDING ON CONDITIONS IN THE GENERAL
ECONOMY AND THE REAL ESTATE BUSINESS. THESE CONDITIONS MAY ALSO LIMIT OUR
REVENUES AND AVAILABLE CASH.
The factors that affect the value of our real estate include, among other
things:
- national, regional and local economic conditions;
- the consequences of any armed conflict involving, or terrorist attack
against, the United States;
- our ability to secure adequate insurance;
- local conditions such as an oversupply of space or a reduction in demand
for real estate in the area;
- competition from other available space;
- whether tenants consider a property attractive;
- the financial condition of our tenants, including the extent of tenant
bankruptcies or defaults;
- whether we are able to pass some or all of any increased operating costs
we experience through to tenants;
- how well we manage our properties;
- increased interest rates;
- increases in real estate taxes and other expenses;
- decreases in market rental rates;
- the timing and costs associated with property improvements and rentals;
- changes in taxation or zoning laws;
- government regulations;
- Vornado Realty Trust's failure to continue to qualify as a real estate
investment trust;
- availability of financing on acceptable terms or at all;
- potential liability under environmental or other laws or regulations; and
- general competitive factors.
The rents we receive and the occupancy levels at our properties may decline
as a result of adverse changes in any of these factors. If our rental revenues
decline, we generally would expect to have less cash available to distribute to
the holders of our securities. In addition, some of our major expenses,
including mortgage payments, real estate taxes and maintenance costs, generally
do not decline when the related rents decline. If rents decline while costs
remain the same, our income and funds available for distribution to our security
holders would decline.
WE DEPEND ON LEASING SPACE TO TENANTS ON ECONOMICALLY FAVORABLE TERMS AND
COLLECTING RENT FROM OUR TENANTS, WHO MAY NOT BE ABLE TO PAY.
Our financial results depend on leasing space in our properties to tenants
on economically favorable terms. In addition, because substantially all of our
income comes from rentals of real property, our income and funds available for
distribution to our security holders will decrease if a significant number of
our tenants cannot pay their rent. If a tenant does not pay its rent, we might
not be able to enforce our rights as landlord
4
without delays and might incur substantial legal costs. For information
regarding the bankruptcy of our tenants, see "-- Bankruptcy of tenants may
decrease our revenues and available cash" below.
BANKRUPTCY OF TENANTS MAY DECREASE OUR REVENUES AND AVAILABLE CASH.
A number of companies, including some of our tenants, have declared
bankruptcy in recent years, and other tenants may declare bankruptcy or become
insolvent in the future. If a major tenant declares bankruptcy or becomes
insolvent, the rental property where it leases space may have lower revenues and
operational difficulties, and, in the case of our shopping centers, we may have
difficulty leasing the remainder of the affected property. Our leases generally
do not contain restrictions designed to ensure the creditworthiness of our
tenants. As a result, the bankruptcy or insolvency of a major tenant could
result in a lower level of funds from operations available for distribution to
our security holders.
U.S. Airways Group Inc. leases its headquarters in Washington, D.C. from
us. U.S. Airways has been adversely affected by the downturn in air travel as a
result of the terrorist attacks and economic decline. On August 11, 2002, U.S.
Airways filed for protection under Chapter 11 of the U.S. Bankruptcy Code.
Effective January 1, 2003, we agreed to amend our lease with U.S. Airways at
Crystal City to (a) reduce the tenant's space by 90,732 square feet to 205,600
square feet, (b) reduce the annual escalated rent from $36.00 to $29.75 per
square foot with 2.5% annual base rent escalations, (c) provide the tenant with
up to $1,200,000 of tenant allowances and (d) loan the tenant up to $1,000,000
at 9% per annum for additional tenant improvements which is to be repaid over
the lease term. This lease modification has been approved by the Bankruptcy
Court.
Stop & Shop leases a number of our retail locations and guarantees the
leases of a number of our former Bradlees retail locations. In February 2003,
Koninklijke Ahold NV, parent of Stop & Shop, announced that it overstated its
2002 and 2001 earnings by at least $500 million and is under investigation by
the U.S. Justice Department and Securities and Exchange Commission. We cannot
predict what effect, if any, this situation may have on Stop & Shop's ability to
satisfy its obligation under the Bradlees guarantees and rent for existing Stop
& Shop leases aggregating approximately $10.5 million per annum.
The risk that some of our tenants may declare bankruptcy is higher because
of the September 11, 2001 terrorist attacks and the resulting decline in the
economy. This is particularly true for our tenants that are dependent on the air
or travel industries as a primary source of revenue.
SOME OF OUR POTENTIAL LOSSES MAY NOT BE COVERED BY INSURANCE.
We carry comprehensive general liability and all risk property insurance
(fire, flood, extended coverage and rental loss insurance) with respect to our
assets and are at risk for financial loss in excess of the policies limits,
which loss could be material.
Our all risk insurance policies in effect before September 11, 2001 did not
expressly exclude coverage for hostile acts, except for acts of war. Since
September 11, 2001 and prior to the enactment of the Terrorism Risk Insurance
Act of 2002, as described below, insurance companies have for the most part
excluded terrorist acts from coverage in all risk policies. We were generally
unable to obtain all risk insurance that includes coverage for terrorist acts
for policies we renewed during that period for each of our businesses. In 2002,
we obtained $200,000,000 of separate aggregate coverage for terrorist acts for
each of our New York City office, Washington, D.C. office, Retail and
Merchandise Mart businesses and $60,000,000 for our Temperature Controlled
Logistics business.
Our debt instruments, consisting of mortgage loans secured by our
properties (which are generally non-recourse to us), Vornado Realty L.P.'s
senior unsecured notes due 2007, and our revolving credit agreement, contain
customary covenants requiring us to maintain insurance. There can be no
assurance that the lenders under these instruments in place at that time will
not take the position that since our all risk insurance policies differ from
policies put into effect prior to September 11, 2001 as to coverage for
terrorist acts, there are breaches of these debt instruments that allow the
lenders to declare an event of default and accelerate repayment of debt. In
addition, if lenders insist on coverage for these risks as it existed prior to
September 11,
5
2001, it could adversely affect our ability to finance and/or refinance our
properties and to expand our portfolio.
On November 26, 2002, the Terrorism Risk Insurance Act of 2002 was signed
into law. Under this new legislation, through 2004 (with a possible extension
through 2005), regulated insurers must offer coverage in their commercial
property and casualty policies (including existing policies) for losses
resulting from defined "acts of terrorism". As a result of the legislation, in
March 2003, we obtained $300 million of per occurrence coverage for Certified
terrorist acts, as defined in the legislation, which includes $60 million for
Non-Certified Acts, for our New York City office and Washington, D.C. office and
$100 million for Non-Certified Acts for our Merchandise Mart businesses.
Additionally, in June 2003 we obtained for our Retail business $500 million of
per occurrence coverage for Certified terrorist acts, as defined in the
legislation, which includes $150 million for Non-Certified Acts. We maintain $60
million of separate aggregate coverage for terrorist acts that we had in 2002
for our Temperature Controlled Logistics businesses (which has been renewed as
of January 1, 2003). Therefore, we are at risk for financial loss in excess of
these limits for terrorist acts as defined by the policies and the legislation,
which loss could be material.
WE MAY ACQUIRE OR DEVELOP NEW PROPERTIES, AND THIS MAY CREATE RISKS.
We may acquire or develop properties or acquire other real estate companies
when we believe that an acquisition or development is consistent with our
business strategies. We may not, however, succeed in consummating desired
acquisitions or in completing developments on time or within our budget. We also
might not succeed in leasing newly developed or acquired properties at rents
sufficient to cover their costs of acquisition or development and operations.
We have experienced rapid growth in recent years, increasing our total
assets from approximately $565,000,000 at December 31, 1996 to approximately
$8,971,580,000 at June 30, 2003. This growth included the acquisition of Charles
E. Smith Commercial Realty L.P. on January 1, 2002 which increased our total
assets as of that date by $2,506,000,000, of which $1,758,000,000 is
attributable to the acquisition of assets and $748,000,000 is attributable to
Charles E. Smith Commercial Realty L.P. becoming a wholly owned subsidiary of
Vornado Realty L.P. and therefore being consolidated rather than accounted for
under the equity method. We may not be able to maintain a similar rate of growth
in the future, or manage our past and any future growth effectively. Our failure
to do so may have a material adverse effect on our financial condition and
results of operations. Difficulties in integrating acquisitions may prove costly
or time-consuming and could divert management's attention.
WE MAY NOT BE PERMITTED TO DISPOSE OF CERTAIN PROPERTIES OR PAY DOWN THE DEBT
ASSOCIATED WITH THOSE PROPERTIES WHEN WE MIGHT OTHERWISE DESIRE TO DO SO
WITHOUT INCURRING ADDITIONAL COSTS.
As part of an acquisition of a property, we may agree with the seller that
we will not dispose of the acquired properties or reduce the mortgage
indebtedness on them for significant periods of time unless we pay certain of
the resulting tax costs of the seller. These agreements could result in our
holding on to properties that we would otherwise sell and not paying down or
refinancing indebtedness that we would otherwise pay down or refinance.
IT MAY BE DIFFICULT TO BUY AND SELL REAL ESTATE QUICKLY, AND TRANSFER
RESTRICTIONS APPLY TO SOME OF OUR MORTGAGED PROPERTIES.
Equity real estate investments are relatively difficult to buy and sell
quickly. We therefore have limited ability to vary our portfolio promptly in
response to changes in economic or other conditions. Some of our properties are
mortgaged to secure payment of indebtedness. If we were unable to meet our
mortgage payments, the lender could foreclose on the properties and we could
incur a loss. In addition, if we wish to dispose of one or more of the mortgaged
properties, we might not be able to obtain release of the lien on the mortgaged
property. If a lender forecloses on a mortgaged property or if a mortgage lien
prevents us from selling a property, our funds available for distribution to our
security holders could decline. For information relating to the mortgages on our
properties, see "Management's Discussion and Analysis of Financial
6
Condition and Results of Operations -- Liquidity and Capital Resources" in our
annual report on Form 10-K for the year ended December 31, 2002 and quarterly
report on Form 10-Q for the quarter ended June 30, 2003 and the notes to our
consolidated financial statements in the same reports.
A SIGNIFICANT PROPORTION OF OUR PROPERTIES ARE IN THE NEW YORK CITY/NEW JERSEY
AND WASHINGTON, D.C. METROPOLITAN AREAS AND ARE AFFECTED BY THE ECONOMIC
CYCLES AND RISKS INHERENT TO THOSE REGIONS.
During 2002, 86% of our income before gains in sale of real estate and
cumulative effect of change in accounting principle came from properties located
in New Jersey and the New York City and Washington, D.C. metropolitan areas.
We may continue to concentrate a significant portion of our future
acquisitions in New Jersey and the New York City and Washington, D.C.
metropolitan areas. Like other real estate markets, the real estate markets in
these areas have experienced economic downturns in the past, and we cannot
predict how the current economic conditions will impact these markets in both
the short and long term. Further declines in the economy or a decline in the
real estate markets in these areas could hurt our financial performance and the
value of our properties. The factors affecting economic conditions in these
regions include:
- business layoffs or downsizing;
- industry slowdowns;
- relocations of businesses;
- changing demographics;
- increased telecommuting and use of alternative work places;
- financial performance and productivity of the publishing, advertising,
financial, technology, retail, insurance and real estate industries;
- infrastructure quality; and
- any oversupply of or reduced demand for real estate.
It is impossible for us to assess the future effects of the current
uncertain trends in the economic and investment climates of the New York
City/New Jersey and Washington, D.C. regions, and more generally of the United
States, on the real estate markets in these areas. If these conditions persist,
they may adversely affect our businesses and future profitability.
ON JANUARY 1, 2002, WE COMPLETED THE ACQUISITION OF THE 66% INTEREST IN
CHARLES E. SMITH COMMERCIAL REALTY L.P. THAT WE DID NOT PREVIOUSLY OWN. THE
TERMS OF THE MERGER RESTRICT OUR ABILITY TO SELL OR OTHERWISE DISPOSE OF, OR
TO FINANCE OR REFINANCE, THE PROPERTIES FORMERLY OWNED BY CHARLES E. SMITH
COMMERCIAL REALTY L.P., WHICH COULD RESULT IN OUR INABILITY TO SELL THESE
PROPERTIES AT AN OPPORTUNE TIME AND INCREASED COSTS TO US.
We have agreed to restrictions on our ability to sell, finance, refinance
and, in some instances, pay down existing financing on the Charles E. Smith
Commercial Realty L.P. properties for a period of up to 20 years, under a tax
reporting and protection agreement that we entered into at the closing of the
merger. This agreement prohibits us from taking these actions unless Vornado
Realty L.P. also pays the contributing partners based on their tax liabilities
as a result of the sale. These arrangements may significantly reduce our ability
to sell, finance or repay indebtedness secured by the subject properties or
assets.
In addition, subject to limited exceptions, we are restricted from selling
or otherwise transferring or disposing of certain properties located in the
Crystal City area of Arlington, Virginia or an interest in our division that
manages the majority of our office properties in the Washington, D.C.
metropolitan area, which we refer to as the "Smith Division," for a period of 12
years with respect to certain properties located in the Crystal City area of
Arlington, Virginia or six years with respect to an interest in the Smith
Division. These
7
restrictions, which currently cover approximately 13.0 million square feet of
space, could result in our inability to sell these properties or an interest in
the Smith Division at an opportune time and increased costs to us.
WE MAY INCUR COSTS TO COMPLY WITH ENVIRONMENTAL LAWS.
Our operations and properties are subject to various federal, state and
local laws, ordinances and regulations concerning the protection of the
environment, including air and water quality, hazardous substances and health
and safety. Under certain of these environmental laws, a current or previous
owner or operator of real estate may be required to investigate and clean up
hazardous or toxic substances released at a property. The owner or operator may
also be held liable to a governmental entity or to third parties for property
damage or personal injuries and for investigation and clean-up costs incurred by
those parties because of the contamination. These laws often impose liability
without regard to whether the owner or operator knew of the release of the
substances or caused the release. The presence of contamination or the failure
to remediate contamination may impair our ability to sell or lease real estate
or to borrow using the real estate as collateral. Other laws and regulations
govern indoor and outdoor air quality including those that can require the
abatement or removal of asbestos-containing materials in the event of damages,
demolition, renovations or remodeling and also govern emissions of and exposure
to asbestos fibers in the air. The maintenance and removal of lead paint and
certain electrical equipment containing polychlorinated biphenyls (PCBs) and
underground storage tanks are also regulated by federal and state laws. We could
incur fines for environmental compliance and be held liable for the costs of
remedial action with respect to the foregoing regulated substances or tanks or
related claims arising out of environmental contamination or exposure at or from
our properties.
Each of our properties has been subjected to varying degrees of
environmental assessment at various times. The environmental assessments did not
reveal any material environmental condition. However, identification of new
compliance concerns or undiscovered areas of contamination, changes in the
extent or known scope of contamination, discovery of additional sites, human
exposure to the contamination or changes in cleanup or compliance requirements
could result in significant costs to us.
REAL ESTATE IS A COMPETITIVE BUSINESS.
Our business segments -- Office, Retail, Merchandise Mart Properties,
Temperature Controlled Logistics, and Other -- operate in highly competitive
environments. We have a large concentration of properties in the New York City
metropolitan area and in the Washington, D.C. and Northern Virginia area. We
compete with a large number of real estate property owners and developers.
Principal factors of competition are rent charged, attractiveness of location
and quality and breadth of services provided. Our success depends upon, among
other factors, trends of the national and local economies, financial condition
and operating results of current and prospective tenants and customers,
availability and cost of capital, construction and renovation costs, taxes,
governmental regulations, legislation and population trends.
THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001 IN NEW YORK CITY AND THE WASHINGTON,
D.C. AREA MAY ADVERSELY AFFECT THE VALUE OF OUR PROPERTIES AND OUR ABILITY TO
GENERATE CASH FLOW.
THERE MAY BE A DECREASE IN DEMAND FOR SPACE IN LARGE METROPOLITAN AREAS THAT
ARE CONSIDERED AT RISK FOR FUTURE TERRORIST ATTACKS, AND THIS DECREASE MAY
REDUCE OUR REVENUES FROM PROPERTY RENTALS.
We have significant investments in large metropolitan areas, including the
New York/New Jersey, Washington, D.C. and Chicago metropolitan areas. In the
aftermath of the terrorist attacks, tenants in these areas may choose to
relocate their business to less populated, lower-profile areas of the United
States that are not as likely to be targets of future terrorist activity. This
in turn would trigger a decrease in the demand for space in these areas, which
could increase vacancies in our properties and force us to lease our properties
on less favorable terms. As a result, the value of our properties and the level
of our revenues could decline materially.
8
OUR INVESTMENT IN HOTEL PENNSYLVANIA IS DEPENDENT ON THE TRAVEL INDUSTRY AND
THAT INVESTMENT HAS BEEN AND MAY CONTINUE TO BE IMPACTED SEVERELY BY THE
TERRORIST ATTACKS AND THE CURRENT ECONOMIC DOWNTURN.
Our investment in Hotel Pennsylvania is directly dependent on the travel
industry generally and the number of visitors to New York City in particular.
Since September 11, 2001, there has been a substantial decline in travel and
tourism generally, and in particular in New York City. Accordingly, there has
been a significant reduction in occupancy at Hotel Pennsylvania. As a result,
revenues generated by this investment have been impacted severely by that
decline, and we expect this impact on revenues to continue.
ALL OF OUR TEMPERATURE CONTROLLED LOGISTICS WAREHOUSES ARE LEASED TO ONE TENANT,
AND THAT TENANT IS EXPERIENCING OPERATING DIFFICULTIES.
Vornado Realty L.P. indirectly owns a 60% interest in a partnership, which
we refer to as the "Vornado Crescent Portland Partnership," that owns 88 cold
storage warehouses nationwide with an aggregate of approximately 441.5 million
cubic feet of refrigerated, frozen and dry storage space. The Vornado Crescent
Portland Partnership sold all of the non-real estate assets encompassing the
operations of the temperature controlled business to a new partnership named
AmeriCold Logistics owned 60% by Vornado Operating Company, which we refer to as
"Vornado Operating," and 40% by Crescent Operating Inc. AmeriCold Logistics
leases the underlying temperature controlled warehouses used in this business
from the Vornado Crescent Portland Partnership, which continues to own the real
estate. During 2002, AmeriCold Logistics generated approximately 4.5% of Vornado
Realty Trust's income before gains on sale of real estate and cumulative effect
of change in accounting principle. The leases, as amended, generally have a
15-year term with two five-year renewal options and provide for the payment of
fixed base rent and percentage rent based on revenue AmeriCold Logistics
receives from its customers. The contractual rent for 2002 was $150,000,000. The
landlord's share of annual maintenance capital expenditures is $9,500,000. In
accordance with the leases, AmeriCold Logistics deferred payment of $32,248,000
of 2002 rent due to the landlord, of which our share was $19,349,000 and
$18,505,000 of rent due for the six months ended June 30, 2003, of which our
share was $11,103,000. Based on the joint venture's policy of recognizing rental
income when earned and collection is assured or cash is received, the joint
venture did not recognize this rent in the year ended December 31, 2002 or the
quarter ended June 30, 2003. At June 30, 2003, our share of the joint venture's
total deferred rent receivable from the tenant is $35,452,000. On December 31,
2001, the landlord released the tenant from its obligation to pay $39,812,000 of
rent deferred in 2001 and 2000, of which our share was $23,887,000. This amount
equaled the rent which was not recognized as income by the joint venture and
accordingly had no profit and loss effect to us. On March 7, 2003, AmeriCold
Logistics and the Landlord extended the deferred rent period to December 31,
2004 from December 31, 2003.
To the extent that the operations of AmeriCold Logistics may affect its
ability to pay rent, including percentage rent due under the leases, we
indirectly bear the risks associated with AmeriCold Logistics' cold storage
business. The cold storage business is extremely competitive. Factors affecting
AmeriCold Logistics' ability to compete include, among others, (a) warehouse
locations, (b) customer mix and (c) availability, quality and price of
additional services.
WE MAY NOT BE ABLE TO OBTAIN CAPITAL TO MAKE INVESTMENTS.
We depend primarily on external financing to fund the growth of our
business. This is because one of the requirements of the Internal Revenue Code
of 1986, as amended, for a REIT is that it distribute 90% of its net taxable
income, excluding net capital gains, to its shareholders. Our access to debt or
equity financing depends on banks' willingness to lend and on conditions in the
capital markets. We and other companies in the real estate industry have
experienced limited availability of bank loans and capital markets financing
from time to time. Although we believe that we will be able to finance any
investments we wish to make in the foreseeable future, financing other than what
we already have available might not be available on acceptable terms.
For information about our available sources of funds, see "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" in our annual report on
9
Form 10-K for the year ended December 31, 2002 and quarterly report on Form 10-Q
for the quarter ended June 30, 2003 and the notes to the consolidated financial
statements in the same reports.
OUR OWNERSHIP STRUCTURE AND RELATED-PARTY TRANSACTIONS MAY GIVE RISE TO
CONFLICTS OF INTEREST.
STEVEN ROTH AND INTERSTATE PROPERTIES MAY EXERCISE SUBSTANTIAL INFLUENCE OVER
US. THEY AND SOME OF OUR OTHER TRUSTEES AND OFFICERS HAVE INTERESTS OR
POSITIONS IN OTHER ENTITIES THAT MAY COMPETE WITH US.
As of June 30, 2003, Interstate Properties, a New Jersey general
partnership, and its partners owned approximately 12.9% of the common shares of
Vornado Realty Trust and approximately 27.5% of the common stock of Alexander's,
Inc., and beneficially owned approximately 7.9% of the common stock of Vornado
Operating (approximately 17.0% assuming redemption of 447,017 units of Vornado
Operating L.P., the operating subsidiary of Vornado Operating, that are
beneficially owned by Interstate Properties and redeemable for common stock of
Vornado Operating). Steven Roth, David Mandelbaum and Russell B. Wight, Jr. are
the three partners of Interstate Properties. Mr. Roth is the Chairman of the
Board and Chief Executive Officer of Vornado Realty Trust, the managing general
partner of Interstate Properties, the Chief Executive Officer and a director of
Alexander's and the Chairman of the Board and Chief Executive Officer of Vornado
Operating. Mr. Wight is a trustee of Vornado Realty Trust and is also a director
of both Alexander's and Vornado Operating. Mr. Mandelbaum is a trustee of
Vornado Realty Trust and is also a director of Alexander's.
As of June 30, 2003, we owned 33.1% of the outstanding common stock of
Alexander's. Alexander's is a REIT engaged in leasing, managing, developing and
redeveloping properties, focusing primarily on the locations where its
department stores operated before they ceased operations in 1992. Alexander's
has six properties, which are located in the New York City metropolitan area.
Mr. Roth and Michael D. Fascitelli, the President and a trustee of Vornado
Realty Trust, are directors of Alexander's. Messrs. Mandelbaum, Richard R. West
and Wight are trustees of Vornado Realty Trust and are also directors of
Alexander's.
Because of these overlapping interests, Mr. Roth and Interstate Properties
may have substantial influence over Vornado Realty Trust, Alexander's and
Vornado Operating and on the outcome of any matters submitted to Vornado Realty
Trust's, Alexander's or Vornado Operating's shareholders for approval. In
addition, certain decisions concerning our operations or financial structure may
present conflicts of interest among Messrs. Roth, Mandelbaum and Wight and
Interstate Properties and our other security holders. In addition, Mr. Roth and
Interstate Properties may in the future engage in a wide variety of activities
in the real estate business which may result in conflicts of interest with
respect to matters affecting Vornado Realty Trust, Alexander's or Vornado
Operating, such as which of these entities or persons, if any, may take
advantage of potential business opportunities, the business focus of these
entities, the types of properties and geographic locations in which these
entities make investments, potential competition between business activities
conducted, or sought to be conducted, by Vornado Realty Trust, Interstate
Properties, Alexander's and Vornado Operating, competition for properties and
tenants, possible corporate transactions such as acquisitions and other
strategic decisions affecting the future of these entities.
Vornado Realty Trust currently manages and leases the real estate assets of
Interstate Properties under a management agreement for which Vornado Realty
Trust receives an annual fee equal to 4% of base rent and percentage rent and
certain other commissions. The management agreement has a term of one year and
is automatically renewable unless terminated by either of the parties on 60
days' notice at the end of the term. Vornado Realty Trust earned $1,450,000 of
management fees under the management agreement for the year ended December 31,
2002 and $563,000 for the six months ended June 30, 2003. Because Vornado Realty
Trust and Interstate Properties are controlled by the same persons, as described
above, the terms of the management agreement and any future agreements between
us and Interstate Properties may not be comparable to those we could have
negotiated with an unaffiliated third party.
10
WE ENGAGE IN TRANSACTIONS WITH VORNADO OPERATING ON TERMS THAT MAY OR MAY NOT
BE COMPARABLE TO THOSE WE COULD NEGOTIATE WITH UNAFFILIATED THIRD PARTIES.
In October 1998, Vornado Operating was spun off from Vornado Realty Trust
in order to own assets that Vornado Realty Trust could not itself own and
conduct activities that Vornado Realty Trust could not itself conduct.
In addition to being trustees of Vornado Realty Trust, Messrs. Roth,
Fascitelli, West and Wight are directors of Vornado Operating. Mr. Roth is also
Chairman of the Board and Chief Executive Officer of Vornado Operating, Mr.
Fascitelli is also President of Vornado Operating, and certain other members of
Vornado Realty Trust's senior management hold corresponding positions with
Vornado Operating.
Vornado Realty L.P. entered into a $75,000,000 unsecured revolving credit
facility with Vornado Operating that expires on December 31, 2004. Borrowings
under the revolving credit agreement bear interest at LIBOR plus 3%. Vornado
Realty L.P. receives an annual commitment fee equal to 1% on the average daily
unused portion of the facility. Vornado Operating is not required to pay any
amortization under the revolving credit agreement during its term. The revolving
credit agreement prohibits Vornado Operating from incurring indebtedness to
third parties, other than certain purchase money debt and certain other
exceptions, and prohibits Vornado Operating from paying dividends. As of July
31, 2003, there was no outstanding balance under the revolving credit agreement.
Vornado Realty L.P. and Vornado Operating are parties to an agreement under
which, among other things, (a) Vornado Realty L.P. will offer Vornado Operating,
under certain circumstances, an opportunity to become the lessee of certain real
property owned now or in the future by Vornado Realty L.P. under mutually
satisfactory lease terms and (b) Vornado Operating will not make any real estate
investment or other investments known as REIT-qualified investments unless it
first offers Vornado Realty L.P. the opportunity to make the investment and
Vornado Realty L.P. has rejected that opportunity. Under this agreement, Vornado
Realty L.P. provides Vornado Operating with administrative, corporate,
accounting, financial, insurance, legal, tax, data processing, human resources
and operational services. For these services, Vornado Operating compensates
Vornado Realty L.P. in an amount determined in good faith by Vornado Realty L.P.
as the amount an unaffiliated third party would charge Vornado Operating for
comparable services and reimburses Vornado Realty L.P. for certain costs
incurred and paid to third parties on behalf of Vornado Operating. Under this
agreement, compensation for these services was approximately $330,000, $371,000
and $330,000 for the years ended December 31, 2000, 2001 and 2002, respectively,
and $82,500 for the three months ended June 30, 2003. Vornado Operating and
Vornado Realty L.P. each have the right to terminate this agreement if the other
party is in material default of the agreement or upon 90 days' written notice to
the other party at any time after December 31, 2003. In addition, Vornado Realty
L.P. has the right to terminate this agreement upon a change in control of
Vornado Operating.
Vornado Operating's restated certificate of incorporation specifies that
one of its corporate purposes is to perform this agreement and, for so long as
the agreement remains in effect, prohibits Vornado Operating from making any
real estate investment or other REIT-qualified investment without first offering
the opportunity to Vornado Realty L.P. in the manner specified in this
agreement.
We and Vornado Operating may enter into additional transactions in the
future. Because we and Vornado Operating share common senior management and
because a majority of the trustees of Vornado Realty Trust also constitute the
majority of the directors of Vornado Operating, the terms of the foregoing
agreements and any future agreements between us and Vornado Operating may not be
comparable to those we could have negotiated with an unaffiliated third party.
THERE MAY BE CONFLICTS OF INTEREST BETWEEN ALEXANDER'S, INC. AND US.
As of June 30, 2003, we owned 33.1% of the outstanding common stock of
Alexander's. Alexander's is a REIT engaged in leasing, managing, developing and
redeveloping properties, focusing primarily on the locations where its
department stores operated before they ceased operations in 1992. Alexander's
has six properties. Interstate Properties, which is further described above,
owned an additional 27.5% of the
11
outstanding common stock of Alexander's as of June 30, 2003. Mr. Roth, Chairman
of the Board and Chief Executive Officer of Vornado Realty Trust, is Chief
Executive Officer and a director of Alexander's, and Mr. Fascitelli, President
and a trustee of Vornado, is President and a director of Alexander's. Messrs.
Mandelbaum, West and Wight, trustees of Vornado Realty Trust, are also directors
of Alexander's. Alexander's common stock is listed on the New York Stock
Exchange under the symbol "ALX."
At June 30, 2003, Vornado Realty L.P. had loans receivable from Alexander's
of $124,000,000 at an interest rate of 12.48%. These loans mature on the earlier
of January 3, 2006 or the date that Alexander's Lexington Avenue construction
loan is repaid in full. Vornado Realty L.P. manages, develops and leases the
Alexander's properties under management and development agreements and leasing
agreements under which Vornado Realty L.P. receives annual fees from
Alexander's. These agreements have a one-year term expiring in March of each
year, except that the Lexington Avenue management and development agreements
have a term lasting until substantial completion of development of the Lexington
Avenue property, and are all automatically renewable. Because Vornado Realty
Trust and Alexander's share common senior management and because a majority of
the trustees of Vornado Realty Trust also constitute the majority of the
directors of Alexander's, the terms of the foregoing agreements and any future
agreements between us and Alexander's may not be comparable to those we could
have negotiated with an unaffiliated third party.
For a description of Interstate Properties' ownership of Vornado Realty
Trust, Vornado Operating and Alexander's, see "-- Steven Roth and Interstate
Properties may exercise substantial influence over us. They and some of our
other trustees and officers have interests or positions in other entities that
may compete with us" above.
ARCHSTONE-SMITH TRUST PROVIDES SERVICES TO US UNDER AGREEMENTS THAT WERE NOT
NEGOTIATED AT ARM'S LENGTH.
We have agreements with the Archstone-Smith Trust under which we lease
office space to Archstone-Smith Trust and share the cost of certain
office-related services with it that were not negotiated at arms' length. These
agreements were entered into by Charles E. Smith Commercial Realty in 1997,
before our January 1, 2002 acquisition of Charles E. Smith Commercial Realty, at
a time when Mr. Smith and Mr. Kogod were in control of both Charles E. Smith
Commercial Realty and the Charles E. Smith Residential Division of
Archstone-Smith. Mr. Smith and Mr. Kogod, who became members of the board of
trustees of Vornado Realty Trust on January 1, 2002, are also trustees and
shareholders of Archstone-Smith Trust.
OUR ORGANIZATIONAL AND FINANCIAL STRUCTURE GIVES RISE TO OPERATIONAL AND
FINANCIAL RISKS.
EACH OF VORNADO REALTY TRUST AND VORNADO REALTY L.P. DEPENDS ON ITS DIRECT AND
INDIRECT SUBSIDIARIES' DIVIDENDS AND DISTRIBUTIONS, AND THESE SUBSIDIARIES'
CREDITORS AND PREFERRED SECURITY HOLDERS ARE ENTITLED TO PAYMENT OF AMOUNTS
PAYABLE TO THEM BY THE SUBSIDIARIES BEFORE THE SUBSIDIARIES MAY PAY ANY
DIVIDENDS OR DISTRIBUTIONS TO VORNADO REALTY TRUST AND VORNADO REALTY L.P.
Substantially all of Vornado Realty Trust's assets consist of partnership
interests in Vornado Realty L.P. Vornado Realty L.P. holds substantially all of
its properties and assets through subsidiaries. Vornado Realty L.P. therefore
depends for substantially all of its cash flow on cash distributions to it by
its subsidiaries and Vornado Realty Trust in turn depends for substantially all
of its cash flow on cash distributions to it by Vornado Realty L.P. The
creditors of each of our direct and indirect subsidiaries are entitled to
payment of that subsidiary's obligations to them, when due and payable, before
that subsidiary may make distributions to Vornado Realty L.P. Thus, Vornado
Realty L.P.'s ability to make distributions to its security holders, including
Vornado Realty Trust and other unit holders of Vornado Realty L.P. and holders
of any debt securities of Vornado Realty L.P., depends on its subsidiaries'
ability first to satisfy their obligations to their creditors and then to make
distributions to Vornado Realty L.P. Likewise, Vornado Realty Trust's ability to
pay dividends to holders of its common and preferred shares depends on Vornado
Realty L.P.'s ability first to satisfy its obligations to its creditors and make
distributions payable to holders of preferred units and then to make
distributions to Vornado Realty Trust.
12
Furthermore, the holders of preferred units of Vornado Realty L.P. are
entitled to receive preferred distributions before payment of distributions to
holders of common units of Vornado Realty L.P., including Vornado Realty Trust.
Thus, Vornado Realty Trust's ability to pay dividends to holders of its common
and preferred shares depends on Vornado Realty L.P.'s ability first to satisfy
its obligations to its creditors and make distributions payable to holders of
preferred units and then to make distributions to Vornado Realty Trust. There
are currently 17 series of preferred units of Vornado Realty L.P. not held by
Vornado Realty Trust that have preference over Vornado Realty Trust's common
shares. The total liquidation value of these 17 series of preferred units is
approximately $1,490,184,000.
In addition, Vornado Realty L.P. may participate in any distribution of the
assets of any of Vornado Realty L.P.'s direct or indirect subsidiaries upon the
liquidation, reorganization or insolvency of the subsidiary, and consequently
Vornado Realty L.P. security holders may participate in those assets, only after
the claims of the creditors, including trade creditors, and preferred security
holders, if any, of the subsidiary are satisfied.
Vornado Realty L.P.'s debt securities are obligations of Vornado Realty
L.P. only, and its subsidiaries are not obligated to pay any amounts due under
the debt securities or to make funds available for those payments in the form of
dividends or advances to Vornado Realty L.P. See "-- We have indebtedness, and
this indebtedness may increase" below for more information about indebtedness of
Vornado Realty L.P.
WE HAVE INDEBTEDNESS, AND THIS INDEBTEDNESS MAY INCREASE.
As of June 30, 2003, Vornado Realty L.P. and its wholly-owned subsidiaries
had approximately $4.94 billion in total debt outstanding. Our ratio of total
debt to total enterprise value was 41%. When we say "enterprise value" in the
preceding sentence, we mean market equity value of Vornado Realty Trust plus
debt less cash. In the future, we may incur additional debt, and thus increase
our ratio of total debt to total enterprise value, to finance acquisitions or
property developments. We may review and modify our debt level from time to time
without notice to or any vote of our security holders. Unless otherwise
described in any prospectus supplement relating to debt securities of Vornado
Realty L.P., the indentures and debt securities do not limit our ability to
incur additional debt.
Except as described in this prospectus under the heading "Description of
Debt Securities of Vornado Realty L.P. -- Mergers and Similar Transactions" or
in any applicable prospectus supplement, the indentures do not contain
provisions that would afford you protection in the event of:
- a highly leveraged or similar transaction involving Vornado Realty L.P.
or any of its affiliates;
- a change of control of Vornado Realty L.P.; or
- a reorganization, restructuring, merger or similar transaction involving
Vornado Realty L.P. or Vornado Realty Trust that may adversely affect
you.
LOSS OF OUR KEY PERSONNEL COULD HARM OUR OPERATIONS.
We are dependent on the efforts of Steven Roth, the Chairman of the Board
of Trustees and Chief Executive Officer of Vornado Realty Trust, and Michael D.
Fascitelli, the President of Vornado Realty Trust. While we believe that we
could find replacements for these key personnel, the loss of their services
could harm our operations.
VORNADO REALTY TRUST MIGHT FAIL TO QUALIFY OR REMAIN QUALIFIED AS A REIT.
Although we believe that Vornado Realty Trust will remain organized and
will continue to operate so as to qualify as a REIT for federal income tax
purposes, Vornado Realty Trust might fail to remain qualified in this way.
Qualification as a REIT for federal income tax purposes is governed by highly
technical and complex provisions of the Internal Revenue Code for which there
are only limited judicial or administrative interpretations. Vornado's
qualification as a REIT also depends on various facts and circumstances that are
not entirely within our control. In addition, legislation, new regulations,
administrative interpretations or court
13
decisions might significantly change the tax laws with respect to the
requirements for qualification as a REIT or the federal income tax consequences
of qualification as a REIT.
If, with respect to any taxable year, Vornado fails to maintain its
qualification as a REIT, it could not deduct distributions to shareholders in
computing its taxable income and would have to pay federal income tax on its
taxable income at regular corporate rates. The federal income tax payable would
include any applicable alternative minimum tax. If Vornado had to pay federal
income tax, the amount of money available to distribute to security holders
would be reduced for the year or years involved, and Vornado would no longer be
required to distribute money to shareholders. In addition, Vornado would also be
disqualified from treatment as a REIT for the four taxable years following the
year during which qualification was lost, unless Vornado was entitled to relief
under the relevant statutory provisions. Although Vornado currently intends to
operate in a manner designed to allow it to qualify as a REIT, future economic,
market, legal, tax or other considerations may cause it to revoke the REIT
election or fail to qualify as a REIT.
VORNADO'S CHARTER DOCUMENTS AND APPLICABLE LAW MAY HINDER ANY ATTEMPT TO
ACQUIRE VORNADO.
Generally, for Vornado Realty Trust to maintain its qualification as a REIT
under the Internal Revenue Code, not more than 50% in value of Vornado Realty
Trust's outstanding shares of beneficial interest may be owned, directly or
indirectly, by five or fewer individuals at any time during the last half of
Vornado Realty Trust's taxable year. The Internal Revenue Code defines
"individuals" for purposes of the requirement described in the preceding
sentence to include some types of entities. Under Vornado Realty Trust's Amended
and Restated Declaration of Trust, as amended, no person may own more than 6.7%
of the outstanding common shares or 9.9% of the outstanding preferred shares,
with some exceptions for persons who held common shares in excess of the 6.7%
limit before Vornado Realty Trust adopted the limit and other persons approved
by Vornado Realty Trust's Board of Trustees. These restrictions on
transferability and ownership may delay, deter or prevent a change in control of
Vornado Realty Trust or other transaction that might involve a premium price or
otherwise be in the best interest of the shareholders. We refer to Vornado
Realty Trust's Amended and Restated Declaration of Trust, as amended, as the
"declaration of trust."
Vornado Realty Trust's Board of Trustees is divided into three classes of
trustees. Trustees of each class are chosen for three-year staggered terms.
Staggered terms of trustees may reduce the possibility of a tender offer or an
attempt to change control of Vornado Realty Trust, even though a tender offer or
change in control might be in the best interest of our shareholders.
Vornado Realty Trust's declaration of trust authorizes the Board of
Trustees:
- to cause Vornado Realty Trust to issue additional authorized but unissued
common shares or preferred shares;
- to classify or reclassify, in one or more series, any unissued preferred
shares;
- to set the preferences, rights and other terms of any classified or
reclassified shares that Vornado Realty Trust issues; and
- to increase, without shareholder approval, the number of shares of
beneficial interest that Vornado may issue.
The Board of Trustees could establish a series of preferred shares whose
terms could delay, deter or prevent a change in control of Vornado Realty Trust
or other transaction that might involve a premium price or otherwise be in the
best interest of our shareholders, although the Board of Trustees does not now
intend to establish a series of preferred shares of this kind. Vornado Realty
Trust's declaration of trust and bylaws contain other provisions that may delay,
deter or prevent a change in control of Vornado Realty Trust or other
transaction that might involve a premium price or otherwise be in the best
interest of our shareholders.
Under the Maryland General Corporation Law, as amended, which we refer to
as the "MGCL," as applicable to real estate investment trusts, certain "business
combinations," including certain mergers, consolidations, share exchanges and
asset transfers and certain issuances and reclassifications of equity
securities, between a Maryland real estate investment trust and any person who
beneficially owns ten percent
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or more of the voting power of the trust's shares or an affiliate or an
associate, as defined in the MGCL, of the trust who, at any time within the
two-year period before the date in question, was the beneficial owner of ten
percent or more of the voting power of the then outstanding voting shares of
beneficial interest of the trust, which we refer to as an "interested
shareholder," or an affiliate of the interested shareholder are prohibited for
five years after the most recent date on which the interested shareholder
becomes an interested shareholder. After that five-year period, any business
combination of these kinds must be recommended by the board of trustees of the
trust and approved by the affirmative vote of at least (a) 80% of the votes
entitled to be cast by holders of outstanding shares of beneficial interest of
the trust and (b) two-thirds of the votes entitled to be cast by holders of
voting shares of the trust other than shares held by the interested shareholder
with whom, or with whose affiliate, the business combination is to be effected,
unless, among other conditions, the trust's common shareholders receive a
minimum price, as defined in the MGCL, for their shares and the consideration is
received in cash or in the same form as previously paid by the interested
shareholder for its common shares. The provisions of the MGCL do not apply,
however, to business combinations that are approved or exempted by the board of
trustees of the trust before the interested shareholder becomes an interested
shareholder, and a person is not an interested shareholder if the board of
trustees approved in advance the transaction by which the person otherwise would
have become an interested shareholder. In approving a transaction, the board may
provide that its approval is subject to compliance, at or after the time of
approval, with any terms and conditions determined by the board. The Vornado
board has adopted a resolution exempting any business combination between any
trustee or officer of Vornado Realty Trust, or their affiliates, and Vornado
Realty Trust. As a result, the trustees and officers of Vornado Realty Trust and
their affiliates may be able to enter into business combinations with Vornado
Realty Trust which may not be in the best interest of shareholders. With respect
to business combinations with other persons, the business combination provisions
of the MGCL may have the effect of delaying, deferring or preventing a change in
control of Vornado Realty Trust or other transaction that might involve a
premium price or otherwise be in the best interest of the shareholders. The
business combination statute may discourage others from trying to acquire
control of Vornado Realty Trust and increase the difficulty of consummating any
offer.
THE NUMBER OF SHARES OF VORNADO REALTY TRUST AND THE MARKET FOR THOSE SHARES
GIVE RISE TO VARIOUS RISKS.
VORNADO REALTY TRUST HAS MANY SHARES AVAILABLE FOR FUTURE SALE, WHICH COULD
HURT THE MARKET PRICE OF THE SHARES.
As of July 31, 2003, 27,373,831 of Vornado Realty Trust's common shares
were reserved for issuance upon redemption of Vornado Realty L.P. units. Some of
these shares may be sold in the public market after registration under the
Securities Act under registration rights agreements between Vornado Realty Trust
and some holders of units of Vornado Realty L.P. These shares may also be sold
in the public market under Rule 144 under the Securities Act or other available
exemptions from registration. In addition, Vornado Realty Trust has reserved a
number of common shares for issuance under our employee benefit plans, and these
common shares will be available for sale from time to time. We have awarded
shares of restrictive stock and granted options to purchase additional common
shares to some of our executive officers and employees. We cannot predict the
effect that future sales of Vornado Realty Trust's common shares, or the
perception that sales of common shares could occur, will have on the market
prices of the common shares.
CHANGES IN MARKET CONDITIONS COULD HURT THE MARKET PRICE OF VORNADO REALTY
TRUST'S SHARES.
The value of our shares depends on various market conditions, which may
change from time to time. Among the market conditions that may affect the value
of our shares are the following:
- the extent of institutional investor interest in Vornado Realty Trust;
- the reputation of REITs generally and the attractiveness of their equity
securities in comparison to other equity securities, including securities
issued by other real estate companies, and fixed income securities
(including in connection with any possible change in the taxation of
dividends, as discussed below);
15
- our financial condition and performance;
- prevailing interest rates; and
- general financial market conditions.
In particular, the Jobs and Growth Tax Relief and Reconciliation Act of
2003 which was signed into law by President Bush on May 28, 2003 provides
favorable income tax rates for certain corporate dividends received by
individuals through December 31, 2008. Under the Act, REIT dividends are not
eligible for the preferential rates applicable to dividends unless the dividends
are attributable to income that has been subject to corporate-level tax. As a
result, substantially all of the distributions paid on our shares are not
expected to qualify for such lower rates. This Act could cause stock in non-REIT
corporations to be more attractive to investors than stock in REITs, which may
negatively affect the value of and the market for our shares.
In addition, the stock market in recent years has experienced extreme price
and volume fluctuations that have often been unrelated or disproportionate to
the operating performance of companies.
INCREASED MARKET INTEREST RATES MAY HURT THE VALUE OF OUR SHARES.
We believe that investors consider the distribution rate on REIT shares,
expressed as a percentage of the price of the shares, relative to market
interest rates as an important factor in deciding whether to buy or sell the
shares. If market interest rates go up, prospective purchasers of REIT shares
may expect a higher distribution rate. Higher interest rates would not, however,
result in more funds for us to distribute and, in fact, would likely increase
our borrowing costs and might decrease our funds available for distribution.
Thus, higher market interest rates could cause the market price of our shares to
decline.
VORNADO REALTY TRUST AND VORNADO REALTY L.P.
Vornado Realty Trust is a fully-integrated real estate investment trust
organized under the laws of Maryland. Vornado Realty Trust conducts its business
through, and substantially all of its interests in properties are held by,
Vornado Realty L.P. Vornado Realty Trust is the sole general partner of, and
owned approximately 81% of the common limited partnership interest in, Vornado
Realty L.P. as of June 30, 2003.
Vornado Realty Trust, through Vornado Realty L.P., currently owns directly
or indirectly:
- Office Properties:
- all or portions of 76 office properties in the New York City
metropolitan area (primarily Manhattan) and in the Washington, D.C. and
Northern Virginia area aggregating approximately 27.7 million square
feet;
- Retail Properties:
- 62 retail center properties in six states and Puerto Rico aggregating
approximately 12.5 million square feet, including 1.8 million square
feet built by tenants on land leased from Vornado;
- Merchandise Mart Properties:
- the Merchandise Mart Properties portfolio containing approximately 8.6
million square feet, including the 3.4 million square foot Merchandise
Mart in Chicago;
- Temperature Controlled Logistics:
- a 60% interest in the Vornado Crescent Portland Partnership that owns 88
cold storage warehouses nationwide with an aggregate of approximately
441.5 million cubic feet of refrigerated space leased to AmeriCold
Logistics;
- Other Real Estate Investments:
- 33.1% of the outstanding common stock of Alexander's, Inc.;
16
- the Hotel Pennsylvania in New York City consisting of a hotel portion
containing 1,000,000 square feet with 1,700 rooms and a commercial
portion containing 400,000 square feet of retail and office space;
- a 22.6% interest in The Newkirk Master Limited Partnership, which owns
office, retail and industrial properties and various debt interests in
those properties;
- eight dry warehouse/industrial properties in New Jersey containing
approximately 2.0 million square feet; and
- other investments including interests in other real estate, marketable
securities and loans and rates receivable.
Our principal executive offices are located at 888 Seventh Avenue, New
York, New York 10019, and our telephone number is (212) 894-7000.
RATIOS OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERENCE DIVIDENDS
Vornado Realty Trust's consolidated ratio of earnings to combined fixed
charges and preference dividends for each of the fiscal years ended December 31,
1998, 1999, 2000, 2001 and 2002 and the three-month period ended June 30, 2003
are as follows:
YEAR ENDED DECEMBER 31,
-------------------------------- THREE MONTHS ENDED
1998 1999 2000 2001 2002 JUNE 30, 2003
---- ---- ---- ---- ---- ------------------
Ratio of earnings to combined fixed
charges and preference dividends
(unaudited)............................. 1.88 1.73 1.62 1.68 1.68 2.03
For purposes of calculating these ratios, (a) earnings represent income
from continuing operations before income taxes, plus fixed charges, and (b)
fixed charges represent interest expense on all indebtedness, including
amortization of deferred debt issuance costs, and the portion of operating lease
rental expense that management considers representative of the interest factor,
which is one-third of operating lease rentals.
USE OF PROCEEDS
Vornado Realty Trust is required by the terms of the partnership agreement
of Vornado Realty L.P. to contribute the net proceeds of any sale of common
shares, preferred shares or depositary shares to Vornado Realty L.P. in exchange
for additional units or preferred units, as the case may be. As will be more
fully described in the applicable prospectus supplement, Vornado Realty Trust
and Vornado Realty L.P. intend to use the net proceeds from the sale of
securities for general trust or partnership purposes or other uses. These other
uses may include, among others, the funding of an acquisition or the repayment
of indebtedness.
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DESCRIPTION OF DEBT SECURITIES OF VORNADO REALTY L.P.
Please note that in this section entitled "Description of Debt Securities
of Vornado Realty L.P.," references to Vornado Realty L.P., "we", "our" and "us'
refer only to Vornado Realty L.P. and not to its subsidiaries or Vornado Realty
Trust unless the context requires otherwise. Also, in this section, references
to "holders" mean those who own debt securities registered in their own names,
on the books that we or the trustee maintain for this purpose, and not those who
own beneficial interests in debt securities registered in street name or in debt
securities issued in book-entry form through one or more depositaries. Owners of
beneficial interests in the debt securities should read the section below
entitled "Legal Ownership and Book-Entry Issuance."
DEBT SECURITIES MAY BE SENIOR OR SUBORDINATED
We may issue senior or subordinated debt securities. Neither the senior
debt securities nor the subordinated debt securities will be secured by any
property or assets of Vornado Realty Trust or any of its subsidiaries, including
Vornado Realty L.P. Thus, by owning a debt security, you are an unsecured
creditor of Vornado Realty L.P.
Neither any limited or general partner of Vornado Realty L.P., including
Vornado Realty Trust, nor any principal, shareholder, officer, director, trustee
or employee of any limited or general partner of Vornado Realty L.P. or of any
successor of any limited or general partner of Vornado Realty L.P. has any
obligation for payment of debt securities or for any of Vornado Realty L.P.'s
obligations, covenants or agreements contained in the debt securities or the
applicable indenture. By accepting the debt securities, you waive and release
all liability of this kind. The waiver and release are part of the consideration
for the issuance of debt securities.
The senior debt securities will be issued under our senior debt indenture
described below and will rank equally with all of our other unsecured and
unsubordinated debt.
The subordinated debt securities will be issued under our subordinated debt
indenture described below and will be subordinate in right of payment to all of
our "senior indebtedness," as defined in the subordinated debt indenture. The
prospectus supplement for any series of subordinated debt securities or the
information incorporated in this prospectus by reference will indicate the
approximate amount of senior indebtedness outstanding as of the end of our most
recent fiscal quarter. As of July 31, 2003, $542,892,333 or 100% of Vornado
Realty L.P.'s total indebtedness constituted senior indebtedness. Neither
indenture limits Vornado Realty L.P.'s ability to incur additional senior
indebtedness, unless otherwise described in the prospectus supplement relating
to any series of debt securities. Vornado Realty L.P.'s senior indebtedness is,
and any additional senior indebtedness will be, structurally subordinate to the
indebtedness of Vornado Realty L.P.'s subsidiaries. See -- Vornado Realty L.P.'s
Debt Securities Are Structurally Subordinated to Indebtedness of Vornado Realty
L.P.'s Subsidiaries below.
When we refer to "debt securities" in this prospectus, we mean both the
senior debt securities and the subordinated debt securities.
THE SENIOR DEBT INDENTURE AND THE SUBORDINATED DEBT INDENTURE
The senior debt securities and the subordinated debt securities are each
governed by a document called an indenture -- the senior debt indenture, in the
case of the senior debt securities, and the subordinated debt indenture, in the
case of the subordinated debt securities. Each indenture is a contract between
Vornado Realty L.P. and The Bank of New York, which will initially act as
trustee. The indentures are substantially identical, except for the provisions
relating to subordination, which are included only in the subordinated debt
indenture.
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The trustee under each indenture has two main roles:
- First, the trustee can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee acts on
your behalf, which we describe later under "-- Default, Remedies and
Waiver of Default."
- Second, the trustee performs administrative duties for us, such as
sending interest payments and notices.
See "-- Our Relationship with the Trustee" below for more information about
the trustee.
When we refer to the indenture or the trustee with respect to any debt
securities, we mean the indenture under which those debt securities are issued
and the trustee under that indenture.
WE MAY ISSUE MANY SERIES OF DEBT SECURITIES
We may issue as many distinct series of debt securities under either debt
indenture as we wish. This section of the prospectus summarizes terms of the
securities that apply generally to all series. The provisions of each indenture
allow us not only to issue debt securities with terms different from those of
debt securities previously issued under that indenture, but also to "reopen" a
previous issue of a series of debt securities and issue additional debt
securities of that series. We will describe most of the financial and other
specific terms of a series, whether it be a series of the senior debt securities
or subordinated debt securities, in the prospectus supplement accompanying this
prospectus. Those terms may vary from the terms described here.
As you read this section of the prospectus, please remember that the
specific terms of your debt security will be described in the accompanying
prospectus supplement and, if applicable, modify or replace the general terms
described in this section. If there are any differences between your prospectus
supplement and this prospectus, your prospectus supplement will control. Thus,
the statements we make in this section may not apply to your debt security.
When we refer to a series of debt securities, we mean a series issued under
the applicable indenture. When we refer to your prospectus supplement, we mean
the prospectus supplement describing the specific terms of the debt security you
purchase. The terms used in your prospectus supplement have the meanings
described in this prospectus, unless otherwise specified.
AMOUNTS THAT WE MAY ISSUE
Neither indenture limits the aggregate amount of debt securities that we
may issue or the number of series or the aggregate amount of any particular
series. We may issue debt securities and other securities in amounts that exceed
the total amount specified on the cover of this prospectus up to the aggregate
amount authorized by Vornado Realty L.P. for each series, at any time without
your consent and without notifying you.
The indentures and the debt securities do not limit our ability to incur
other indebtedness or to issue other securities, unless otherwise described in
the prospectus supplement relating to any series of debt securities. Also, we
are not subject to financial or similar restrictions by the terms of the debt
securities, unless otherwise described in the prospectus supplement relating to
any series of debt securities.
PRINCIPAL AMOUNT, STATED MATURITY AND MATURITY
The principal amount of a debt security means the principal amount payable
at its stated maturity, unless that amount is not determinable, in which case
the principal amount of a debt security is its face amount. Any debt securities
owned by us or any of our affiliates are not deemed to be outstanding for
certain determinations under the indenture.
19
The term "stated maturity" with respect to any debt security means the day
on which the principal amount of the debt security is scheduled to become due.
The principal may become due sooner, by reason of redemption or acceleration
after a default or otherwise in accordance with the terms of the debt security.
The day on which the principal actually becomes due, whether at the stated
maturity or earlier, is called the "maturity" of the principal.
We also use the terms "stated maturity" and "maturity" to refer to the days
when other payments become due. For example, we refer to a regular interest
payment date when an installment of interest is scheduled to become due as the
"stated maturity" of that installment.
When we refer to the "stated maturity" or the "maturity" of a debt security
without specifying a particular payment, we mean the stated maturity or
maturity, as the case may be, of the principal.
VORNADO REALTY L.P.'S DEBT SECURITIES ARE STRUCTURALLY SUBORDINATED TO
INDEBTEDNESS OF VORNADO REALTY L.P.'S SUBSIDIARIES
Because our assets consist principally of interests in the subsidiaries
through which we own our properties and conduct our businesses, our right to
participate as an equity holder in any distribution of assets of any of our
subsidiaries upon the subsidiary's liquidation or otherwise, and thus the
ability of our security holders to benefit from the distribution, is junior to
creditors of the subsidiary, except to the extent that any claims we may have as
a creditor of the subsidiary are recognized. Furthermore, because some of our
subsidiaries are partnerships in which we are a general partner, we may be
liable for their obligations. We may also guarantee some obligations of our
subsidiaries. Any liability we may have for our subsidiaries' obligations could
reduce our assets that are available to satisfy our direct creditors, including
investors in our debt securities.
THIS SECTION IS ONLY A SUMMARY
The indentures and their associated documents, including your debt
security, contain the full legal text of the matters described in this section
and your prospectus supplement. We have filed forms of the indentures with the
SEC as exhibits to our registration statements. See "Available Information"
above for information on how to obtain copies of them.
This section and your prospectus supplement summarize all the material
terms of the indentures and your debt security. They do not, however, describe
every aspect of the indentures and your debt security. For example, in this
section and your prospectus supplement, we use terms that have been given
special meaning in the indentures, but we describe the meaning for only the more
important of those terms.
GOVERNING LAW
The indentures and the debt securities will be governed by New York law.
CURRENCY OF DEBT SECURITIES
Amounts that become due and payable on a debt security in cash will be
payable in a currency, currencies or currency units specified in the
accompanying prospectus supplement. We refer to this currency, currencies or
currency units as a "specified currency." The specified currency for a debt
security will be U.S. dollars, unless your prospectus supplement states
otherwise. Some debt securities may have different specified currencies for
principal and interest. You will have to pay for your debt securities by
delivering the requisite amount of the specified currency for the principal to
us or the underwriters, agents or dealers that we name in your prospectus
supplement, unless other arrangements have been made between you and us or you
and that firm. We will make payments on a debt security in the specified
currency, except as described below in "-- Payment Mechanics for Debt
Securities."
FORM OF DEBT SECURITIES
We will issue each debt security in global -- i.e., book-entry -- form
only, unless we specify otherwise in the applicable prospectus supplement. Debt
securities in book-entry form will be represented by a global
20
security registered in the name of a depositary, which will be the holder of all
the debt securities represented by that global security. Those who own
beneficial interests in a global debt security will do so through participants
in the depositary's securities clearance system, and the rights of these
indirect owners will be governed solely by the applicable procedures of the
depositary and its participants. We describe book-entry securities below under
"Legal Ownership and Book-Entry Issuance."
In addition, we will issue each debt security in fully registered form,
without coupons.
TYPES OF DEBT SECURITIES
We may issue any of the following types of senior debt securities or
subordinated debt securities:
FIXED RATE DEBT SECURITIES
A debt security of this type will bear interest at a fixed rate described
in your prospectus supplement. This type includes zero coupon debt securities,
which bear no interest and are instead issued at a price usually significantly
lower than the principal amount. See "-- Original Issue Discount Debt
Securities" below for more information about zero coupon and other original
issue discount debt securities.
Each fixed rate debt security, except any zero coupon debt security, will
bear interest from its original issue date or from the most recent date to which
interest on the debt security has been paid or made available for payment.
Interest will accrue on the principal of a fixed rate debt security at the fixed
yearly rate stated in the applicable prospectus supplement, until the principal
is paid or made available for payment or the debt security is exchanged. Each
payment of interest due on an interest payment date or the date of maturity will
include interest accrued from and including the last date to which interest has
been paid, or made available for payment, or from the issue date if none has
been paid or made available for payment, to but excluding the interest payment
date or the date of maturity. We will compute interest on fixed rate debt
securities on the basis of a 360-day year of twelve 30-day months. We will pay
interest on each interest payment date and at maturity as described below under
"-- Payment Mechanics for Debt Securities."
FLOATING RATE DEBT SECURITIES
A debt security of this type will bear interest at rates that are
determined by reference to an interest rate formula. In some cases, the rates
may also be adjusted by adding or subtracting a spread or multiplying by a
spread multiplier and may be subject to a minimum rate or a maximum rate. If a
debt security is a floating rate debt security, the formula and any adjustments
that apply to the interest rate will be specified in the applicable prospectus
supplement.
Each floating rate debt security will bear interest from its original issue
date or from the most recent date to which interest on the debt security has
been paid or made available for payment. Interest will accrue on the principal
of a floating rate debt security at the yearly rate determined according to the
interest rate formula stated in the applicable prospectus supplement, until the
principal is paid or made available for payment or the security is exchanged. We
will pay interest on each interest payment date and at maturity as described
below under "-- Payment Mechanics for Debt Securities."
Calculation of Interest. Calculations relating to floating rate debt
securities will be made by the calculation agent, an institution that we appoint
as our agent for this purpose. The prospectus supplement for a particular
floating rate debt security will name the institution that we have appointed to
act as the calculation agent for that debt security as of its original issue
date. We may appoint a different institution to serve as calculation agent from
time to time after the original issue date of the debt security without your
consent and without notifying you of the change.
For each floating rate debt security, the calculation agent will determine,
on the corresponding interest calculation or determination date, as described in
the applicable prospectus supplement, the interest rate that takes effect on
each interest reset date. In addition, the calculation agent will calculate the
amount of interest that has accrued during each interest period -- i.e., the
period from and including the original issue date, or the last date to which
interest has been paid or made available for payment, to but excluding the
payment
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date. For each interest period, the calculation agent will calculate the amount
of accrued interest by multiplying the face or other specified amount of the
floating rate debt security by an accrued interest factor for the interest
period. This factor will equal the sum of the interest factors calculated for
each day during the interest period. The interest factor for each day will be
expressed as a decimal and will be calculated by dividing the interest rate,
also expressed as a decimal, applicable to that day by 360 or by the actual
number of days in the year, as specified in the applicable prospectus
supplement.
Upon the request of the holder of any floating rate debt security, the
calculation agent will provide for that debt security the interest rate then in
effect -- and, if determined, the interest rate that will become effective on
the next interest reset date. The calculation agent's determination of any
interest rate, and its calculation of the amount of interest for any interest
period, will be final and binding in the absence of manifest error.
All percentages resulting from any calculation relating to a debt security
will be rounded upward or downward, as appropriate, to the next higher or lower
one hundred-thousandth of a percentage point, e.g., 9.876541% (or .09876541)
being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being
rounded up to 9.87655% (or .0987655). All amounts used in or resulting from any
calculation relating to a floating rate debt security will be rounded upward or
downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or
to the nearest corresponding hundredth of a unit, in the case of a currency
other than U.S. dollars, with one-half cent or one-half of a corresponding
hundredth of a unit or more being rounded upward.
In determining the base rate that applies to a floating rate debt security
during a particular interest period, the calculation agent may obtain rate
quotes from various banks or dealers active in the relevant market, as described
in the applicable prospectus supplement. Those reference banks and dealers may
include the calculation agent itself and its affiliates, as well as any
underwriter, dealer or agent participating in the distribution of the relevant
floating rate debt securities and its affiliates.
INDEXED DEBT SECURITIES
A debt security of this type provides that the principal amount payable at
its maturity, and the amount of interest payable on an interest payment date,
will be determined by reference to:
- securities of one or more issuers;
- one or more currencies;
- one or more commodities;
- any other financial, economic or other measure or instrument, including
the occurrence or non-occurrence of any event or circumstance; or
- one or more indices or baskets of the items described above.
If you are a holder of an indexed debt security, you may receive an amount
at maturity that is greater than or less than the face amount of your debt
security depending upon the value of the applicable index at maturity. The value
of the applicable index will fluctuate over time.
If you purchase an indexed debt security, your prospectus supplement will
include information about the relevant index and about how amounts that are to
become payable will be determined by reference to the price or value of that
index. The prospectus supplement will also identify the calculation agent that
will calculate the amounts payable with respect to the indexed debt security and
may exercise significant discretion in doing so.
ORIGINAL ISSUE DISCOUNT DEBT SECURITIES
A fixed rate debt security, a floating rate debt security or an indexed
debt security may be an original issue discount debt security. A debt security
of this type is issued at a price lower than its principal amount and provides
that, upon redemption or acceleration of its maturity, an amount less than its
principal amount will be payable. An original issue discount debt security may
be a zero coupon debt security. A debt security issued at
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a discount to its principal may, for U.S. federal income tax purposes, be
considered an original issue discount debt security, regardless of the amount
payable upon redemption or acceleration of maturity. The U.S. federal income tax
consequences of owning an original issue discount debt security may be described
in the applicable prospectus supplement.
INFORMATION IN THE PROSPECTUS SUPPLEMENT
A prospectus supplement will describe the specific terms of a particular
series of debt securities, which will include some or all of the following:
- the title of the debt securities;
- whether they are senior debt securities or subordinated debt securities;
- any limit on the aggregate principal amount of the debt securities of the
same series;
- the person to whom any interest on any debt security of the series will
be payable, if other than the person in whose name the debt security is
registered at the close of business on the regular record date;
- the stated maturity;
- the specified currency, currencies or currency units for principal and
interest, if not U.S. dollars;
- the price at which we originally issue the debt securities, expressed as
a percentage of the principal amount, and the original issue date;
- whether the debt securities are fixed rate debt securities, floating rate
debt securities or indexed debt securities;
- if the debt securities are fixed rate debt securities, the yearly rate at
which the debt securities will bear interest, if any, and the interest
payment dates;
- the regular record date for any interest payable on any interest payment
date;
- the place or places where the principal of, premium, if any, and interest
on the debt securities will be payable;
- the denominations in which the debt securities will be issuable, if other
than denominations of $1,000 and any integral multiple of $1,000;
- if the debt securities are floating rate debt securities, the interest
rate basis; any applicable index currency or maturity, spread or spread
multiplier or initial, maximum or minimum rate; the interest reset,
determination, calculation and payment dates; the day count used to
calculate interest payments for any period; and the calculation agent;
- any index or formula used to determine the amount of payments of
principal of and any premium and interest on the debt securities;
- if the debt securities may be exchanged for common or preferred shares of
Vornado Realty Trust, the terms on which exchange may occur, including
whether exchange is mandatory, at the option of the holder or at our
option, the period during which exchange may occur, the initial exchange
rate and the circumstances or manner in which the amount of common or
preferred shares issuable upon exchange may be adjusted or calculated
according to the market price of Vornado Realty Trust common or preferred
shares;
- if the debt securities are also original issue discount debt securities,
the yield to maturity;
- if other than the principal amount, the portion of the principal amount
of the debt securities of the series which will be payable upon
acceleration of the maturity of the debt securities;
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- if applicable, the circumstances under which the debt securities may be
mandatorily redeemed by us, redeemed at our option or repaid at the
holder's option before the stated maturity, including any redemption
commencement date, repayment date(s), redemption price(s) and redemption
period(s);
- if the principal amount of the debt securities which will be payable at
the maturity of the debt securities will not be determinable as of any
date before maturity, the amount which will be deemed to be the
outstanding principal amount of the debt securities;
- the applicability of any provisions described under "-- Defeasance and
Covenant Defeasance";
- the depositary for the debt securities, if other than DTC, and any
circumstances under which the holder may request securities in non-global
form;
- the applicability of any provisions described under "-- Default, Remedies
and Waiver of Default";
- any additional covenants applicable to the debt securities and any
elimination of or modification to the covenants described under
"-- Covenants";
- the names and duties of any co-trustees, depositaries, authenticating
agents, paying agents, transfer agents or registrars for the debt
securities;
- the U.S. federal income tax consequences to holders of fixed rate debt
securities that are zero coupon or original issue discount debt
securities, floating rate debt securities, indexed debt securities or
original discount debt securities; and
- any other terms of the debt securities, which could be different from
those described in this prospectus.
REDEMPTION AND REPAYMENT
Unless otherwise indicated in the applicable prospectus supplement, a debt
security will not be entitled to the benefit of any sinking fund -- that is, we
will not deposit money on a regular basis into any separate custodial account to
repay the debt securities. In addition, we will not be entitled to redeem a debt
security before its stated maturity unless the prospectus supplement specifies a
redemption commencement date. You will not be entitled to require us to buy a
debt security from you before its stated maturity unless your prospectus
supplement specifies one or more repayment dates.
If your applicable prospectus supplement specifies a redemption
commencement date or a repayment date, it will also specify one or more
redemption prices or repayment prices, which may be expressed as a percentage of
the principal amount of the debt security. It may also specify one or more
redemption periods during which the redemption prices relating to a redemption
of debt securities during those periods will apply.
If we redeem less than all the debt securities of any series, we will, at
least 60 days before the redemption date set by us or any shorter period that is
satisfactory to the trustee, notify the trustee of the redemption date, of the
principal amount of debt securities to be redeemed and if applicable, of the
tenor of the debt securities to be redeemed. The trustee will select from the
outstanding securities of the series the particular debt securities to be
redeemed not more than 60 days before the redemption date. This procedure will
not apply to any redemption of a single debt security.
If your prospectus supplement specifies a redemption commencement date, the
debt security will be redeemable at our option at any time on or after that date
or at a specified time or times. If we redeem the debt security, we will do so
at the specified redemption price, together with interest accrued to the
redemption date. If different prices are specified for different redemption
periods, the price we pay will be the price that applies to the redemption
period during which the debt security is redeemed.
If your prospectus supplement specifies a repayment date, the debt security
will be repayable at the holder's option on the specified repayment date at the
specified repayment price, together with interest accrued to the repayment date.
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If we exercise an option to redeem any debt security, we will give to the
holder written notice of the principal amount of the debt security to be
redeemed, not less than 30 days nor more than 60 days before the applicable
redemption date. We will give the notice in the manner described below in
"-- Notices."
If a debt security represented by a global debt security is subject to
repayment at the holder's option, the depositary or its nominee, as the holder,
will be the only person that can exercise the right to repayment. Any indirect
owners who own beneficial interests in the global debt security and wish to
exercise a repayment right must give proper and timely instructions to their
banks or brokers through which they hold their interests, requesting that they
notify the depositary to exercise the repayment right on their behalf. Different
firms have different deadlines for accepting instructions from their customers,
and you should take care to act promptly enough to ensure that your request is
given effect by the depositary before the applicable deadline for exercise.
Street name and other indirect owners should contact their banks or brokers
for information about how to exercise a repayment right in a timely manner.
We or our affiliates may purchase debt securities from investors who are
willing to sell from time to time, either in the open market at prevailing
prices or in private transactions at negotiated prices. Debt securities that we
or they purchase may, at our discretion, be held, resold or canceled.
MERGERS AND SIMILAR TRANSACTIONS
We are generally permitted to merge or consolidate with another entity. We
are also permitted to sell our assets substantially as an entirety to another
entity. With regard to any series of debt securities, however, unless otherwise
indicated in the applicable prospectus supplement, we may not take any of these
actions unless all the following conditions are met:
- If the successor entity in the transaction is not Vornado Realty L.P.,
the successor entity must be a corporation, partnership or trust
organized under the laws of the United States, any state in the United
States or the District of Columbia and must expressly assume our
obligations under the debt securities of that series and the indenture
with respect to that series.
- Immediately after giving effect to the transaction, no default under the
debt securities of that series has occurred and is continuing. For this
purpose, "default under the debt securities of that series" means an
event of default with respect to that series or any event that would be
an event of default with respect to that series if the requirements for
giving us a default notice and for our default having to continue for a
specific period of time were disregarded. We describe these matters below
under "-- Default, Remedies and Waiver of Default."
- We or any successor entity, as the case may be, must take such steps as
will be necessary to secure the debt securities of that series equally
and ratably with or senior to all new indebtedness if, as a result of the
transaction, properties or assets of Vornado Realty L.P. would become
subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by the applicable indenture.
- We have delivered to the trustee an officers' certificate and opinion of
counsel, each stating that the transaction complies in all respects with
the indenture.
If the conditions described above are satisfied with respect to the debt
securities of any series, we will not need to obtain the approval of the holders
of those debt securities in order to merge or consolidate or to sell our assets.
Also, these conditions will apply only if we wish to merge or consolidate with
another entity or sell our assets substantially as an entirety to another
entity. We will not need to satisfy these conditions if we enter into other
types of transactions, including any transaction in which we acquire the stock
or assets of another entity, any transaction that involves a change of control
of Vornado Realty L.P. or Vornado Realty Trust but in which Vornado Realty L.P.
does not merge or consolidate and any transaction in which we sell less than
substantially all our assets.
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SUBORDINATION PROVISIONS
Holders of subordinated debt securities should recognize that contractual
provisions in the subordinated debt indenture may prohibit us from making
payments on those securities. Subordinated debt securities are subordinate and
junior in right of payment, to the extent and in the manner stated in the
subordinated debt indenture, to all of our senior debt, as defined in the
subordinated debt indenture, including all debt securities we have issued and
will issue under the senior debt indenture.
The subordinated debt indenture defines "senior debt" as the principal of
and premium, if any, and interest on all indebtedness of Vornado Realty L.P.,
other than the subordinated debt securities, whether outstanding on the date of
the indenture or thereafter created, incurred or assumed, which is (a) for money
borrowed, (b) evidenced by a note or similar instrument given in connection with
the acquisition of any businesses, properties or assets of any kind or (c)
obligations of Vornado Realty L.P. as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles or leases of property or assets made as part of any sale
and lease-back transaction to which Vornado Realty L.P. is a party. For the
purpose of this definition, "interest" includes interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to
Vornado Realty L.P. to the extent that the claim for post-petition interest is
allowed in the proceeding. Also for the purpose of this definition,
"indebtedness of Vornado Realty L.P." includes indebtedness of others guaranteed
by Vornado Realty L.P. and amendments, renewals, extensions, modifications and
refundings of any indebtedness or obligation of the kinds described in the first
sentence of this paragraph. However, "indebtedness of Vornado Realty L.P." for
the purpose of this definition does not include any indebtedness or obligation
if the instrument creating or evidencing the indebtedness or obligation, or
under which the indebtedness or obligation is outstanding, provides that the
indebtedness or obligation is not superior in right of payment to the
subordinated debt securities.
The subordinated debt indenture provides that, unless all principal of and
any premium or interest on the senior debt has been paid in full, no payment or
other distribution may be made in respect of any subordinated debt securities in
the following circumstances:
- in the event of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceeding
involving Vornado Realty L.P. or its assets;
- in the event of any liquidation, dissolution or other winding up of
Vornado Realty L.P., whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy;
- in the event of any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of Vornado Realty L.P.;
- if any subordinated debt securities of Vornado Realty L.P. have been
declared due and payable before their stated maturity; or
- (a) in the event and during the continuation of any default in the
payment of principal, premium or interest on any senior debt beyond any
applicable grace period or if any event of default with respect to any
senior debt of Vornado Realty L.P. has occurred and is continuing,
permitting the holders of that senior debt of Vornado Realty L.P. or a
trustee to accelerate the maturity of that senior debt, unless the event
of default has been cured or waived or ceased to exist and any related
acceleration has been rescinded, or (b) if any judicial proceeding is
pending with respect to a payment default or an event of default
described in (a).
If the trustee under the subordinated debt indenture or any holders of the
subordinated debt securities receive any payment or distribution that they know
is prohibited under the subordination provisions, then the trustee or the
holders will have to repay that money to the holders of the senior debt.
Even if the subordination provisions prevent us from making any payment
when due on the subordinated debt securities of any series, we will be in
default on our obligations under that series if we do not make the payment when
due. This means that the trustee under the subordinated debt indenture and the
holders of that series can take action against us, but they will not receive any
money until the claims of the holders of senior debt have been fully satisfied.
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COVENANTS
The following covenants apply to Vornado Realty L.P. with respect to the
debt securities of each series unless otherwise specified in the applicable
prospectus supplement.
Maintenance of Properties. We must maintain all properties used in our
business in good condition. However, we may discontinue the maintenance or
operation of any of our properties if in our judgment, discontinuance is
desirable in the conduct of our business and is not disadvantageous in any
material respect to the holders of debt securities.
Insurance. We must keep all of our insurable properties insured against
loss or damage with insurers of recognized responsibility. The insurance must be
in commercially reasonable amounts and types.
Existence. Except as described under "-- Mergers and Similar
Transactions," we must do or cause to be done all things necessary to preserve
and keep in full force and effect our existence, rights and franchises. However,
we are not required to preserve any right or franchise if we determine that the
preservation of the right or franchise is no longer desirable in the conduct of
our business and that the loss of the right or franchise is not disadvantageous
in any material respect to the holders of the debt securities.
Payment of Taxes and Other Claims. We are required to pay or discharge or
cause to be paid or discharged (a) all taxes, assessments and governmental
charges levied or imposed upon us or any subsidiary or upon our income, profits
or property or the income, profits or property of any subsidiary and (b) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon our property or the property of any subsidiary. We must pay
these taxes and other claims before they become delinquent. However, we are not
required to pay or discharge or cause to be paid or discharged any tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Additional covenants described in the applicable prospectus supplement may
apply to Vornado Realty L.P. with respect to a particular series of debt
securities.
DEFEASANCE AND COVENANT DEFEASANCE
The provisions for full defeasance and covenant defeasance described below
apply to each senior and subordinated debt security if so indicated in the
applicable prospectus supplement. In general, we expect these provisions to
apply to each debt security that has a specified currency of U.S. dollars and is
not a floating rate or indexed debt security.
Full Defeasance. If there is a change in U.S. federal tax law, as
described below, we can legally release ourselves from all payment and other
obligations on any debt securities. This is called full defeasance. For us to do
so, each of the following must occur:
- We must deposit in trust for the benefit of all holders of those debt
securities a combination of money and U.S. government or U.S. government
agency notes or bonds that will generate enough cash to make interest,
principal and any other payments on those debt securities on their
various due dates;
- (a) No event of default under the indenture may have occurred and be
continuing and (b) no event of default described in the sixth bullet
point under "-- Default, Remedies and Waiver of Default -- Events of
Default" may have occurred and be continuing at any time during the 90
days following the deposit in trust;
- There must be a change in current U.S. federal tax law or an Internal
Revenue Service ruling that lets us make the above deposit without
causing the holders to be taxed on those debt securities any differently
than if we did not make the deposit and just repaid those debt securities
ourselves. Under current federal tax law, the deposit and our legal
release from your debt security would be treated as though we took back
your debt security and gave you your share of the cash and notes or bonds
deposited in trust. In that event, you could recognize gain or loss on
your debt security; and
- We must deliver to the trustee a legal opinion of our counsel confirming
the tax law change described above.
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If we ever fully defeased your debt security, you would have to rely solely
on the trust deposit for payments on your debt security. You would not be able
to look to us for payment if there was any shortfall.
Covenant Defeasance. Under current U.S. federal tax law, we can make the
same type of deposit described above and be released from the restrictive
covenants relating to your debt security listed in the bullets below and any
additional restrictive covenants that may be described in your prospectus
supplement. This is called covenant defeasance. In that event, you would lose
the protection of those restrictive covenants. In order to achieve covenant
defeasance for any debt securities, we must take the same steps as are required
for defeasance.
If we accomplish covenant defeasance with regard to your debt security, the
following provisions of the applicable indenture and your debt security would no
longer apply:
- The requirement to secure the debt securities equally and ratably with
all new indebtedness in the event of a consolidation;
- The covenants regarding existence, maintenance of properties, payment of
taxes and other claims and insurance;
- Any additional covenants that your prospectus supplement states are
applicable to your debt security; and
- The events of default resulting from a breach of covenants, described
below in the fourth, fifth and seventh bullet points under "-- Default,
Remedies and Waiver of Default -- Events of Default."
If we accomplish covenant defeasance on your debt security, we must still
repay your debt security if there is any shortfall in the trust deposit. You
should note, however, that if one of the remaining events of default occurred,
such as our bankruptcy, and your debt security became immediately due and
payable, there may be a shortfall. Depending on the event causing the default,
you may not be able to obtain payment of the shortfall.
DEFAULT, REMEDIES AND WAIVER OF DEFAULT
You will have special rights if an event of default with respect to your
series of debt securities occurs and is continuing, as described in this
subsection.
Events of Default. Unless your prospectus supplement says otherwise, when
we refer to an event of default with respect to any series of debt securities,
we mean any of the following:
- We do not pay interest on any debt security of that series within 30 days
after the due date;
- We do not pay the principal or any premium of any debt security of that
series on the due date;
- We do not deposit a sinking fund payment with regard to any debt security
of that series on the due date, but only if the payment is required under
the applicable prospectus supplement;
- We remain in breach of any covenant we make in the indenture for the
benefit of the relevant series for 60 days after we receive a written
notice of default stating that we are in breach and requiring us to
remedy the breach. The notice must be sent by the trustee or the holders
of at least 10% in principal amount of the relevant series of debt
securities;
- We do not pay an indebtedness of $50,000,000 or more in principal amount
outstanding when due after the expiration of any applicable grace period,
or we default on an indebtedness of this amount resulting in acceleration
of the indebtedness, in either case within ten days after written notice
of the default is sent to us. The notice must be sent by the trustee or
the holders of at least 10% in principal amount of the relevant series of
debt securities;
- We file for bankruptcy or other events of bankruptcy, insolvency or
reorganization relating to Vornado Realty L.P. occur; or
28
- If your prospectus supplement states that any additional event of default
applies to the series, that event of default occurs.
REMEDIES IF AN EVENT OF DEFAULT OCCURS
If you are the holder of a subordinated debt security, all the remedies
available upon the occurrence of an event of default under the subordinated debt
indenture will be subject to the restrictions on the subordinated debt
securities described above under "-- Subordination Provisions."
If an event of default has occurred with respect to any series of debt
securities and has not been cured or waived, the trustee or the holders of not
less than 25% in principal amount of outstanding debt securities of that series
may declare the entire principal amount of the debt securities of that series to
be due immediately. If the event of default occurs because of events in
bankruptcy, insolvency or reorganization relating to Vornado Realty L.P., the
entire principal amount of the debt securities of that series will be
automatically accelerated, without any action by the trustee or any holder.
Each of the situations described above is called an acceleration of the
maturity of the affected series of debt securities. If the maturity of any
series is accelerated, a judgment for payment has not yet been obtained, we pay
or deposit with the trustee an amount sufficient to pay all amounts due on the
securities of the series, and all events of default with respect to the series,
other than the nonpayment of the accelerated principal, have been cured or
waived, then the holders of a majority in principal amount of the outstanding
debt securities of that series may cancel the acceleration for the entire
series.
If an event of default occurs, the trustee will have special duties. In
that situation, the trustee will be obligated to use those of its rights and
powers under the relevant indenture, and to use the same degree of care and
skill in doing so, that a prudent person would use in that situation in
conducting his or her own affairs.
Except as described in the prior paragraph, the trustee is not required to
take any action under the relevant indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and
liability. This is called an indemnity. If the trustee is provided with an
indemnity reasonably satisfactory to it, the holders of a majority in principal
amount of all debt securities of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the trustee with respect to that series. These majority
holders may also direct the trustee in performing any other action under the
applicable indenture with respect to the debt securities of that series.
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to any debt security, all of the following must occur:
- The holder of your debt security must give the trustee written notice of
a continuing event of default;
- The holders of not less than 25% in principal amount of all debt
securities of your series must make a written request that the trustee
take action because of the default, and they or other holders must offer
to the trustee indemnity reasonably satisfactory to the trustee against
the cost and other liabilities of taking that action;
- The trustee must not have taken action for 60 days after the above steps
have been taken; and
- During those 60 days, the holders of a majority in principal amount of
the debt securities of your series must not have given the trustee
directions that are inconsistent with the written request of the holders
of not less than 25% in principal amount of the debt securities of your
series.
You are entitled at any time, however, to bring a lawsuit for the payment
of money due on your debt security on or after its due date.
Waiver of Default. The holders of not less than a majority in principal
amount of the outstanding debt securities of a series may waive a default for
all debt securities of that series. If this happens, the default will be treated
as if it has not occurred. No one can waive a payment default on your debt
security or a covenant or
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provision of the indenture that cannot be modified or amended without the
consent of the holder of each outstanding debt security of the series, however,
without the approval of the particular holder of that debt security.
We Will Give the Trustee Information About Defaults Annually. We will
furnish to each trustee every year a written statement of two of our officers
certifying that to their knowledge we are in compliance with the applicable
indenture and the debt securities issued under it, or else specifying any
default under the indenture.
Book-entry and other indirect owners should consult their banks or brokers
for information on how to give notice or direction to or make a request of the
trustee and how to declare or cancel an acceleration of the maturity. Book-entry
and other indirect owners are described below under "Legal Ownership and
Book-Entry Issuance."
CHANGES OF THE INDENTURES REQUIRING EACH HOLDER'S APPROVAL
There are certain changes that cannot be made without the approval of each
holder of a debt security affected by the change under a particular indenture.
Here is a list of those types of changes:
- change the stated maturity for any principal or interest payment on a
debt security;
- reduce the principal amount or the interest rate or the premium payable
upon the redemption of any debt security;
- reduce the amount of principal of an original issue discount security or
any other debt security payable upon acceleration of its maturity;
- change the currency of any payment on a debt security;
- change the place of payment on a debt security;
- impair a holder's right to sue for payment of any amount due on its debt
security;
- reduce the percentage in principal amount of the debt securities of any
series, the approval of whose holders is needed to change the applicable
indenture or those debt securities;
- reduce the percentage in principal amount of the debt securities of any
series, the consent of whose holders is needed to waive our compliance
with the applicable indenture or to waive defaults; and
- change the provisions of the applicable indenture dealing with
modification and waiver in any other respect, except to increase any
required percentage referred to above or to add to the provisions that
cannot be changed or waived without approval of the holder of each
affected debt security.
MODIFICATION OF SUBORDINATION PROVISIONS
We may not amend the subordinated debt indenture to alter the subordination
of any outstanding subordinated debt securities without the written consent of
each holder of senior debt then outstanding who would be adversely affected. In
addition, we may not modify the subordination provisions of the subordinated
debt indenture in a manner that would adversely affect the outstanding
subordinated debt securities of any one or more series in any material respect,
without the consent of the holders of a majority in aggregate principal amount
of all affected series, voting together as one class.
CHANGES OF THE INDENTURES NOT REQUIRING APPROVAL
Another type of change does not require any approval by holders of the debt
securities of an affected series. These changes are limited to clarifications
and changes that would not adversely affect the debt securities of that series
in any material respect. Nor do we need any approval to make changes that affect
only debt securities to be issued under the applicable indenture after the
changes take effect.
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We may also make changes or obtain waivers that do not adversely affect a
particular debt security, even if they affect other debt securities. In those
cases, we do not need to obtain the approval of the holder of the unaffected
debt security; we need only obtain any required approvals from the holders of
the affected debt securities.
CHANGES OF THE INDENTURES REQUIRING MAJORITY APPROVAL
Any other change to a particular indenture and the debt securities issued
under that indenture would require the following approval:
- If the change affects only the debt securities of a particular series, it
must be approved by the holders of a majority in principal amount of the
debt securities of that series.
- If the change affects the debt securities of more than one series of debt
securities issued under the applicable indenture, it must be approved by
the holders of a majority in principal amount of each series affected by
the change.
In each case, the required approval must be given by written consent.
The same majority approval would be required for us to obtain a waiver of
any of our covenants in either indenture. Our covenants include the promises we
make about merging and similar transactions, which we describe above under
"-- Mergers and Similar Transactions." If the requisite holders approve a waiver
of a covenant, we will not have to comply with it. The holders, however, cannot
approve a waiver of any provision in a particular debt security, or in the
applicable indenture as it affects that debt security, that we cannot change
without the approval of the holder of that debt security as described above in
"-- Changes of the Indentures Requiring Each Holder's Approval," unless that
holder approves the waiver.
Book-entry and other indirect owners should consult their banks or brokers
for information on how approval may be granted or denied if we seek to change an
indenture or any debt securities or request a waiver.
SPECIAL RULES FOR ACTION BY HOLDERS
When holders take any action under either debt indenture, such as giving a
notice of default, declaring an acceleration, approving any change or waiver or
giving the trustee an instruction, we will apply the following rules.
ONLY OUTSTANDING DEBT SECURITIES ARE ELIGIBLE
Only holders of outstanding debt securities of the applicable series will
be eligible to participate in any action by holders of debt securities of that
series. Also, we will count only outstanding debt securities in determining
whether the various percentage requirements for taking action have been met. For
these purposes, a debt security will not be "outstanding":
- if it has been surrendered for cancellation or cancelled;
- if we have deposited or set aside, in trust for its holder, money for its
payment or redemption;
- if we have fully defeased it as described above under "-- Defeasance and
Covenant Defeasance -- Full Defeasance";
- if it has been exchanged for other debt securities of the same series due
to mutilation, destruction, loss or theft; or
- if we or one of our affiliates is the owner, unless the debt security is
pledged under certain circumstances described in the indenture.
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ELIGIBLE PRINCIPAL AMOUNT OF SOME DEBT SECURITIES
In some situations, we may follow special rules in calculating the
principal amount of a debt security that is to be treated as outstanding for the
purposes described above. This may happen, for example, if the principal amount
is payable in a non-U.S. dollar currency, increases over time or is not to be
fixed until maturity.
For any debt security of the kind described below, we will decide how much
principal amount to attribute to the debt security as follows:
- For an original issue discount debt security, we will use the principal
amount that would be due and payable on the action date if the maturity
of the debt security were accelerated to that date because of a default;
- For a debt security whose principal amount is not determinable, we will
use any amount that we indicate in the applicable prospectus supplement
for that debt security. The principal amount of a debt security may not
be determinable, for example, because it is based on an index that
changes from time to time and the principal amount is not to be
determined until a later date; or
- For debt securities with a principal amount denominated in one or more
non-U.S. dollar currencies or currency units, we will use the U.S. dollar
equivalent, which we will determine.
DETERMINING RECORD DATES FOR ACTION BY HOLDERS
We will generally be entitled to set any day as a record date for the
purpose of determining the holders that are entitled to take action under either
indenture. In certain limited circumstances, only the trustee will be entitled
to set a record date for action by holders. If we or the trustee set a record
date for an approval or other action to be taken by holders, that vote or action
may be taken only by persons or entities who are holders on the record date and
must be taken during the period that we specify for this purpose, or that the
trustee specifies if it sets the record date. We or the trustee, as applicable,
may shorten or lengthen this period from time to time. This period, however, may
not extend beyond the 180th day after the record date for the action. In
addition, record dates for any global debt security may be set in accordance
with procedures established by the depositary from time to time. Accordingly,
record dates for global debt securities may differ from those for other debt
securities.
FORM, EXCHANGE AND TRANSFER OF DEBT SECURITIES
Unless we indicate otherwise in your prospectus supplement, the debt
securities will be issued:
- only in fully registered form; and
- in denominations of $1,000 and integral multiples of $1,000.
Holders may exchange their debt securities for debt securities of the same
series in any authorized denominations, as long as the total principal amount is
not changed.
Holders may exchange or transfer their debt securities at the office of the
trustee. They may also replace lost, stolen, destroyed or mutilated debt
securities at that office. We have appointed the trustee to act as our agent for
registering debt securities in the names of holders and transferring and
replacing debt securities.
Holders will not be required to pay a service charge to transfer or
exchange their debt securities, but they may be required to pay for any tax or
other governmental charge associated with the registration, exchange or
transfer. The transfer or exchange, and any replacement, will be made only if
our transfer agent is satisfied with the holder's proof of legal ownership. The
transfer agent may require an indemnity before replacing any debt securities.
If a debt security is issued as a global debt security, only the
depositary -- e.g., DTC, Euroclear and Clearstream -- will be entitled to
transfer and exchange the debt security as described in this subsection, since
the depositary will be the sole holder of the debt security.
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The rules for exchange described above apply to exchange of debt securities
for other debt securities of the same series and kind. If a debt security is
exchangeable for common or preferred shares of Vornado Realty Trust, the rules
governing that type of exchange will be described in the applicable prospectus
supplement.
PAYMENT MECHANICS FOR DEBT SECURITIES
WHO RECEIVES PAYMENT?
If interest is due on a debt security on an interest payment date, we will
pay the interest to the person in whose name the debt security is registered at
the close of business on the regular record date relating to the interest
payment date as described below under "-- Payment and Record Dates for
Interest." If interest is due at maturity but on a day that is not an interest
payment date, we will pay the interest to the person entitled to receive the
principal of the debt security. If principal or another amount besides interest
is due on a debt security at maturity, we will pay the amount to the holder of
the debt security against surrender of the debt security at a proper place of
payment or, in the case of a global debt security, in accordance with the
applicable policies of the depositary, Euroclear and Clearstream, as applicable.
PAYMENT AND RECORD DATES FOR INTEREST
Unless we specify otherwise in the applicable prospectus supplement,
interest on any fixed rate debt security will be payable semiannually each May
15 and November 15 and at maturity, and the regular record date relating to an
interest payment date for any fixed rate debt security will be the May 1 or
November 1 next preceding that interest payment date. The regular record date
relating to an interest payment date for any floating rate debt security will be
the 15th calendar day before that interest payment date. These record dates will
apply regardless of whether a particular record date is a "business day," as
defined below. For the purpose of determining the holder at the close of
business on a regular record date when business is not being conducted, the
close of business will mean 5:00 P.M., New York City time, on that day.
Business Day. The term "business day" means, with respect to the debt
securities of a series, a Monday, Tuesday, Wednesday, Thursday or Friday that is
not a day on which banking institutions in the place of payment for the debt
securities of that series are authorized or obligated by law or executive order
to close and that satisfies any other criteria specified in the applicable
prospectus supplement.
HOW WE WILL MAKE PAYMENTS DUE IN U.S. DOLLARS
We will follow the practice described in this subsection when paying
amounts due in U.S. dollars. Payments of amounts due in other currencies will be
made as described in the next subsection.
Payments on Global Debt Securities. We will make payments on a global debt
security in accordance with the applicable policies of the depositary as in
effect from time to time. Under those policies, we will make payments directly
to the depositary, or its nominee, and not to any indirect owners who own
beneficial interests in the global debt security. An indirect owner's right to
receive those payments will be governed by the rules and practices of the
depositary and its participants, as described below in the section entitled
"Legal Ownership and Book-Entry Issuance -- What Is a Global Security?"
Payments on Non-Global Debt Securities. We will make payments on a debt
security in non-global, registered form as follows. We will pay interest that is
due on an interest payment date by check mailed on the interest payment date to
the holder at his or her address shown on the trustee's records as of the close
of business on the regular record date. We will make all other payments by check
to the paying agent described below, against surrender of the debt security. All
payments by check will be made in next-day funds -- i.e., funds that become
available on the day after the check is cashed.
Alternatively, if a non-global debt security has a face amount of at least
$1,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City, on the due date. To request a wire payment,
the holder must give the paying agent appropriate wire transfer instructions at
least five business days before the requested wire payment is due. In the case
of any interest payment due on an interest payment date, the
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instructions must be given by the person or entity who is the holder on the
relevant regular record date. In the case of any other payment, payment will be
made only after the debt security is surrendered to the paying agent. Any wire
instructions, once properly given, will remain in effect unless and until new
instructions are given in the manner described above.
Book-entry and other indirect owners should consult their banks or brokers
for information on how they will receive payments on their debt securities.
HOW WE WILL MAKE PAYMENTS DUE IN OTHER CURRENCIES
We will follow the practice described in this subsection when paying
amounts that are due in a specified currency other than U.S. dollars.
Payments on Global Debt Securities. We will make payments on a global debt
security in accordance with the applicable policies as in effect from time to
time of the depositary, which will be DTC, Euroclear or Clearstream. Unless we
specify otherwise in the applicable prospectus supplement, The Depository Trust
Company, New York, New York, known as DTC, will be the depositary for all debt
securities in global form. We understand that DTC's policies, as currently in
effect, are as follows.
Unless otherwise indicated in your prospectus supplement, if you are an
indirect owner of global debt securities denominated in a specified currency
other than U.S. dollars and if you have the right to elect to receive payments
in that other currency and do so elect, you must notify the participant through
which your interest in the global debt security is held of your election:
- on or before the applicable regular record date, in the case of a payment
of interest; or
- on or before the 16th day before the stated maturity, or any redemption
or repayment date, in the case of payment of principal or any premium.
Your participant must, in turn, notify DTC of your election on or before
the third DTC business day after that regular record date, in the case of a
payment of interest, and on or before the 12th DTC business day prior to the
stated maturity, or on the redemption or repayment date if your debt security is
redeemed or repaid earlier, in the case of a payment of principal or any
premium.
DTC, in turn, will notify the paying agent of your election in accordance
with DTC's procedures.
If complete instructions are received by the participant and forwarded by
the participant to DTC, and by DTC to the paying agent, on or before the dates
noted above, the paying agent, in accordance with DTC's instructions, will make
the payments to you or your participant by wire transfer of immediately
available funds to an account maintained by the payee with a bank located in the
country issuing the specified currency or in another jurisdiction acceptable to
us and the paying agent.
If the foregoing steps are not properly completed, we expect DTC to inform
the paying agent that payment is to be made in U.S. dollars. In that case, we or
our agent will convert the payment to U.S. dollars in the manner described below
under "-- Conversion to U.S. Dollars." We expect that we or our agent will then
make the payment in U.S. dollars to DTC, and that DTC in turn will pass it along
to its participants.
Indirect owners of a global debt security denominated in a currency other
than U.S. dollars should consult their banks or brokers for information on how
to request payment in the specified currency.
Payments on Non-Global Debt Securities. Except as described in the last
paragraph under this heading, we will make payments on debt securities in
non-global form in the applicable specified currency. We will make these
payments by wire transfer of immediately available funds to any account that is
maintained in the applicable specified currency at a bank designated by the
holder and which is acceptable to us and the trustee. To designate an account
for wire payment, the holder must give the paying agent appropriate wire
instructions
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at least five business days before the requested wire payment is due. In the
case of any interest payment due on an interest payment date, the instructions
must be given by the person or entity who is the holder on the regular record
date. In the case of any other payment, the payment will be made only after the
debt security is surrendered to the paying agent. Any instructions, once
properly given, will remain in effect unless and until new instructions are
properly given in the manner described above.
If a holder fails to give instructions as described above, we will notify
the holder at the address in the trustee's records and will make the payment
within five business days after the holder provides appropriate instructions.
Any late payment made in these circumstances will be treated under the
applicable indenture as if made on the due date, and no interest will accrue on
the late payment from the due date to the date paid.
Although a payment on a debt security in non-global form may be due in a
specified currency other than U.S. dollars, we will make the payment in U.S.
dollars if the holder asks us to do so. To request U.S. dollar payment, the
holder must provide appropriate written notice to the trustee at least five
business days before the next due date for which payment in U.S. dollars is
requested. In the case of any interest payment due on an interest payment date,
the request must be made by the person or entity who is the holder on the
regular record date. Any request, once properly made, will remain in effect
unless and until revoked by notice properly given in the manner described above.
Book-entry and other indirect owners of a debt security with a specified
currency other than U.S. dollars should contact their banks or brokers for
information about how to receive payments in the specified currency or in U.S.
dollars.
Conversion to U.S. Dollars. When we are asked by a holder to make payments
in U.S. dollars of an amount due in another currency, either on a global debt
security or a non-global debt security as described above, the exchange rate
agent described below will calculate the U.S. dollar amount the holder receives
in the exchange rate agent's discretion.
A holder that requests payment in U.S. dollars will bear all associated
currency exchange costs, which will be deducted from the payment.
When the Specified Currency Is Not Available. If we are obligated to make
any payment in a specified currency other than U.S. dollars, and the specified
currency or any successor currency is not available to us due to circumstances
beyond our control -- such as the imposition of exchange controls or a
disruption in the currency markets -- we will be entitled to satisfy our
obligation to make the payment in that specified currency by making the payment
in U.S. dollars, on the basis of the exchange rate determined by the exchange
rate agent described below, in its discretion.
The foregoing will apply to any debt security, whether in global or
non-global form, and to any payment, including a payment at maturity. Any
payment made under the circumstances and in a manner described above will not
result in a default under any debt security or the applicable indenture.
The Euro. The euro may be a specified currency for some debt securities.
On January 1, 1999, the euro became the legal currency for the 11 member states
participating in the European Economic and Monetary Union.
Exchange Rate Agent. If we issue a debt security in a specified currency
other than U.S. dollars, we will appoint a financial institution to act as the
exchange rate agent and will name the institution initially appointed when the
debt security is originally issued in the applicable prospectus supplement. We
may change the exchange rate agent from time to time after the original issue
date of the debt security without your consent and without notifying you of the
change.
All determinations made by the exchange rate agent will be in its sole
discretion unless we state in the applicable prospectus supplement that any
determination requires our approval. In the absence of manifest
35
error, those determinations will be conclusive for all purposes and binding on
you and us, without any liability on the part of the exchange rate agent.
PAYMENT WHEN OFFICES ARE CLOSED
If any payment is due on a debt security on a day that is not a business
day, we will make the payment on the next day that is a business day. Payments
postponed to the next business day in this situation will be treated under the
applicable indenture as if they were made on the original due date. Postponement
of this kind will not result in a default under any debt security or the
applicable indenture, and no interest will accrue on the postponed amount from
the original due date to the next day that is a business day. The term business
day has a special meaning, which we describe above under "-- Payment and Record
Dates for Interest."
PAYING AGENT
We may appoint one or more financial institutions to act as our paying
agents, at whose designated offices debt securities in non-global entry form may
be surrendered for payment at their maturity. We call each of those offices a
paying agent. We may add, replace or terminate paying agents from time to time.
We may also choose to act as our own paying agent. Initially, we have
appointed the trustee, at its corporate trust office in New York City, as the
paying agent. We must notify the trustee of changes in the paying agents.
UNCLAIMED PAYMENTS
Regardless of who acts as paying agent, all money paid by us to a paying
agent that remains unclaimed at the end of two years after the amount is due to
a holder will be repaid to us. After that two-year period, the holder may look
only to us for payment and not to the trustee, any other paying agent or anyone
else.
NOTICES
Notices to be given to holders of a global debt security will be given only
to the depositary, in accordance with its applicable policies as in effect from
time to time. Notices to be given to holders of debt securities not in global
form will be sent by mail to the respective addresses of the holders as they
appear in the trustee's records. Neither the failure to give any notice to a
particular holder, nor any defect in a notice given to a particular holder, will
affect the sufficiency of any notice given to another holder.
Book-entry and other indirect owners should consult their banks or brokers
for information on how they will receive notices.
OUR RELATIONSHIP WITH THE TRUSTEE
The Bank of New York has provided commercial banking and other services for
us and our affiliates in the past and may do so in the future.
The Bank of New York is initially serving as the trustee for our senior
debt securities and subordinated debt securities. Consequently, if an actual or
potential event of default occurs with respect to any of these securities, the
trustee may be considered to have a conflicting interest for purposes of the
Trust Indenture Act of 1939. In that case, the trustee may be required to resign
under one or more of the indentures, and we would be required to appoint a
successor trustee. For this purpose, a "potential" event of default means an
event that would be an event of default if the requirements for giving us
default notice or for the default having to exist for a specific period of time
were disregarded.
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DESCRIPTION OF SHARES OF BENEFICIAL INTEREST OF VORNADO REALTY TRUST
The following descriptions of the material terms of the shares of
beneficial interest of Vornado Realty Trust are only a summary and are subject
to, and qualified in their entirety by reference to, the more complete
descriptions of the shares in the following documents: (a) Vornado Realty
Trust's amended and restated declaration of trust, including the articles
supplementary for each series of preferred shares, and (b) its amended and
restated bylaws, copies of which are exhibits to the registration statement of
which this prospectus is a part. Please note that in this section entitled
"Description of Shares of Beneficial Interest of Vornado Realty Trust,"
references to "Vornado," "we," "our" and "us" refer only to Vornado Realty Trust
and not to its subsidiaries or Vornado Realty L.P. unless the context requires
otherwise.
For Vornado to maintain its qualification as a REIT under the Internal
Revenue Code, not more than 50% of the value of its outstanding shares of
beneficial interest may be owned, directly or indirectly, by five or fewer
individuals, as defined in the Code to include certain entities, at any time
during the last half of a taxable year and the shares of beneficial interest
must be beneficially owned by 100 or more persons during at least 335 days of a
taxable year of 12 months or during a proportionate part of a shorter taxable
year. Accordingly, the declaration of trust contains provisions that restrict
the ownership and transfer of shares of beneficial interest.
The declaration of trust authorizes the issuance of up to 540,000,000
shares, consisting of 200,000,000 common shares, $.04 par value per share,
70,000,000 preferred shares of beneficial interest, no par value per share, and
270,000,000 excess shares of beneficial interest, $.04 par value per share.
DESCRIPTION OF PREFERRED SHARES OF VORNADO REALTY TRUST
The following is a description of the material terms and provisions of our
preferred shares. The particular terms of any series of preferred shares will be
described in the applicable prospectus supplement, which will supplement the
information below.
The description of the material terms of Vornado's preferred shares
contained in this prospectus is only a summary and is qualified in its entirety
by the provisions of the declaration of trust, which includes the articles
supplementary relating to each series of the preferred shares, which will be
filed as an exhibit to or incorporated by reference in the registration
statement of which this prospectus is a part at or before the time of issuance
of the series of preferred shares.
As of July 31, 2003, the declaration of trust authorizes the issuance of
70,000,000 preferred shares. Of the authorized 70,000,000 preferred shares,
Vornado has designated:
- 5,789,239 as $3.25 Series A Convertible Preferred Shares;
- 3,400,000 as 8.5% Series B Cumulative Redeemable Preferred Shares;
- 4,600,000 as 8.5% Series C Cumulative Redeemable Preferred Shares;
- 3,500,000 as Series D-1 8.5% Cumulative Redeemable Preferred Shares;
- 549,336 as 8.375% Series D-2 Cumulative Redeemable Preferred Shares;
- 8,000,000 as Series D-3 8.25% Cumulative Redeemable Preferred Shares;
- 5,000,000 as Series D-4 8.25% Cumulative Redeemable Preferred Shares;
- 7,480,000 as Series D-5 8.25% Cumulative Redeemable Preferred Shares;
- 1,000,000 as Series D-6 8.25% Cumulative Redeemable Preferred Shares;
- 7,200,000 as Series D-7 8.25% Cumulative Redeemable Preferred Shares;
37
- 360,000 as Series D-8 8.25% Cumulative Redeemable Preferred Shares; and
- 1,800,000 as Series D-9 8.25% Cumulative Redeemable Preferred Shares.
As of July 31, 2003, 1,064,238 Series A Preferred Shares, 3,400,000 Series B
Preferred Shares and 4,600,000 Series C Preferred Shares were outstanding. The
Series A Preferred Shares are listed on the NYSE under the symbol "VNO Pr A,"
the Series B Preferred Shares are listed on the NYSE under the symbol "VNO Pr B"
and the Series C Preferred Shares are listed on the NYSE under the symbol "VNO
Pr C." No Series D-1, Series D-2, Series D-3, Series D-4, Series D-5, Series
D-6, Series D-7, Series D-8, or Series D-9 Preferred Shares were issued and
outstanding as of July 31, 2003. Shares of each of these series may be issued in
the future upon redemption of preferred units of limited partnership interest of
Vornado Realty L.P. of a corresponding series that were issued and outstanding
as of July 31, 2003.
The preferred shares authorized by our declaration of trust may be issued
from time to time in one or more series in the amounts and with the
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption as may be fixed by the board of trustees. Under certain
circumstances, the issuance of preferred shares could have the effect of
delaying, deferring or preventing a change of control of Vornado and may
adversely affect the voting and other rights of the holders of common shares.
The declaration of trust authorizes the board of trustees to classify or
reclassify, in one or more series, any unissued preferred shares and to
reclassify any unissued shares of any series of preferred shares by setting or
changing the number of preferred shares constituting the series and the
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption of the preferred shares.
The preferred shares have the dividend, liquidation, redemption and voting
rights described below, as supplemented in the applicable prospectus supplement
relating to each particular series of the preferred shares. The applicable
prospectus supplement will describe the following terms of the series of
preferred shares:
- the title of the preferred shares and the number of shares offered;
- the amount of liquidation preference per share;
- the initial public offering price at which the preferred shares will be
issued;
- the dividend rate or method of calculation, the dates on which dividends
will be payable and the dates from which dividends will commence to
accumulate, if any;
- any redemption or sinking fund provisions;
- any conversion or exchange rights;
- any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, limitations and restrictions;
- any listing of the preferred shares on any securities exchange;
- the relative ranking and preferences of the preferred shares as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of Vornado;
- any limitations on issuance of any series of preferred shares ranking
senior to or on a parity with the series of preferred shares as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of Vornado; and
- any limitations on direct, beneficial or constructive ownership and
restrictions on transfer, in each case as may be appropriate to preserve
the status of Vornado as a REIT.
The applicable prospectus supplement may also include a discussion of federal
income tax considerations applicable to the preferred shares.
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The preferred shares will be issued in one or more series. The preferred
shares, upon issuance against full payment of the applicable purchase price,
will be fully paid and nonassessable. The liquidation preference is not
indicative of the price at which the preferred shares will actually trade on or
after the date of issuance.
RANK
With respect to dividend rights and rights upon liquidation, dissolution or
winding up of Vornado, the preferred shares will rank senior to our common
shares and excess shares created when our ownership limits are breached as
described under "-- Description of Common Shares of Vornado Realty
Trust -- Restrictions on Ownership of Common Shares" below, other than certain
excess shares resulting from the conversion of preferred shares, and to all
other classes and series of equity securities of Vornado now or later
authorized, issued or outstanding, other than any classes or series of equity
securities of Vornado that by their terms specifically rank equal or senior to
the preferred shares as to dividend rights and rights upon liquidation,
dissolution or winding up of Vornado. We refer to the common shares and the
other classes and series of equity securities to which the preferred shares rank
senior as to dividend rights and rights upon liquidation, dissolution or winding
up of Vornado as the "junior stock"; we refer to equity securities of Vornado
that by their terms rank equal to the preferred shares as the "parity stock";
and we refer to equity securities of Vornado that by their terms rank senior to
the preferred shares as the "senior stock." The preferred shares are junior to
all outstanding debt of Vornado. We may create and issue senior stock, parity
stock and junior stock to the extent not expressly prohibited by the declaration
of trust.
DIVIDENDS
Holders of our preferred shares are entitled to receive, when, as and if
authorized by our board of trustees out of our assets legally available for
payment, dividends, or distributions in cash, property or other assets of
Vornado or in securities of Vornado or from any other source as our board of
trustees in its discretion determines and at the dates and annual rate per share
as described in the applicable prospectus supplement. This rate may be fixed or
variable or both. Each authorized dividend is payable to holders of record as
they appear at the close of business on the books of Vornado on the record date,
not more than 30 calendar days preceding the payment date, as determined by our
board of trustees.
These dividends may be cumulative or noncumulative, as described in the
applicable prospectus supplement. If dividends on a series of preferred shares
are noncumulative and if our board of trustees fails to authorize a dividend in
respect of a dividend period with respect to that series, then holders of these
preferred shares will have no right to receive a dividend in respect of that
dividend period, and we will have no obligation to pay the dividend for that
period, whether or not dividends are authorized and payable on any future
dividend payment dates. If dividends of a series of preferred shares are
cumulative, the dividends on those shares will accrue from and after the date
stated in the applicable prospectus supplement.
No full dividends may be authorized or paid or set apart for payment on
preferred shares of any series ranking, as to dividends, on a parity with or
junior to the series of preferred shares offered by the applicable prospectus
supplement for any period unless full dividends for the immediately preceding
dividend period on the preferred shares, including any accumulation in respect
of unpaid dividends for prior dividend periods, if dividends on the preferred
shares are cumulative, have been or contemporaneously are authorized and paid or
authorized and a sum sufficient for payment is set apart for payment. When
dividends are not paid in full, or a sum sufficient for the full payment is not
set apart, upon the preferred shares offered by the applicable prospectus
supplement and any other preferred shares ranking on a parity as to dividends
with those preferred shares, dividends upon those preferred shares and dividends
on the other preferred shares must be authorized proportionately so that the
amount of dividends authorized per share on those preferred shares and the other
preferred shares in all cases bear to each other the same ratio that accrued
dividends for the then-current dividend period per share on those preferred
shares, including any accumulation in respect of unpaid dividends for prior
dividend periods, if dividends on those preferred shares are cumulative, and
accrued dividends, including required or permitted accumulations, if any, on
shares of the other preferred shares, bear to each other. No interest, or sum of
money in lieu of interest, will be payable in respect of any dividend payment(s)
on preferred shares that are in arrears. Unless full dividends on the series of
preferred shares offered by the
39
applicable prospectus supplement have been authorized and paid or set apart for
payment for the immediately preceding dividend period, including any
accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on the preferred shares are cumulative:
- no cash dividend or distribution, other than in shares of junior stock,
may be authorized, set aside or paid on the junior stock;
- we may not, directly or indirectly, repurchase, redeem or otherwise
acquire any shares of junior stock, or pay any monies into a sinking fund
for the redemption of any shares, except by conversion into or exchange
for junior stock; and
- we may not, directly or indirectly, repurchase, redeem or otherwise
acquire any preferred shares or parity stock, or pay any monies into a
sinking fund for the redemption of any shares, otherwise than in
accordance with proportionate offers to purchase or a concurrent
redemption of all, or a proportionate portion, of the outstanding
preferred shares and shares of parity stock, except by conversion into or
exchange for junior stock.
Any dividend payment made on a series of preferred shares will first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of the series.
REDEMPTION
The terms, if any, on which preferred shares of any series may be redeemed
will be described in the applicable prospectus supplement.
LIQUIDATION
If we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, the holders of a series of our preferred shares will be entitled,
subject to the rights of creditors, but before any distribution or payment to
the holders of our common shares, excess shares, other than certain excess
shares resulting from the conversion of preferred shares, or any junior stock,
to receive a liquidating distribution in the amount of the liquidation
preference per share stated in the applicable prospectus supplement plus accrued
and unpaid dividends for the then-current dividend period, including any
accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on the series of preferred shares are cumulative. If the amounts
available for distribution with respect to our preferred shares and all other
outstanding parity stock are not sufficient to satisfy the full liquidation
rights of all the outstanding preferred shares and parity stock, then the
holders of each series of the stock will share ratably in the distribution of
assets in proportion to the full respective preferential amount, which in the
case of preferred shares may include accumulated dividends, to which they are
entitled. After payment of the full amount of the liquidation distribution, the
holders of preferred shares will not be entitled to any further participation in
any distribution of assets by us.
Vornado is organized as a Maryland real estate investment trust under Title
8 of the Maryland General Corporation Law. Title 8 does not contain any specific
provisions on the power of a Maryland real estate investment trust to make
distributions, including dividends, to its shareholders. It is possible that a
Maryland court may look to the other titles of the MGCL for guidance on matters,
such as the making of distributions to shareholders, not covered by Title 8. The
MGCL requires that, after giving effect to a distribution, (1) the corporation
must be able to pay its debts as they become due in the usual course of business
and (2) the corporation's total assets must at least equal the sum of its total
liabilities plus the preferential rights on dissolution of shareholders whose
rights on dissolution are superior to those shareholders receiving the
distribution. However, the MGCL also provides that the charter of the
corporation may provide that senior dissolution preferences will not be included
with liabilities for purposes of determining amounts available for distribution.
The applicable articles supplementary may include a similar provision. The
Articles Supplementary for the Series A Preferred Shares, Series B Preferred
Shares and Series C Preferred Shares each contain such a provision.
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VOTING
The preferred shares of a series will not be entitled to vote, except as
described below or in the applicable prospectus supplement. Without the
affirmative vote of a majority of the preferred shares then outstanding, voting
separately as a class together with any parity stock, we may not:
- increase or decrease the aggregate number of authorized shares of the
class or any security ranking senior to the preferred shares;
- increase or decrease the par value of the shares of the class; or
- alter or change the voting or other powers, preferences or special rights
of the class so as to affect them adversely.
An amendment that increases the number of authorized shares of the class or
authorizes the creation or issuance of other classes or series of junior stock
or parity stock, or substitutes the surviving entity in a merger, consolidation,
reorganization or other business combination for Vornado, will not be considered
to be an adverse change.
NO OTHER RIGHTS
The shares of a series of preferred shares will not have any preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications, and terms and conditions of
redemption except as described above or in the applicable prospectus supplement,
the declaration of trust and in the applicable articles supplementary or as
otherwise required by law.
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for each series of preferred shares will
be Wachovia Bank, N.A., Charlotte, North Carolina, unless a different transfer
agent is named in the applicable prospectus supplement.
RESTRICTIONS ON OWNERSHIP
As discussed below, for us to maintain our qualification as a REIT under
the Internal Revenue Code, not more than 50% in value of our outstanding shares
of beneficial interest may be owned, directly or constructively, by five or
fewer individuals, as defined in the Code to include certain entities, at any
time during the last half of a taxable year, and the shares of beneficial
interest must be beneficially owned by 100 or more persons during at least 335
days of a taxable year of 12 months, or during a proportionate part of a shorter
taxable year. Therefore, the declaration of trust contains, and the articles
supplementary for each series of preferred shares may contain, provisions
restricting the ownership and transfer of the preferred shares.
Our declaration of trust contains a preferred shares beneficial ownership
limit that restricts shareholders from owning, under the applicable attribution
rules of the Code, more than 9.9% of the outstanding preferred shares of any
series. The attribution rules which apply for purposes of the common shares
beneficial ownership limit also apply for purposes of the preferred shares
beneficial ownership limit. For more information about these attribution rules,
see "-- Description of Common Shares of Vornado Realty Trust -- Restrictions on
Ownership of Common Shares." Investors should be aware that events other than a
purchase or other transfer of preferred shares may result in ownership, under
the applicable attribution rules of the Code, of preferred shares in excess of
the preferred shares beneficial ownership limit. We urge investors to consult
their own tax advisors concerning the application of the attribution rules of
the Code in their particular circumstances.
Holders of preferred shares are also subject to the constructive ownership
limit, which restricts them from owning, under the applicable attribution rules
of the Code, more than 9.9% of the outstanding preferred shares of any series.
See "-- Description of Common Shares of Vornado Realty Trust -- Restrictions on
Ownership of Common Shares" below for more information about the constructive
ownership limit.
The attribution rules that apply for purposes of the constructive ownership
limit differ from those that apply for purposes of the preferred shares
beneficial ownership limit. See "-- Description of Common Shares
41
of Vornado Realty Trust -- Restrictions on Ownership of Common Shares" for more
information about these attribution rules. Investors should be aware that events
other than a purchase or other transfer of preferred shares may result in
ownership, under the applicable attribution rules of the Code, of preferred
shares in excess of the constructive ownership limit. We urge investors to
consult their own tax advisors concerning the application of the attribution
rules of the Code in their particular circumstances.
The declaration of trust provides that a transfer of preferred shares that
would otherwise result in ownership, under the applicable attribution rules of
the Internal Revenue Code, of preferred shares in excess of the preferred shares
beneficial ownership limit or the constructive ownership limit, or which would
cause the shares of beneficial interest of Vornado Realty Trust to be
beneficially owned by fewer than 100 persons, will be void and the purported
transferee will acquire no rights or economic interest in the preferred shares.
In addition, preferred shares that would otherwise be owned, under the
applicable attribution rules of the Code, in excess of the preferred shares
beneficial ownership limit or the constructive ownership limit will be
automatically exchanged for our excess shares that will be transferred, by
operation of law, to Vornado as trustee of a trust for the exclusive benefit of
a beneficiary designated by the purported transferee or purported holder. While
held in the trust, excess shares are not entitled to vote and are not entitled
to participate in any dividends or distributions made by Vornado. Any dividends
or distributions received by the purported transferee or other purported holder
of the excess shares before Vornado discovers the automatic exchange for excess
shares must be repaid to Vornado upon demand.
If the purported transferee or holder elects to designate a beneficiary of
an interest in the trust with respect to the excess shares, the purported
transferee or holder may only designate a person whose ownership of the shares
will not violate the preferred shares beneficial ownership limit or the
constructive ownership limit. When the purported transferee or purported holder
designates an eligible person, the excess shares will be automatically exchanged
for preferred shares of the same class as the preferred shares that were
originally exchanged for the excess shares. The declaration of trust contains
provisions designed to ensure that the purported transferee or other holder of
the excess shares may not receive in return for the transfer an amount that
reflects any appreciation in the preferred shares for which the excess shares
were exchanged during the period that the excess shares were outstanding but
will bear the burden of any decline in value during that period. Any amount
received by a purported transferee or other holder for designating a beneficiary
in excess of the amount permitted to be received must be turned over to Vornado.
Our declaration of trust provides that we may purchase any excess shares that
have been automatically exchanged for preferred shares as a result of a
purported transfer or other event. The price at which we may purchase the excess
shares will be equal to the lesser of:
- in the case of excess shares resulting from a purported transfer for
value, the price per share in the purported transfer that resulted in the
automatic exchange for excess shares or, in the case of excess shares
resulting from some other event, the market price of the preferred shares
exchanged on the date of the automatic exchange for excess shares; and
- the market price of the preferred shares exchanged for the excess shares
on the date that Vornado accepts the deemed offer to sell the excess
shares.
Our purchase right with respect to excess shares will exist for 90 days,
beginning on the date that the automatic exchange for excess shares occurred or,
if Vornado did not receive a notice concerning the purported transfer that
resulted in the automatic exchange for excess shares, the date that our board of
trustees determines in good faith that an exchange for excess shares has
occurred.
Our board of trustees may exempt certain persons from the preferred shares
beneficial ownership limit or the constructive ownership limit if evidence
satisfactory to the trustees is presented showing that the exemption will not
jeopardize Vornado's status as a REIT under the Code. As a condition of the
exemption, the board of trustees may require a ruling from the Internal Revenue
Service, an opinion of counsel satisfactory to it and representations and
undertakings from the applicant with respect to preserving the REIT status of
Vornado.
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The foregoing restrictions on transferability and ownership will not apply
if our board of trustees determines that it is no longer in the best interests
of Vornado to attempt to qualify, or to continue to qualify, as a REIT.
All certificates evidencing preferred shares will bear a legend referring
to the restrictions described above.
All persons who own, directly or by virtue of the applicable attribution
rules of the Internal Revenue Code, more than 2% of the outstanding preferred
shares of any series must give a written notice to Vornado containing the
information specified in our declaration of trust by January 31 of each year. In
addition, each shareholder upon demand must disclose to Vornado any information
Vornado may request, in good faith, in order to determine Vornado's status as a
REIT or to comply with Treasury regulations promulgated under the REIT
provisions of the Code.
DEPOSITARY SHARES
We may, at our option, elect to offer depositary shares, which represent
receipts for fractional interests in preferred shares rather than full preferred
shares. If we offer depositary shares, depositary receipts for depositary
shares, each of which will represent a fraction of a share of a particular
series of preferred shares, will be issued as described below. The prospectus
supplement relating to any series of depositary shares will state the fraction
of a preferred share represented by each depositary share.
The description below of the material provisions of the deposit agreement
and of the depositary shares and depositary receipts is only a summary and is
qualified in its entirety by reference to the forms of deposit agreement and
depositary receipts relating to each series of the depositary shares that have
been or will be filed with the SEC at or before the time of the offering or sale
of a series of depositary shares. The particular terms of depositary shares
representing fractional interests in any particular series of preferred shares
will be described in the applicable prospectus supplement, which will supplement
the information in this prospectus.
The shares of any series of preferred shares represented by depositary
shares will be deposited under a deposit agreement between Vornado and the
depositary. Subject to the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable fraction of a preferred share
represented by the depositary share, to all the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of the
preferred shares represented by the depositary share.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred shares to the record holders
of depositary shares relating to the preferred shares in proportion to the
numbers of depositary shares owned by the holders.
If we make a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares in
an equitable manner, unless the depositary determines that it is not feasible to
make the distribution, in which case the depositary may sell the property and
distribute the net proceeds from the sale to the holders.
WITHDRAWAL OF PREFERRED SHARES
Upon surrender of depositary receipts at the corporate trust office of the
depositary, unless the related depositary shares have previously been called for
redemption or converted into excess shares or otherwise, each depositary receipt
holder will be entitled to delivery at the depositary's corporate trust office,
to or upon the holder's order, of the number of whole or fractional shares of
the class or series of preferred shares and any money or other property
represented by the depositary shares evidenced by the depositary receipts.
Holders of depositary receipts will be entitled to receive whole or fractional
shares of the related class or series of preferred shares on the basis of the
fraction of a preferred share represented by each depositary share as specified
in the applicable prospectus supplement, but holders of the preferred shares
will not be entitled to receive depositary shares representing the preferred
shares after exchanging the depositary shares for preferred
43
shares. If the depositary receipts delivered by the holder evidence a number of
depositary shares in excess of the number of depositary shares representing the
number of preferred shares to be withdrawn, the depositary will deliver to the
holder at the same time a new depositary receipt evidencing the excess number of
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of preferred shares represented by depositary shares is subject
to redemption, the depositary shares will be redeemed from the proceeds received
by the depositary resulting from the redemption, in whole or in part, of the
series of preferred shares held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the redemption
price per share payable with respect to the series of preferred shares. Whenever
we redeem preferred shares held by the depositary, the depositary will redeem as
of the same redemption date the number of depositary shares representing the
redeemed preferred shares. If fewer than all the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot,
proportionately or by any other equitable method as may be determined by the
depositary.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the preferred
shares are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary shares relating
to the preferred shares. Each record holder of these depositary shares on the
record date will be entitled to instruct the depositary as to the exercise of
the voting rights pertaining to the amount of the preferred shares represented
by the holder's depositary shares. The record date for voting the depositary
shares will be the same as the record date for voting the preferred shares. The
depositary will endeavor, insofar as practicable, to vote the amount of the
preferred shares represented by the depositary shares in accordance with the
instructions, and we will take all reasonable action deemed necessary by the
depositary in order to enable the depositary to do so. The depositary will
abstain from voting the preferred shares to the extent it does not receive
specific instructions from the holder of depositary shares representing those
preferred shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
Vornado and the depositary may amend the form of depositary receipt
evidencing the depositary shares and any provision of the deposit agreement at
any time. However, any amendment that materially and adversely alters the rights
of the holders of depositary shares will not be effective unless the holders of
at least a majority of the depositary shares then outstanding approve the
amendment. The deposit agreement will only terminate if (a) all outstanding
depositary shares have been redeemed or (b) there has been a final distribution
in respect of the preferred shares in connection with any liquidation,
dissolution or winding up of Vornado and that distribution has been distributed
to the holders of the related depositary shares.
CHARGES OF DEPOSITARY
Vornado will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. Vornado will
pay charges of the depositary in connection with the initial deposit of the
preferred shares and issuance of depositary receipts, all withdrawals of
preferred shares by owners of depositary shares and any redemption of the
preferred shares. Holders of depositary receipts will pay other transfer and
other taxes and governmental charges and any other charges expressly provided in
the deposit agreement to be for their account.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to Vornado notice of
its election to do so, and Vornado may at any time remove the depositary. The
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of the appointment. The successor depositary must
be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust
44
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
RESTRICTIONS ON OWNERSHIP
In order to safeguard Vornado against an inadvertent loss of REIT status,
the deposit agreement or the declaration of trust or both will contain
provisions restricting the ownership and transfer of depositary shares. These
restrictions will be described in the applicable prospectus supplement.
REPORTS; LIABILITY OF DEPOSITARY AND VORNADO REALTY TRUST
The depositary will forward all reports and communications from Vornado
that are delivered to it and that Vornado is required or otherwise determines to
furnish to the holders of the preferred shares.
Neither the depositary nor Vornado will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. The obligations of Vornado and the
depositary under the deposit agreement will be limited to performance in good
faith of their duties under the deposit agreement, and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred shares unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting preferred shares for deposit, holders
of depositary shares or other persons believed to be competent and on documents
believed to be genuine.
DESCRIPTION OF COMMON SHARES OF VORNADO REALTY TRUST
The following description of the common shares is only a summary of, and is
qualified in its entirety by reference to, the provisions governing the common
shares contained in the declaration of trust and bylaws. Copies of the
declaration of trust and bylaws are exhibits to the registration statement of
which this prospectus is a part. See "Available Information" for information
about how to obtain copies of the declaration of trust and bylaws.
As of July 31, 2003, 113,154,902 common shares were issued and outstanding.
No excess shares were issued and outstanding as of July 31, 2003. The common
shares of Vornado Realty Trust are listed on the NYSE under the symbol "VNO."
DIVIDEND AND VOTING RIGHTS OF HOLDERS OF COMMON SHARES
The holders of common shares are entitled to receive dividends when, if and
as authorized by the board of trustees and declared by Vornado out of assets
legally available to pay dividends, if receipt of the dividends is in compliance
with the provisions in the declaration of trust restricting the transfer of
shares of beneficial interest. However, if any preferred shares are at the time
outstanding, Vornado may only pay dividends or other distributions on common
shares or purchase common shares if full cumulative dividends have been paid on
outstanding preferred shares and there is no arrearage in any mandatory sinking
fund on outstanding preferred shares. The terms of the series of preferred
shares that are now issued and outstanding do not provide for any mandatory
sinking fund.
The holders of common shares are entitled to one vote for each share on all
matters on which shareholders are entitled to vote, including elections of
trustees. There is no cumulative voting in the election of trustees, which means
that the holders of a majority of the outstanding common shares can elect all of
the trustees then standing for election. The holders of common shares do not
have any conversion, redemption or preemptive rights to subscribe to any
securities of Vornado. If Vornado is dissolved, liquidated or wound up, holders
of common shares are entitled to share proportionally in any assets remaining
after the prior rights of creditors, including holders of Vornado's
indebtedness, and the aggregate liquidation preference of any preferred shares
then outstanding are satisfied in full.
45
The common shares have equal dividend, distribution, liquidation and other
rights and have no preference, appraisal or exchange rights. All outstanding
common shares are, and any common shares offered by a prospectus supplement,
upon issuance, will be, duly authorized, fully paid and non-assessable.
The transfer agent for the common shares is Wachovia Bank, N.A., Charlotte,
North Carolina.
RESTRICTIONS ON OWNERSHIP OF COMMON SHARES
The Common Shares Beneficial Ownership Limit. For Vornado to maintain its
qualification as a REIT under the Internal Revenue Code, not more than 50% of
the value of its outstanding shares of beneficial interest may be owned,
directly or indirectly, by five or fewer individuals at any time during the last
half of a taxable year and the shares of beneficial interest must be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year of 12 months, or during a proportionate part of a shorter taxable year. The
Internal Revenue Code defines "individuals" to include some entities for
purposes of the preceding sentence. All references to a shareholder's ownership
of common shares in this section "-- The Common Shares Beneficial Ownership
Limit" assume application of the applicable attribution rules of the Internal
Revenue Code under which, for example, a shareholder is deemed to own shares
owned by his or her spouse.
The declaration of trust contains a number of provisions that restrict the
ownership and transfer of shares and are designed to safeguard Vornado against
an inadvertent loss of its REIT status. These provisions also seek to deter
non-negotiated acquisitions of, and proxy fights for, us by third parties. The
declaration of trust contains a limitation that restricts, with some exceptions,
shareholders from owning more than a specified percentage of the outstanding
common shares. We call this percentage the "common shares beneficial ownership
limit." The common shares beneficial ownership limit was initially set at 2.0%
of the outstanding common shares. The board of trustees subsequently adopted a
resolution raising the common shares beneficial ownership limit from 2.0% to
6.7% of the outstanding common shares and has the authority to grant exemptions
from the common shares beneficial ownership limit. The shareholders who owned
more than 6.7% of the common shares immediately after the merger of Vornado,
Inc. into Vornado in May 1993 may continue to do so and may acquire additional
common shares through stock option and similar plans or from other shareholders
who owned more than 6.7% of the common shares immediately after that merger.
However, common shares cannot be transferred if, as a result, more than 50% in
value of the outstanding shares of Vornado would be owned by five or fewer
individuals. While the shareholders who owned more than 6.7% of the common
shares immediately after the merger of Vornado, Inc. into Vornado in May 1993
are not generally permitted to acquire additional common shares from any other
source, these shareholders may acquire additional common shares from any source
if Vornado issues additional common shares, up to the percentage held by them
immediately before Vornado issues the additional shares.
Shareholders should be aware that events other than a purchase or other
transfer of common shares can result in ownership, under the applicable
attribution rules of the Internal Revenue Code, of common shares in excess of
the common shares beneficial ownership limit. For instance, if two shareholders,
each of whom owns 3.5% of the outstanding common shares, were to marry, then
after their marriage both shareholders would be deemed to own 7.0% of the
outstanding common shares, which is in excess of the common shares beneficial
ownership limit. Similarly, if a shareholder who owns 4.9% of the outstanding
common shares were to purchase a 50% interest in a corporation which owns 4.8%
of the outstanding common shares, then the shareholder would be deemed to own
7.3% of the outstanding common shares. You should consult your own tax advisors
concerning the application of the attribution rules of the Internal Revenue Code
in your particular circumstances.
The Constructive Ownership Limit. Under the Internal Revenue Code, rental
income received by a REIT from persons in which the REIT is treated, under the
applicable attribution rules of the Code, as owning a 10% or greater interest
does not constitute qualifying income for purposes of the income requirements
that REITs must satisfy. For these purposes, a REIT is treated as owning any
stock owned, under the applicable attribution rules of the Code, by a person
that owns 10% or more of the value of the outstanding shares of the REIT. The
attribution rules of the Code applicable for these purposes are different from
those applicable with respect to the common shares beneficial ownership limit.
All references to a
46
shareholder's ownership of common shares in this section "-- The Constructive
Ownership Limit" assume application of the applicable attribution rules of the
Code.
In order to ensure that rental income of Vornado will not be treated as
nonqualifying income under the rule described in the preceding paragraph, and
thus to ensure that Vornado will not inadvertently lose its REIT status as a
result of the ownership of shares by a tenant, or a person that holds an
interest in a tenant, the declaration of trust contains an ownership limit that
restricts, with some exceptions, shareholders from owning more than 9.9% of the
outstanding shares of any class. We refer to this 9.9% ownership limit as the
"constructive ownership limit." The shareholders who owned shares in excess of
the constructive ownership limit immediately after the merger of Vornado, Inc.
into Vornado in May 1993 generally are not subject to the constructive ownership
limit. The declaration of trust also contains restrictions that are designed to
ensure that the shareholders who owned shares in excess of the constructive
ownership limit immediately after the merger of Vornado, Inc. into Vornado in
May 1993 will not, in the aggregate, own a large enough interest in a tenant or
subtenant of the REIT to cause rental income received, directly or indirectly,
by the REIT from that tenant or subtenant to be treated as nonqualifying income
for purposes of the income requirements that REITs must satisfy. The
restrictions described in the preceding sentence have an exception for tenants
and subtenants from whom the REIT receives, directly or indirectly, rental
income that is not in excess of a specified threshold.
Shareholders should be aware that events other than a purchase or other
transfer of shares can result in ownership, under the applicable attribution
rules of the Internal Revenue Code, of shares in excess of the constructive
ownership limit. As the attribution rules that apply with respect to the
constructive ownership limit differ from those that apply with respect to the
common shares beneficial ownership limit, the events other than a purchase or
other transfer of shares which can result in share ownership in excess of the
constructive ownership limit can differ from those which can result in share
ownership in excess of the common shares beneficial ownership limit. You should
consult your own tax advisors concerning the application of the attribution
rules of the Code in your particular circumstances.
Issuance of Excess Shares If the Ownership Limits Are Violated. The
declaration of trust provides that a transfer of common shares that would
otherwise result in ownership, under the applicable attribution rules of the
Internal Revenue Code, of common shares in excess of the common shares
beneficial ownership limit or the constructive ownership limit, or which would
cause the shares of beneficial interest of Vornado to be beneficially owned by
fewer than 100 persons, will have no effect and the purported transferee will
acquire no rights or economic interest in the common shares. In addition, the
declaration of trust provides that common shares that would otherwise be owned,
under the applicable attribution rules of the Code, in excess of the common
shares beneficial ownership limit or the constructive ownership limit will be
automatically exchanged for excess shares. These excess shares will be
transferred, by operation of law, to Vornado as trustee of a trust for the
exclusive benefit of a beneficiary designated by the purported transferee or
purported holder. While so held in trust, excess shares are not entitled to vote
and are not entitled to participate in any dividends or distributions made by
Vornado. Any dividends or distributions received by the purported transferee or
other purported holder of the excess shares before Vornado discovers the
automatic exchange for excess shares must be repaid to Vornado upon demand.
If the purported transferee or purported holder elects to designate a
beneficiary of an interest in the trust with respect to the excess shares, he or
she may designate only a person whose ownership of the shares will not violate
the common shares beneficial ownership limit or the constructive ownership
limit. When the designation is made, the excess shares will be automatically
exchanged for common shares. The declaration of trust contains provisions
designed to ensure that the purported transferee or other purported holder of
the excess shares may not receive, in return for transferring an interest in the
trust with respect to the excess shares, an amount that reflects any
appreciation in the common shares for which the excess shares were exchanged
during the period that the excess shares were outstanding but will bear the
burden of any decline in value during that period. Any amount received by a
purported transferee or other purported holder for designating a beneficiary in
excess of the amount permitted to be received must be turned over to Vornado.
The declaration of trust provides that Vornado, or its designee, may purchase
any excess shares that have been
47
automatically exchanged for common shares as a result of a purported transfer or
other event. The price at which Vornado, or its designee, may purchase the
excess shares will be equal to the lesser of:
- in the case of excess shares resulting from a purported transfer for
value, the price per share in the purported transfer that resulted in the
automatic exchange for excess shares, or in the case of excess shares
resulting from some other event, the market price of the common shares
exchanged on the date of the automatic exchange for excess shares; and
- the market price of the common shares exchanged for the excess shares on
the date that Vornado accepts the deemed offer to sell the excess shares.
Vornado's right to buy the excess shares will exist for 90 days, beginning
on the date that the automatic exchange for excess shares occurred or, if
Vornado did not receive a notice concerning the purported transfer that resulted
in the automatic exchange for excess shares, the date that the board of trustees
determines in good faith that an exchange for excess shares has occurred.
Other Provisions Concerning the Restrictions on Ownership. Our board of
trustees may exempt persons from the common shares beneficial ownership limit or
the constructive ownership limit, including the limitations applicable to
holders who owned in excess of 6.7% of the common shares immediately after the
merger of Vornado, Inc. into Vornado in May 1993, if evidence satisfactory to
the board of trustees is presented showing that the exemption will not
jeopardize Vornado's status as a REIT under the Internal Revenue Code. No
exemption to a person that is an individual for purposes of Section 542(a)(2) of
the Internal Revenue Code, however, may permit the individual to have beneficial
ownership in excess of 9.9% of the outstanding shares of the class. Before
granting an exemption of this kind, the board of trustees may require a ruling
from the IRS and/or an opinion of counsel satisfactory to it and/or
representations and undertakings from the applicant with respect to preserving
the REIT status of Vornado.
The foregoing restrictions on transferability and ownership will not apply
if the board of trustees determines that it is no longer in the best interests
of Vornado to attempt to qualify, or to continue to qualify, as a REIT.
All persons who own, directly or by virtue of the applicable attribution
rules of the Internal Revenue Code, more than 2.0% of the outstanding common
shares must give a written notice to Vornado containing the information
specified in the declaration of trust by January 31 of each year. In addition,
each shareholder will be required to disclose to Vornado upon demand any
information that Vornado may request, in good faith, to determine Vornado's
status as a REIT or to comply with Treasury regulations promulgated under the
REIT provisions of the Code.
The ownership restrictions described above may have the effect of
precluding acquisition of control of Vornado unless the Vornado board determines
that maintenance of REIT status is no longer in the best interests of Vornado.
LEGAL OWNERSHIP AND BOOK-ENTRY ISSUANCE
In this section, we describe special considerations that will apply to
registered securities issued in global -- i.e., book-entry -- form. First we
describe the difference between legal ownership and indirect ownership of
registered securities. Then we describe special provisions that apply to global
securities.
WHO IS THE LEGAL OWNER OF A REGISTERED SECURITY?
Each debt security, common or preferred share and depositary share in
registered form will be represented either by a certificate issued in definitive
form to a particular investor or by one or more global securities representing
the entire issuance of securities. We refer to those who have securities
registered in their own names, on the books that we or the trustee or other
agent maintain for this purpose, as the "holders" of those securities. These
persons are the legal holders of the securities. We refer to those who,
indirectly through others, own beneficial interests in securities that are not
registered in their own names as indirect
48
owners of those securities. As we discuss below, indirect owners are not legal
holders, and investors in securities issued in book-entry form or in street name
will be indirect owners.
BOOK-ENTRY OWNERS
We expect to issue debt securities, preferred shares and depositary shares
in book-entry form only. However, we may issue common shares in book-entry form.
This means those securities will be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary's
book-entry system. These participating institutions, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Under each indenture or other applicable agreement, only the person in
whose name a security is registered is recognized as the holder of that
security. Consequently, for securities issued in global form, we will recognize
only the depositary as the holder of the securities and we will make all
payments on the securities, including deliveries of common or preferred shares
in exchange for exchangeable debt securities, to the depositary. The depositary
passes along the payments it receives to its participants, which in turn pass
the payments along to their customers who are the beneficial owners. The
depositary and its participants do so under agreements they have made with one
another or with their customers; they are not obligated to do so under the terms
of the securities.
As a result, investors will not own securities directly. Instead, they will
own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary's book-entry system or
holds an interest through a participant. As long as the securities are issued in
global form, investors will be indirect owners, and not holders, of the
securities.
STREET NAME OWNERS
In the future we may terminate a global security or issue securities
initially in non-global form. In these cases, investors may choose to hold their
securities in their own names or in street name. Securities held by an investor
in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she
maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities and we will make all payments
on those securities, including deliveries of common or preferred shares in
exchange for exchangeable debt securities, to them. These institutions pass
along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in
street name will be indirect owners, not holders, of those securities.
LEGAL HOLDERS
Our obligations, as well as the obligations of the trustee under either
indenture and the obligations, if any, of any other third parties employed by
us, the trustee or any agents, run only to the holders of the securities. We do
not have obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This will be the case
whether an investor chooses to be an indirect owner of a security or has no
choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for that payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect owners but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose -- e.g., to amend the
indenture for a series of debt securities or to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an
indenture -- we would seek the approval only from the holders, and not the
indirect owners, of the relevant securities. Whether and how the holders contact
the indirect owners is up to the holders.
49
When we refer to "you" in this section of the prospectus, we mean those who
invest in the securities being offered by this prospectus, whether they are the
holders or only indirect owners of those securities. When we refer to "your
securities" in this section of the prospectus, we mean the securities in which
you will hold a direct or indirect interest.
SPECIAL CONSIDERATIONS FOR INDIRECT OWNERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
- whether and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect their
interests; and
- if the securities are in book-entry form, how the depositary's rules and
procedures will affect these matters.
WHAT IS A GLOBAL SECURITY?
A global security is issued in book-entry form only. Each security issued
in book-entry form will be represented by a global security that we deposit with
and register in the name of one or more financial institutions or clearing
systems, or their nominees, which we select. A financial institution or clearing
system that we select for any security for this purpose is called the
"depositary" for that security. A security will usually have only one depositary
but it may have more.
Each series of these securities will have one or more of the following as
the depositaries:
- The Depository Trust Company, New York, New York, which is known as
"DTC";
- a financial institution holding the securities on behalf of Euroclear
Bank S.A./N.V., as operator of the Euroclear system, which is known as
"Euroclear";
- a financial institution holding the securities on behalf of Clearstream
Banking, societe anonyme, Luxembourg, which is known as "Clearstream";
and
- any other clearing system or financial institution named in the
applicable prospectus supplement.
The depositaries named above may also be participants in one another's
systems. Thus, for example, if DTC is the depositary for a global security,
investors may hold beneficial interests in that security through Euroclear or
Clearstream, as DTC participants. The depositary or depositaries for your
securities will be named in your prospectus supplement; if none is named, the
depositary will be DTC.
A global security may represent one or any other number of individual
securities. Generally, all securities represented by the same global security
will have the same terms. We may, however, issue a global security that
represents multiple securities of the same kind, such as debt securities, that
have different terms and are issued at different times. We call this kind of
global security a master global security. Your prospectus supplement will
indicate whether your securities are represented by a master global security.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "-- Holder's Option
to Obtain a Non-Global Security; Special Situations When a Global Security Will
Be Terminated". As a result of these arrangements, the depositary, or its
nominee, will be the sole registered owner and holder of all securities
represented by a global security, and investors will be permitted to own only
50
indirect interests in a global security. Indirect interests must be held by
means of an account with a broker, bank or other financial institution that in
turn has an account with the depositary or with another institution that does.
Thus, an investor whose security is represented by a global security will not be
a holder of the security, but only an indirect owner of an interest in the
global security.
If the prospectus supplement for a particular security indicates that the
security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. We describe the situations in which this can occur below
under "-- Holder's Option to Obtain a Non-Global Security; Special Situations
When a Global Security Will Be Terminated". If termination occurs, we may issue
the securities through another book-entry clearing system or decide that the
securities may no longer be held through any book-entry clearing system.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect owner, an investor's rights relating to a global security
will be governed by the account rules of the depositary and those of the
investor's financial institution or other intermediary through which it holds
its interest (e.g., Euroclear or Clearstream, if DTC is the depositary), as well
as general laws relating to securities transfers. We do not recognize this type
of investor or any intermediary as a holder of securities and instead deal only
with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- An investor cannot cause the securities to be registered in his or her
own name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we describe
below;
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe above under
"-- Who Is the Legal Owner of a Registered Security?";
- An investor may not be able to sell interests in the securities to some
insurance companies and other institutions that are required by law to
own their securities in non-book-entry form;
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
- The depositary's policies will govern payments, deliveries, transfers,
exchanges, notices and other matters relating to an investor's interest
in a global security, and those policies may change from time to time.
We, the trustee and any agents will have no responsibility for any aspect
of the depositary's policies, actions or records of ownership interests
in a global security. We, the trustee and any agents also do not
supervise the depositary in any way;
- The depositary will require that those who purchase and sell interests in
a global security within its book-entry system use immediately available
funds and your broker or bank may require you to do so as well; and
- Financial institutions that participate in the depositary's book-entry
system and through which an investor holds its interest in the global
securities, directly or indirectly, may also have their own policies
affecting payments, deliveries, transfers, exchanges, notices and other
matters relating to the securities, and those policies may change from
time to time. For example, if you hold an interest in a global security
through Euroclear or Clearstream, when DTC is the depositary, Euroclear
or Clearstream, as applicable, will require those who purchase and sell
interests in that security through them to use immediately available
funds and comply with other policies and procedures, including deadlines
for giving instructions as to transactions that are to be effected on a
particular day. There may be more than one financial intermediary in the
chain of ownership for an investor. We do not monitor and are not
responsible for the policies or actions or records of ownership interests
of any of those intermediaries.
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HOLDER'S OPTION TO OBTAIN A NON-GLOBAL SECURITY; SPECIAL SITUATIONS WHEN A
GLOBAL SECURITY WILL BE TERMINATED
If we issue any series of securities in book-entry form but we choose to
give the beneficial owners of that series the right to obtain non-global
securities, any beneficial owner entitled to obtain non-global securities may do
so by following the applicable procedures of the depositary, any transfer agent
or registrar for that series and that owner's bank, broker or other financial
institution through which that owner holds its beneficial interest in the
securities. For example, in the case of a global security representing preferred
shares or depositary shares, a beneficial owner will be entitled to obtain a
non-global security representing its interest by making a written request to the
transfer agent or other agent designated by us. If you are entitled to request a
non-global certificate and wish to do so, you will need to allow sufficient lead
time to enable us or our agent to prepare the requested certificate.
In addition, in a few special situations described below, a global security
will be terminated and interests in it will be exchanged for certificates in
non-global form representing the securities it represented. After that exchange,
the choice of whether to hold the securities directly or in street name will be
up to the investor. Investors must consult their own banks or brokers to find
out how to have their interests in a global security transferred on termination
to their own names, so that they will be holders. We have described the rights
of holders and street name investors above under "-- Who Is the Legal Owner of a
Registered Security?"
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling or unable to continue
as depositary for that global security or the depositary has ceased to be
a clearing agency registered under the Securities Exchange Act, and in
either case we do not appoint another institution to act as depositary
within 90 days;
- in the case of a global security representing debt securities, if an
event of default has occurred with regard to the debt securities and has
not been cured or waived; or
- any other circumstances specified for this purpose in the applicable
prospectus supplement.
If a global security is terminated, only the depositary, and not we or the
trustee for any debt securities, is responsible for deciding the names of the
institutions in whose names the securities represented by the global security
will be registered and, therefore, who will be the holders of those securities.
CONSIDERATIONS RELATING TO EUROCLEAR AND CLEARSTREAM
Euroclear and Clearstream are securities clearance systems in Europe. Both
systems clear and settle securities transactions between their participants
through electronic, book-entry delivery of securities against payment.
Euroclear and Clearstream may be depositaries for a global security. In
addition, if DTC is the depositary for a global security, Euroclear and
Clearstream may hold interests in the global security as participants in DTC.
As long as any global security is held by Euroclear or Clearstream, as
depositary, you may hold an interest in the global security only through an
organization that participates, directly or indirectly, in Euroclear or
Clearstream. If Euroclear or Clearstream is the depositary for a global security
and there is no depositary in the United States, you will not be able to hold
interests in that global security through any securities clearance system in the
United States.
Payments, deliveries, transfers, exchanges, notices and other matters
relating to the securities made through Euroclear or Clearstream must comply
with the rules and procedures of those systems. Those systems could change their
rules and procedures at any time. We have no control over those systems or their
participants and we take no responsibility for their activities. Transactions
between participants in Euroclear or Clearstream, on one hand, and participants
in DTC, on the other hand, when DTC is the depositary, would also be subject to
DTC's rules and procedures.
52
SPECIAL TIMING CONSIDERATIONS FOR TRANSACTIONS IN EUROCLEAR AND CLEARSTREAM
Investors will be able to make and receive through Euroclear and
Clearstream payments, deliveries, transfers, exchanges, notices and other
transactions involving any securities held through those systems only on days
when those systems are open for business. Those systems may not be open for
business on days when banks, brokers and other institutions are open for
business in the United States.
In addition, because of time-zone differences, U.S. investors who hold
their interests in the securities through these systems and wish to transfer
their interests, or to receive or make a payment or delivery or exercise any
other right with respect to their interests, on a particular day may find that
the transaction will not be effected until the next business day in Luxembourg
or Brussels, as applicable. Thus, investors who wish to exercise rights that
expire on a particular day may need to act before the expiration date. In
addition, investors who hold their interests through both DTC and Euroclear or
Clearstream may need to make special arrangements to finance any purchases or
sales of their interests between the U.S. and European clearing systems, and
those transactions may settle later than would be the case for transactions
within one clearing system.
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the taxation of Vornado Realty Trust
and the material Federal income tax consequences to holders of the common
shares, preferred shares and fixed rate debt securities that are not original
issue discount or zero coupon debt securities for your general information only.
It is not tax advice. The tax treatment of these holders will vary depending
upon the holder's particular situation, and this discussion addresses only
holders that hold these securities as capital assets and does not deal with all
aspects of taxation that may be relevant to particular holders in light of their
personal investment or tax circumstances. This section also does not deal with
all aspects of taxation that may be relevant to certain types of holders to
which special provisions of the Federal income tax laws apply, including:
- dealers in securities or currencies;
- traders in securities that elect to use a mark-to-market method of
accounting for their securities holdings;
- banks;
- tax-exempt organizations;
- certain insurance companies;
- persons liable for the alternative minimum tax;
- persons that hold securities that are a hedge, that are hedged against
interest rate or currency risks or that are part of a straddle or
conversion transaction; and
- U.S. shareholders or U.S. debt security holders whose functional currency
is not the U.S. dollar.
This summary is based on the Internal Revenue Code, its legislative
history, existing and proposed regulations under the Internal Revenue Code,
published rulings and court decisions. This summary describes the provisions of
these sources of law only as they are currently in effect. All of these sources
of law may change at any time, and any change in the law may apply
retroactively.
WE URGE YOU TO CONSULT WITH YOUR OWN TAX ADVISORS REGARDING THE TAX
CONSEQUENCES TO YOU OF ACQUIRING, OWNING AND SELLING COMMON SHARES, PREFERRED
SHARES AND FIXED RATE DEBT SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL AND
FOREIGN TAX CONSEQUENCES OF ACQUIRING, OWNING AND SELLING THESE SECURITIES IN
YOUR PARTICULAR CIRCUMSTANCES AND POTENTIAL CHANGES IN APPLICABLE LAWS.
53
TAXATION OF VORNADO REALTY TRUST AS A REIT
In the opinion of Sullivan & Cromwell LLP, commencing with its taxable year
ended December 31, 1993, Vornado Realty Trust has been organized and operated in
conformity with the requirements for qualification and taxation as a REIT under
the Internal Revenue Code, and Vornado Realty Trust's proposed method of
operation will enable it to continue to meet the requirements for qualification
and taxation as a REIT under the Internal Revenue Code. Investors should be
aware, however, that opinions of counsel are not binding upon the Internal
Revenue Service or any court.
In providing its opinion, Sullivan & Cromwell LLP is relying,
- as to certain factual matters upon the statements and representations
contained in certificates provided to Sullivan & Cromwell LLP by Vornado,
Two Penn Plaza, REIT, Inc. and AmeriCold Corporation;
- without independent investigation, as to certain factual matters upon the
statements and representations contained in the certificate provided to
Sullivan & Cromwell LLP by Alexander's; and
- without independent investigation, upon the opinion of Shearman &
Sterling LLP concerning the qualification of Alexander's as a REIT for
each taxable year commencing with its taxable year ended December 31,
1995.
In providing its opinion regarding the qualification of Alexander's as a
REIT for Federal income tax purposes, Shearman & Sterling LLP is relying, as to
certain factual matters, upon representations received from Alexander's.
Vornado's qualification as a REIT will depend upon the continuing
satisfaction by Vornado and, given Vornado's current ownership interest in
Alexander's, AmeriCold and Two Penn, by Alexander's, AmeriCold and Two Penn, of
the requirements of the Internal Revenue Code relating to qualification for REIT
status. Some of these requirements depend upon actual operating results,
distribution levels, diversity of stock ownership, asset composition, source of
income and record keeping. Accordingly, while Vornado intends to continue to
qualify to be taxed as a REIT, the actual results of Vornado's, Two Penn's,
AmeriCold's or Alexander's operations for any particular year might not satisfy
these requirements. Neither Sullivan & Cromwell LLP nor Shearman & Sterling LLP
will monitor the compliance of Vornado, Two Penn, AmeriCold or Alexander's with
the requirements for REIT qualification on an ongoing basis.
The sections of the Internal Revenue Code applicable to REITs are highly
technical and complex. The following discussion summarizes material aspects of
these sections of the Internal Revenue Code.
As a REIT, Vornado generally will not have to pay Federal corporate income
taxes on its net income that it currently distributes to shareholders. This
treatment substantially eliminates the "double taxation" at the corporate and
shareholder levels that generally results from investment in a regular
corporation.
However, Vornado will have to pay Federal income tax as follows:
- First, Vornado will have to pay tax at regular corporate rates on any
undistributed real estate investment trust taxable income, including
undistributed net capital gains.
- Second, under certain circumstances, Vornado may have to pay the
alternative minimum tax on its items of tax preference.
- Third, if Vornado has (a) net income from the sale or other disposition
of "foreclosure property", as defined in the Internal Revenue Code, which
is held primarily for sale to customers in the ordinary course of
business or (b) other non-qualifying income from foreclosure property, it
will have to pay tax at the highest corporate rate on that income.
- Fourth, if Vornado has net income from "prohibited transactions", as
defined in the Internal Revenue Code, Vornado will have to pay a 100% tax
on that income. Prohibited transactions are, in general, certain sales or
other dispositions of property, other than foreclosure property, held
primarily for sale to customers in the ordinary course of business.
54
- Fifth, if Vornado should fail to satisfy the 75% gross income test or the
95% gross income test, as discussed below under "-- Requirements for
Qualification -- Income Tests", but has nonetheless maintained its
qualification as a REIT because Vornado has satisfied some other
requirements, it will have to pay a 100% tax on an amount equal to (a)
the gross income attributable to the greater of (i) 75% of Vornado's
gross income over the amount of gross income that is qualifying income
for purposes of the 75% test, and (ii) 90% of Vornado's gross income (95%
for taxable years ending before January 1, 2001) over the amount of gross
income that is qualifying income for purposes of the 95% test, multiplied
by (b) a fraction intended to reflect Vornado's profitability.
- Sixth, if Vornado should fail to distribute during each calendar year at
least the sum of (1) 85% of its real estate investment trust ordinary
income for that year, (2) 95% of its real estate investment trust capital
gain net income for that year and (3) any undistributed taxable income
from prior periods, Vornado would have to pay a 4% excise tax on the
excess of that required distribution over the amounts actually
distributed.
- Seventh, if during the 10-year period beginning on the first day of the
first taxable year for which Vornado qualified as a REIT, Vornado
recognizes gain on the disposition of any asset held by Vornado as of the
beginning of that period, then, to the extent of the excess of (a) fair
market value of that asset as of the beginning of that period over (b)
Vornado's adjusted basis in that asset as of the beginning of that
period, Vornado will have to pay tax on that gain at the highest regular
corporate rate. We refer to the excess of fair market value over adjusted
basis described in the preceding sentence as "built-in gain".
Notwithstanding the taxation of built-in gain described in the preceding
paragraph of this bullet point, Vornado will not have to pay tax on
recognized built-in gain with respect to assets held as of the first day
of the 10-year period beginning on the first day of the first taxable
year for which Vornado qualified as a REIT, to the extent that the
aggregate amount of that recognized built-in gain exceeds the net
aggregate amount of Vornado's unrealized built-in gain as of the first
day of that period.
- Eighth, if Vornado acquires any asset from a C corporation in certain
transactions in which Vornado must adopt the basis of the asset or any
other property in the hands of the C corporation as the basis of the
asset in the hands of Vornado, and Vornado recognizes gain on the
disposition of that asset during the 10-year period beginning on the date
on which Vornado acquired that asset, then Vornado will have to pay tax
on the built-in gain at the highest regular corporate rate. A C
corporation means generally a corporation that has to pay full
corporate-level tax.
- Ninth, for taxable years beginning after December 31, 2000, if Vornado
receives non-arm's length income from a taxable REIT subsidiary (as
defined under "-- Requirements for Qualification -- Asset Tests"), or as
a result of services provided by a taxable REIT subsidiary to tenants of
Vornado, Vornado will be subject to a 100% tax on the amount of Vornado's
non-arm's length income.
REQUIREMENTS FOR QUALIFICATION
The Internal Revenue Code defines a REIT as a corporation, trust or
association
- which is managed by one or more trustees or directors;
- the beneficial ownership of which is evidenced by transferable shares, or
by transferable certificates of beneficial interest;
- which would otherwise be taxable as a domestic corporation, but for
Sections 856 through 859 of the Internal Revenue Code;
- which is neither a financial institution nor an insurance company to
which certain provisions of the Internal Revenue Code apply;
- the beneficial ownership of which is held by 100 or more persons;
55
- during the last half of each taxable year, not more than 50% in value of
the outstanding stock of which is owned, directly or constructively, by
five or fewer individuals, as defined in the Internal Revenue Code to
include certain entities; and
- which meets certain other tests, described below, regarding the nature of
its income and assets.
The Internal Revenue Code provides that the conditions described in the
first through fourth bullet points above must be met during the entire taxable
year and that the condition described in the fifth bullet point above must be
met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months.
Vornado has satisfied the conditions described in the first through fifth
bullet points of the preceding paragraph and believes that it has also satisfied
the condition described in the sixth bullet point of the preceding paragraph. In
addition, Vornado's declaration of trust provides for restrictions regarding the
ownership and transfer of Vornado's shares of beneficial interest. These
restrictions are intended to assist Vornado in continuing to satisfy the share
ownership requirements described in the fifth and sixth bullet points of the
preceding paragraph. The ownership and transfer restrictions pertaining to the
common shares are described in this prospectus under the heading "Description of
Common Shares -- Restrictions on Ownership of Common Shares."
Vornado owns a number of wholly-owned corporate subsidiaries. Internal
Revenue Code Section 856(i) provides that unless a REIT makes an election to
treat the corporation as a taxable REIT subsidiary, a corporation which is a
"qualified REIT subsidiary", as defined in the Internal Revenue Code, will not
be treated as a separate corporation, and all assets, liabilities and items of
income, deduction and credit of a qualified REIT subsidiary will be treated as
assets, liabilities and items of these kinds of the REIT. Thus, in applying the
requirements described in this section, Vornado's qualified REIT subsidiaries
will be ignored, and all assets, liabilities and items of income, deduction and
credit of these subsidiaries will be treated as assets, liabilities and items of
these kinds of Vornado. Vornado believes that all of its wholly-owned corporate
subsidiaries are qualified REIT subsidiaries.
If a REIT is a partner in a partnership, Treasury regulations provide that
the REIT will be deemed to own its proportionate share of the assets of the
partnership and will be deemed to be entitled to the income of the partnership
attributable to that share. In addition, the character of the assets and gross
income of the partnership will retain the same character in the hands of the
REIT for purposes of Section 856 of the Internal Revenue Code, including
satisfying the gross income tests and the asset tests. Thus, Vornado's
proportionate share of the assets, liabilities and items of income of any
partnership in which Vornado is a partner, including the operating partnership,
will be treated as assets, liabilities and items of income of Vornado for
purposes of applying the requirements described in this section. Thus, actions
taken by partnerships in which Vornado owns an interest, either directly or
through one or more tiers of partnerships or qualified REIT subsidiaries, can
affect Vornado's ability to satisfy the REIT income and assets tests and the
determination of whether Vornado has net income from prohibited transactions.
See the fourth bullet point on page 64 for a discussion of prohibited
transactions.
Income Tests. In order to maintain its qualification as a REIT, Vornado
annually must satisfy three gross income requirements.
- First, Vornado must derive at least 75% of its gross income, excluding
gross income from prohibited transactions, for each taxable year directly
or indirectly from investments relating to real property or mortgages on
real property, including "rents from real property", as defined in the
Internal Revenue Code, or from certain types of temporary investments.
Rents from real property generally include expenses of Vornado that are
paid or reimbursed by tenants.
- Second, at least 95% of Vornado's gross income, excluding gross income
from prohibited transactions, for each taxable year must be derived from
real property investments as described in the preceding bullet point,
dividends, interest and gain from the sale or disposition of stock or
securities, or from any combination of these types of source.
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- Third, for its taxable years before 1998, short-term gain from the sale
or other disposition of stock or securities, gain from prohibited
transactions and gain on the sale or other disposition of real property
held for less than four years, apart from involuntary conversions and
sales of foreclosure property, was required to represent less than 30% of
Vornado's gross income, including gross income from prohibited
transactions, for each of these taxable years.
Rents that Vornado receives will qualify as rents from real property in
satisfying the gross income requirements for a REIT described above only if the
rents satisfy several conditions.
- First, the amount of rent must not be based in whole or in part on the
income or profits of any person. However, an amount received or accrued
generally will not be excluded from rents from real property solely
because it is based on a fixed percentage or percentages of receipts or
sales.
- Second, the Internal Revenue Code provides that rents received from a
tenant will not qualify as rents from real property in satisfying the
gross income tests if the REIT, directly or under the applicable
attribution rules, owns a 10% or greater interest in that tenant; except
that for tax years beginning after December 31, 2000, rents received from
a taxable REIT subsidiary under certain circumstances qualify as rents
from real property even if Vornado owns more than a 10% interest in the
subsidiary. We refer to a tenant in which Vornado owns a 10% or greater
interest as a "related party tenant."
- Third, if rent attributable to personal property leased in connection
with a lease of real property is greater than 15% of the total rent
received under the lease, then the portion of rent attributable to the
personal property will not qualify as rents from real property.
- Finally, for rents received to qualify as rents from real property, the
REIT generally must not operate or manage the property or furnish or
render services to the tenants of the property, other than through an
independent contractor from whom the REIT derives no revenue or through a
taxable REIT subsidiary. However, Vornado may directly perform certain
services that landlords usually or customarily render when renting space
for occupancy only or that are not considered rendered to the occupant of
the property.
Vornado does not derive significant rents from related party tenants.
Vornado also does not and will not derive rental income attributable to personal
property, other than personal property leased in connection with the lease of
real property, the amount of which is less than 15% of the total rent received
under the lease.
Vornado directly performs services for some of its tenants. Vornado does
not believe that the provision of these services will cause its gross income
attributable to these tenants to fail to be treated as rents from real property.
If Vornado were to provide services to a tenant that are other than those
landlords usually or customarily provide when renting space for occupancy only,
amounts received or accrued by Vornado for any of these services will not be
treated as rents from real property for purposes of the REIT gross income tests.
However, the amounts received or accrued for these services will not cause other
amounts received with respect to the property to fail to be treated as rents
from real property unless the amounts treated as received in respect of the
services, together with amounts received for certain management services, exceed
1% of all amounts received or accrued by Vornado during the taxable year with
respect to the property. If the sum of the amounts received in respect of the
services to tenants and management services described in the preceding sentence
exceeds the 1% threshold, then all amounts received or accrued by Vornado with
respect to the property will not qualify as rents from real property, even if
Vornado provides the impermissible services to some, but not all, of the tenants
of the property.
The term "interest" generally does not include any amount received or
accrued, directly or indirectly, if the determination of that amount depends in
whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term interest solely
because it is based on a fixed percentage or percentages of receipts or sales.
If Vornado fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for that year
if it satisfies the requirements of other provisions of the Internal
57
Revenue Code that allow relief from disqualification as a REIT. These relief
provisions will generally be available if:
- Vornado's failure to meet the income tests was due to reasonable cause
and not due to willful neglect;
- Vornado attaches a schedule of the sources of its income to its Federal
income tax return; and
- any incorrect information on the schedule was not due to fraud with
intent to evade tax.
Vornado might not be entitled to the benefit of these relief provisions,
however. As discussed in the fifth bullet point on page 65, even if these relief
provisions apply, Vornado would have to pay a tax on the excess income.
Asset Tests. Vornado, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets.
- First, at least 75% of the value of Vornado's total assets must be
represented by real estate assets, including (a) real estate assets held
by Vornado's qualified REIT subsidiaries, Vornado's allocable share of
real estate assets held by partnerships in which Vornado owns an interest
and stock issued by another REIT, (b) for a period of one year from the
date of Vornado's receipt of proceeds of an offering of its shares of
beneficial interest or publicly offered debt with a term of at least five
years, stock or debt instruments purchased with these proceeds and (c)
cash, cash items and government securities.
- Second, not more than 25% of Vornado's total assets may be represented by
securities other than those in the 75% asset class.
- Third, for taxable years beginning after December 31, 2000, not more than
20% of Vornado's total assets may constitute securities issued by taxable
REIT subsidiaries and of the investments included in the 25% asset class,
the value of any one issuer's securities, other than securities issued by
another REIT or by a taxable REIT subsidiary, owned by Vornado may not
exceed 5% of the value of Vornado's total assets. Moreover, Vornado may
not own more than 10% of the vote or value of the outstanding securities
of any one issuer, except for issuers that are REITs, qualified REIT
subsidiaries or taxable REIT subsidiaries, or debt instruments that are
considered straight debt under a safe harbor provision of the Internal
Revenue Code. For these purposes, a taxable REIT subsidiary is any
corporation in which Vornado owns an interest that joins with Vornado in
making an election to be treated as a "taxable REIT subsidiary" and
certain subsidiaries of a taxable REIT subsidiary, if the subsidiaries do
not engage in certain activities.
- Fourth, of the investments included in the 25% asset class, the value of
any one issuer's securities, other than securities issued by another
REIT, owned by Vornado may not exceed 5% of the value of Vornado's total
assets and Vornado may not own more than 10% of any one issuer's
outstanding voting securities.
The test described in the fourth bullet point above, and not that described
in the third bullet point, will continue to apply for taxable years of Vornado
that begin after December 31, 2000, only with respect to stock in any
corporation owned by Vornado before July 12, 1999, so long as a taxable REIT
subsidiary election is not made with respect to the corporation and the
corporation does not acquire substantial new assets or engage in a substantial
new line of business and certain other conditions are satisfied.
Since March 2, 1995, Vornado has owned more than 10% of the voting
securities of Alexander's. Since April of 1997, Vornado's ownership of
Alexander's has been through the operating partnership rather than direct.
Vornado's ownership interest in Alexander's will not cause Vornado to fail to
satisfy the asset tests for REIT status so long as Alexander's qualified as a
REIT for each of the taxable years beginning with its taxable year ended
December 31, 1995 and continues to so qualify. In the opinion of Shearman &
Sterling LLP, commencing with Alexander's taxable year ended December 31, 1995,
Alexander's has been organized and operated in conformity with the requirements
for qualification and taxation as a REIT under the Internal Revenue Code, and
its proposed method of operation will enable it to continue to meet the
requirements for
58
qualification and taxation as a REIT under the Internal Revenue Code. In
providing its opinion, Shearman & Sterling LLP is relying upon representations
received from Alexander's.
Since April of 1997, Vornado has also owned, through the operating
partnership, more than 10% of the voting securities of Two Penn. Vornado's
indirect ownership interest in Two Penn will not cause Vornado to fail to
satisfy the asset tests for REIT status so long as Two Penn qualifies as a REIT
for its first taxable year and each subsequent taxable year. Vornado believes
that Two Penn will also qualify as a REIT.
Annual Distribution Requirements. Vornado, in order to qualify as a REIT,
is required to distribute dividends, other than capital gain dividends, to its
shareholders in an amount at least equal to (1) the sum of (a) 90% of Vornado's
"real estate investment trust taxable income", computed without regard to the
dividends paid deduction and Vornado's net capital gain, and (b) 90% of the net
after-tax income, if any, from foreclosure property minus (2) the sum of certain
items of non-cash income.
For taxable years beginning before January 1, 2001, the required amount of
distributions described above and below was 95% of the amount of Vornado's
income or gain, as the case may be.
In addition, if Vornado disposes of any asset within 10 years of acquiring
it, Vornado will be required to distribute at least 90% of the after-tax
built-in gain, if any, recognized on the disposition of the asset.
These distributions must be paid in the taxable year to which they relate,
or in the following taxable year if declared before Vornado timely files its tax
return for the year to which they relate and if paid on or before the first
regular dividend payment after the declaration.
To the extent that Vornado does not distribute all of its net capital gain
or distributes at least 90%, but less than 100%, of its real estate investment
trust taxable income, as adjusted, it will have to pay tax on those amounts at
regular ordinary and capital gain corporate tax rates. Furthermore, if Vornado
fails to distribute during each calendar year at least the sum of (a) 85% of its
ordinary income for that year, (b) 95% of its capital gain net income for that
year and (c) any undistributed taxable income from prior periods, Vornado would
have to pay a 4% excise tax on the excess of the required distribution over the
amounts actually distributed.
Vornado intends to satisfy the annual distribution requirements.
From time to time, Vornado may not have sufficient cash or other liquid
assets to meet the 90% distribution requirement due to timing differences
between (a) when Vornado actually receives income and when it actually pays
deductible expenses and (b) when Vornado includes the income and deducts the
expenses in arriving at its taxable income. If timing differences of this kind
occur, in order to meet the 90% distribution requirement, Vornado may find it
necessary to arrange for short-term, or possibly long-term, borrowings or to pay
dividends in the form of taxable stock dividends.
Under certain circumstances, Vornado may be able to rectify a failure to
meet the distribution requirement for a year by paying "deficiency dividends" to
shareholders in a later year, which may be included in Vornado's deduction for
dividends paid for the earlier year. Thus, Vornado may be able to avoid being
taxed on amounts distributed as deficiency dividends; however, Vornado will be
required to pay interest based upon the amount of any deduction taken for
deficiency dividends.
FAILURE TO QUALIFY AS A REIT
If Vornado fails to qualify for taxation as a REIT in any taxable year, and
the relief provisions do not apply, Vornado will have to pay tax, including any
applicable alternative minimum tax, on its taxable income at regular corporate
rates. Vornado will not be able to deduct distributions to shareholders in any
year in which it fails to qualify, nor will Vornado be required to make
distributions to shareholders. In this event, to the extent of current and
accumulated earnings and profits, all distributions to shareholders will be
taxable to the shareholders as dividend income (which may be subject to tax at
preferential rates) and corporate distributees may be eligible for the dividends
received deduction if they satisfy the relevant provisions of the Internal
Revenue Code. Unless entitled to relief under specific statutory provisions,
Vornado will also be disqualified
59
from taxation as a REIT for the four taxable years following the year during
which qualification was lost. Vornado might not be entitled to the statutory
relief described in this paragraph in all circumstances.
TAXATION OF HOLDERS OF COMMON SHARES OR PREFERRED SHARES
U.S. SHAREHOLDERS
As used in this section, the term "U.S. shareholder" means a holder of
common shares or preferred shares who, for United States Federal income tax
purposes, is
- a citizen or resident of the United States;
- a domestic corporation;
- an estate whose income is subject to United States Federal income
taxation regardless of its source; or
- a trust if a United States court can exercise primary supervision over
the trust's administration and one or more United States persons have
authority to control all substantial decisions of the trust.
As long as Vornado qualifies as a REIT, distributions made by Vornado out
of its current or accumulated earnings and profits, and not designated as
capital gain dividends, will constitute dividends taxable to its taxable U.S.
shareholders as ordinary income. Under recently enacted law, individual U.S.
shareholders will be entitled to the new lower rate on dividends only for the
portion of any distribution equal to Vornado's real estate investment trust
taxable income (taking into account the dividends paid deduction available to
Vornado) and realized built-in gains from Vornado's previous taxable year less
any taxes paid by Vornado on these items during Vornado's previous taxable year.
Individual U.S. shareholders should consult their own tax advisors to determine
the impact of this new legislation. Distributions of this kind will not be
eligible for the dividends received deduction in the case of U.S. shareholders
that are corporations. Distributions made by Vornado that Vornado properly
designates as capital gain dividends will be taxable to U.S. shareholders as
gain from the sale of a capital asset held for more than one year, to the extent
that they do not exceed Vornado's actual net capital gain for the taxable year,
without regard to the period for which a U.S. shareholder has held his shares.
Thus, with certain limitations, capital gain dividends received by an individual
U.S. shareholder may be eligible for preferential rates of taxation. U.S.
shareholders that are corporations may, however, be required to treat up to 20%
of certain capital gain dividends as ordinary income.
To the extent that Vornado makes distributions, not designated as capital
gain dividends, in excess of its current and accumulated earnings and profits,
these distributions will be treated first as a tax-free return of capital to
each U.S. shareholder. Thus, these distributions will reduce the adjusted basis
which the U.S. shareholder has in his shares for tax purposes by the amount of
the distribution, but not below zero. Distributions in excess of a U.S.
shareholder's adjusted basis in his shares will be taxable as capital gains,
provided that the shares have been held as a capital asset. For purposes of
determining the portion of distributions on separate classes of shares that will
be treated as dividends for Federal income tax purposes, current and accumulated
earnings and profits will be allocated to distributions resulting from priority
rights of preferred shares before being allocated to other distributions.
Dividends authorized by Vornado in October, November, or December of any
year and payable to a shareholder of record on a specified date in any of these
months will be treated as both paid by Vornado and received by the shareholder
on December 31 of that year, provided that Vornado actually pays the dividend on
or before January 31 of the following calendar year. Shareholders may not
include in their own income tax returns any net operating losses or capital
losses of Vornado.
U.S. shareholders holding shares at the close of Vornado's taxable year
will be required to include, in computing their long-term capital gains for the
taxable year in which the last day of Vornado's taxable year falls, the amount
that Vornado designates in a written notice mailed to its shareholders. Vornado
may not designate amounts in excess of Vornado's undistributed net capital gain
for the taxable year. Each U.S. shareholder required to include the designated
amount in determining the shareholder's long-term capital gains will be deemed
to have paid, in the taxable year of the inclusion, the tax paid by Vornado in
respect of the undistributed net capital gains. U.S. shareholders to whom these
rules apply will be allowed a credit or a
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refund, as the case may be, for the tax they are deemed to have paid. U.S.
shareholders will increase their basis in their shares by the difference between
the amount of the includible gains and the tax deemed paid by the shareholder in
respect of these gains.
Distributions made by Vornado and gain arising from a U.S. shareholder's
sale or exchange of shares will not be treated as passive activity income. As a
result, U.S. shareholders generally will not be able to apply any passive losses
against that income or gain.
When a U.S. shareholder sells or otherwise disposes of shares, the
shareholder will recognize gain or loss for Federal income tax purposes in an
amount equal to the difference between (a) the amount of cash and the fair
market value of any property received on the sale or other disposition, and (b)
the holder's adjusted basis in the shares for tax purposes. This gain or loss
will be capital gain or loss if the U.S. shareholder has held the shares as a
capital asset. The gain or loss will be long-term gain or loss if the U.S.
shareholder has held the shares for more than one year. Long-term capital gain
of an individual U.S. shareholder is generally taxed at preferential rates. In
general, any loss recognized by a U.S. shareholder when the shareholder sells or
otherwise disposes of shares of Vornado that the shareholder has held for six
months or less, after applying certain holding period rules, will be treated as
a long-term capital loss, to the extent of distributions received by the
shareholder from Vornado which were required to be treated as long-term capital
gains.
Backup Withholding. Vornado will report to its U.S. shareholders and the
IRS the amount of dividends paid during each calendar year, and the amount of
tax withheld, if any. Under the backup withholding rules, backup withholding may
apply to a shareholder with respect to dividends paid unless the holder (a) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or (b) provides a taxpayer identification number,
certifies as to no loss of exemption from backup withholding, and otherwise
complies with applicable requirements of the backup withholding rules. The IRS
may also impose penalties on a U.S. shareholder that does not provide Vornado
with his correct taxpayer identification number. A shareholder may credit any
amount paid as backup withholding against the shareholder's income tax
liability. In addition, Vornado may be required to withhold a portion of capital
gain distributions to any shareholders who fail to certify their non-foreign
status to Vornado.
Taxation of Tax-Exempt Shareholders. The IRS has ruled that amounts
distributed as dividends by a REIT generally do not constitute unrelated
business taxable income when received by a tax-exempt entity. Based on that
ruling, provided that a tax-exempt shareholder is not one of the types of entity
described in the next paragraph and has not held its shares as "debt financed
property" within the meaning of the Internal Revenue Code, and the shares are
not otherwise used in a trade or business, the dividend income from shares will
not be unrelated business taxable income to a tax-exempt shareholder. Similarly,
income from the sale of shares will not constitute unrelated business taxable
income unless the tax-exempt shareholder has held the shares as "debt financed
property" within the meaning of the Internal Revenue Code or has used the shares
in a trade or business.
Income from an investment in Vornado's shares will constitute unrelated
business taxable income for tax-exempt shareholders that are social clubs,
voluntary employee benefit associations, supplemental unemployment benefit
trusts, and qualified group legal services plans exempt from Federal income
taxation under the applicable subsections of Section 501(c) of the Internal
Revenue Code, unless the organization is able to properly deduct amounts set
aside or placed in reserve for certain purposes so as to offset the income
generated by its shares. Prospective investors of the types described in the
preceding sentence should consult their own tax advisors concerning these "set
aside" and reserve requirements.
Notwithstanding the foregoing, however, a portion of the dividends paid by
a "pension-held REIT" will be treated as unrelated business taxable income to
any trust which
- is described in Section 401(a) of the Internal Revenue Code;
- is tax-exempt under Section 501(a) of the Internal Revenue Code; and
- holds more than 10% (by value) of the equity interests in the REIT.
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Tax-exempt pension, profit-sharing and stock bonus funds that are described
in Section 401(a) of the Internal Revenue Code are referred to below as
"qualified trusts." A REIT is a "pension-held REIT" if:
- it would not have qualified as a REIT but for the fact that Section
856(h)(3) of the Internal Revenue Code provides that stock owned by
qualified trusts will be treated, for purposes of the "not closely held"
requirement, as owned by the beneficiaries of the trust (rather than by
the trust itself); and
- either (a) at least one qualified trust holds more than 25% by value of
the interests in the REIT or (b) one or more qualified trusts, each of
which owns more than 10% by value of the interests in the REIT, hold in
the aggregate more than 50% by value of the interests in the REIT.
The percentage of any REIT dividend treated as unrelated business taxable
income to a qualifying trust is equal to the ratio of (a) the gross income of
the REIT from unrelated trades or businesses, determined as though the REIT were
a qualified trust, less direct expenses related to this gross income, to (b) the
total gross income of the REIT, less direct expenses related to the total gross
income. A de minimis exception applies where this percentage is less than 5% for
any year. Vornado does not expect to be classified as a pension-held REIT.
The rules described above under the heading "U.S. shareholders" concerning
the inclusion of Vornado's designated undistributed net capital gains in the
income of its shareholders will apply to tax-exempt entities. Thus, tax-exempt
entities will be allowed a credit or refund of the tax deemed paid by these
entities in respect of the includible gains.
NON-U.S. SHAREHOLDERS
The rules governing U.S. Federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships and estates or trusts
that in either case are not subject to United States Federal income tax on a net
income basis who own common shares or preferred shares, which we call "non-U.S.
shareholders", are complex. The following discussion is only a limited summary
of these rules. Prospective non-U.S. shareholders should consult with their own
tax advisors to determine the impact of U.S. Federal, state and local income tax
laws with regard to an investment in common shares or preferred shares,
including any reporting requirements.
Ordinary Dividends. Distributions, other than distributions that are
treated as attributable to gain from sales or exchanges by Vornado of U.S. real
property interests, as discussed below, and other than distributions designated
by Vornado as capital gain dividends, will be treated as ordinary income to the
extent that they are made out of current or accumulated earnings and profits of
Vornado. A withholding tax equal to 30% of the gross amount of the distribution
will ordinarily apply to distributions of this kind to non-U.S. shareholders,
unless an applicable tax treaty reduces that tax. However, if income from the
investment in the shares is treated as effectively connected with the non-U.S.
shareholder's conduct of a U.S. trade or business or is attributable to a
permanent establishment that the non-U.S. shareholder maintains in the United
States if that is required by an applicable income tax treaty as a condition for
subjecting the non-U.S. shareholder to U.S. taxation on a net income basis, tax
at graduated rates will generally apply to the non-U.S. shareholder in the same
manner as U.S. shareholders are taxed with respect to dividends, and the 30%
branch profits tax may also apply if the shareholder is a foreign corporation.
Vornado expects to withhold U.S. tax at the rate of 30% on the gross amount of
any dividends, other than dividends treated as attributable to gain from sales
or exchanges of U.S. real property interests and capital gain dividends, paid to
a non-U.S. shareholder, unless (a) a lower treaty rate applies and the required
form evidencing eligibility for that reduced rate is filed with Vornado or the
appropriate withholding agent or (b) the non-U.S. shareholder files an IRS Form
W-8 ECI or a successor form with Vornado or the appropriate withholding agent
claiming that the distributions are effectively connected with the non-U.S.
shareholder's conduct of a U.S. trade or business.
Distributions to a non-U.S. shareholder that are designated by Vornado at
the time of distribution as capital gain dividends which are not attributable to
or treated as attributable to the disposition by Vornado of a U.S. real property
interest generally will not be subject to U.S. Federal income taxation, except
as described below.
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Return of Capital. Distributions in excess of Vornado's current and
accumulated earnings and profits, which are not treated as attributable to the
gain from Vornado's disposition of a U.S. real property interest, will not be
taxable to a non-U.S. shareholder to the extent that they do not exceed the
adjusted basis of the non-U.S. shareholder's shares. Distributions of this kind
will instead reduce the adjusted basis of the shares. To the extent that
distributions of this kind exceed the adjusted basis of a non-U.S. shareholder's
shares, they will give rise to tax liability if the non-U.S. shareholder
otherwise would have to pay tax on any gain from the sale or disposition of its
shares, as described below. If it cannot be determined at the time a
distribution is made whether the distribution will be in excess of current and
accumulated earnings and profits, withholding will apply to the distribution at
the rate applicable to dividends. However, the non-U.S. shareholder may seek a
refund of these amounts from the IRS if it is subsequently determined that the
distribution was, in fact, in excess of current accumulated earnings and profits
of Vornado.
Capital Gain Dividends. For any year in which Vornado qualifies as a REIT,
distributions that are attributable to gain from sales or exchanges by Vornado
of U.S. real property interests will be taxed to a non-U.S. shareholder under
the provisions of the Foreign Investment in Real Property Tax Act of 1980, as
amended. Under this statute, these distributions are taxed to a non-U.S.
shareholder as if the gain were effectively connected with a U.S. business.
Thus, non-U.S. shareholders will be taxed on the distributions at the normal
capital gain rates applicable to U.S. shareholders, subject to any applicable
alternative minimum tax and special alternative minimum tax in the case of
individuals. Vornado is required by applicable Treasury regulations under this
statute to withhold 35% of any distribution that Vornado could designate as a
capital gain dividend. However, if Vornado designates as a capital gain dividend
a distribution made before the day Vornado actually effects the designation,
then although the distribution may be taxable to a non-U.S. shareholder,
withholding does not apply to the distribution under this statute. Rather,
Vornado must effect the 35% withholding from distributions made on and after the
date of the designation, until the distributions so withheld equal the amount of
the prior distribution designated as a capital gain dividend. The non-U.S.
shareholder may credit the amount withheld against its U.S. tax liability.
Sales of Shares. Gain recognized by a non-U.S. shareholder upon a sale or
exchange of common shares generally will not be taxed under the Foreign
Investment in Real Property Tax Act if Vornado is a "domestically controlled
REIT", defined generally as a REIT, less than 50% in value of whose stock is and
was held directly or indirectly by foreign persons at all times during a
specified testing period. Vornado believes that it is and will continue to be a
domestically controlled REIT, and, therefore, that taxation under this statute
generally will not apply to the sale of Vornado shares. However, gain to which
this statute does not apply will be taxable to a non-U.S. shareholder if
investment in the shares is treated as effectively connected with the non-U.S.
shareholder's U.S. trade or business or is attributable to a permanent
establishment that the non-U.S. shareholder maintains in the United States if
that is required by an applicable income tax treaty as a condition for
subjecting the non-U.S. shareholder to U.S. taxation on a net income basis. In
this case, the same treatment will apply to the non-U.S. shareholder as to U.S.
shareholders with respect to the gain. In addition, gain to which the Foreign
Investment in Real Property Tax Act does not apply will be taxable to a non-U.S.
shareholder if the non-U.S. shareholder is a nonresident alien individual who
was present in the United States for 183 days or more during the taxable year
and has a "tax home" in the United States, or maintains an office or a fixed
place of business in the United States to which the gain is attributable. In
this case, a 30% tax will apply to the nonresident alien individual's capital
gains. A similar rule will apply to capital gain dividends to which this statute
does not apply.
If Vornado were not a domestically controlled REIT, tax under the Foreign
Investment in Real Property Tax Act would apply to a non-U.S. shareholder's sale
of shares only if the selling non-U.S. shareholder owned more than 5% of the
class of shares sold at any time during a specified period. This period is
generally the shorter of the period that the non-U.S. shareholder owned the
shares sold or the five-year period ending on the date when the shareholder
disposed of the shares. If tax under this statute applies to the gain on the
sale of shares, the same treatment would apply to the non-U.S. shareholder as to
U.S. shareholders with respect to the gain, subject to any applicable
alternative minimum tax and a special alternative minimum tax in the case of
nonresident alien individuals.
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FEDERAL ESTATE TAXES
Common shares or preferred shares held by a non-U.S. shareholder at the
time of death will be included in the shareholder's gross estate for United
States federal estate tax purposes, unless an applicable estate tax treaty
provides otherwise.
BACKUP WITHHOLDING AND INFORMATION REPORTING
If you are a non-U.S. shareholder, you are generally exempt from backup
withholding and information reporting requirements with respect to:
- dividend payments and
- the payment of the proceeds from the sale of common shares effected at a
United States office of a broker,
as long as the income associated with these payments is otherwise exempt
from United States federal income tax, and:
- the payor or broker does not have actual knowledge or reason to know that
you are a United States person and you have furnished to the payor or
broker:
- a valid Internal Revenue Service Form W-8BEN or an acceptable substitute
form upon which you certify, under penalties of perjury, that you are a
non-United States person, or
- other documentation upon which it may rely to treat the payments as made
to a non-United States person in accordance with U.S. Treasury
regulations, or
- you otherwise establish an exemption.
Payment of the proceeds from the sale of common shares effected at a
foreign office of a broker generally will not be subject to information
reporting or backup withholding. However, a sale of common shares or preferred
shares that is effected at a foreign office of a broker will be subject to
information reporting and backup withholding if:
- the proceeds are transferred to an account maintained by you in the
United States,
- the payment of proceeds or the confirmation of the sale is mailed to you
at a United States address, or
- the sale has some other specified connection with the United States as
provided in U.S. Treasury regulations,
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above are
met or you otherwise establish an exemption.
In addition, a sale of common shares or preferred shares will be subject to
information reporting if it is effected at a foreign office of a broker that is:
- a United States person,
- a controlled foreign corporation for United States tax purposes,
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a United States trade or business for a
specified three-year period, or
- a foreign partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons", as defined in U.S.
Treasury regulations, who in the aggregate hold more than 50% of the
income or capital interest in the partnership, or
- such foreign partnership is engaged in the conduct of a United States
trade or business,
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above are
met or you otherwise establish an exemption. Backup
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withholding will apply if the sale is subject to information reporting and the
broker has actual knowledge that you are a United States person.
You generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by filing a refund claim
with the Internal Revenue Service.
OTHER TAX CONSEQUENCES
State or local taxation may apply to Vornado and its shareholders in
various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of Vornado and
its shareholders may not conform to the Federal income tax consequences
discussed above. Consequently, prospective shareholders should consult their own
tax advisors regarding the effect of state and local tax laws on an investment
in Vornado.
TAXATION OF HOLDERS OF MOST FIXED RATE DEBT SECURITIES
This section describes the material United States federal income tax
consequences of owning the fixed rate debt securities that Vornado Realty L.P.
may offer for your general information only. It is not tax advice. It applies to
you only if the fixed rate debt securities that you purchase are not original
issue discount or zero coupon debt securities and you acquire the fixed rate
debt securities in the initial offering at the offering price. If you purchase
these fixed rate debt securities at a price other than the offering price, the
amortizable bond premium or market discount rules may also apply to you. You
should consult your own tax advisor regarding this possibility.
The tax consequences of owning any fixed rate debt securities that are zero
coupon debt securities or original issue discount debt securities, floating rate
debt securities, zero coupon debt securities, original issue debt securities, or
indexed debt securities that we offer will be discussed in the applicable
prospectus supplement.
UNITED STATES DEBT SECURITY HOLDERS
This subsection describes the tax consequences to a United States debt
security holder. You are a United States debt security holder if you are a
beneficial owner of a fixed rate debt security to which this section applies and
you are:
- a citizen or resident of the United States,
- a domestic corporation,
- an estate whose income is subject to United States federal income tax
regardless of its source, or
- a trust if a United States court can exercise primary supervision over
the trust's administration and one or more United States persons are
authorized to control all substantial decisions of the trust.
If you are not a United States debt security holder of a fixed rate debt
security to which this section applies, this subsection does not apply to you
and you should refer to "-- United States Alien Debt Security Holders" below.
Payments of Interest. You will be taxed on interest on your fixed rate
debt security as ordinary income at the time you receive the interest or when it
accrues, depending on your method of accounting for tax purposes.
Purchase, Sale and Retirement of Fixed Rate Debt Securities. Your tax
basis in your fixed rate debt security generally will be its cost. You will
generally recognize capital gain or loss on the sale or retirement of your note
equal to the difference between the amount you realize on the sale or
retirement, excluding any amounts attributable to accrued but unpaid interest,
and your tax basis in your note. Capital gain of a noncorporate United States
debt security holder is generally taxed at preferential rates where the holder
has a holding period greater than one year.
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UNITED STATES ALIEN DEBT SECURITY HOLDERS
This subsection describes the tax consequences to a United States alien
debt security holder. You are a United States alien debt security holder if you
are the beneficial owner of a fixed rate debt security to which this section
applies and are, for United States federal income tax purposes:
- a nonresident alien individual,
- a foreign corporation,
- a foreign partnership, or
- an estate or trust that in either case is not subject to United States
federal income tax on a net income basis on income or gain from a debt
security.
If you are a United States debt security holder, this subsection does not apply
to you.
Under United States federal income and estate tax law, and subject to the
discussion of backup withholding below, if you are a United States alien debt
security holder:
- we and other U.S. payors generally will not be required to deduct United
States withholding tax from payments of principal and interest to you if,
in the case of payments of interest:
1. you do not actually or constructively own 10% or more of the
capital or profits interest of Vornado Realty L.P.,
2. you are not a controlled foreign corporation that is related to
Vornado Realty L.P. through stock ownership, and
3. the U.S. payor does not have actual knowledge or reason to know
that you are a United States person and:
a. you have furnished to the U.S. payor an Internal Revenue
Service Form W-8BEN or an acceptable substitute form upon which you
certify, under penalties of perjury, that you are a non-United States
person,
b. in the case of payments made outside the United States to you
at an offshore account (generally, an account maintained by you at a
bank or other financial institution at any location outside the United
States), you have furnished to the U.S. payor documentation that
establishes your identity and your status as a non-United States person,
c. the U.S. payor has received a withholding certificate
(furnished on an appropriate Internal Revenue Service Form W-8 or an
acceptable substitute form) from a person claiming to be:
i. a withholding foreign partnership (generally a foreign
partnership that has entered into an agreement with the Internal
Revenue Service to assume primary withholding responsibility with
respect to distributions and guaranteed payments it makes to its
partners),
ii. a qualified intermediary (generally a non-United States
financial institution or clearing organization or a non-United States
branch or office of a United States financial institution or clearing
organization that is a party to a withholding agreement with the
Internal Revenue Service), or
iii. a U.S. branch of a non-United States bank or of a non-United
States insurance company,
and the withholding foreign partnership, qualified intermediary or U.S. branch
has received documentation upon which it may rely to treat the payment as made
to a non-United States person in accordance with U.S. Treasury regulations (or,
in the case of a qualified intermediary, in accordance with its agreement with
the Internal Revenue Service),
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d. the U.S. payor receives a statement from a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business,
i. certifying to the U.S. payor under penalties of perjury that
an Internal Revenue Service Form W-8BEN or an acceptable substitute
form has been received from you by it or by a similar financial
institution between it and you, and
ii. to which is attached a copy of the Internal Revenue Service
Form W-8BEN or acceptable substitute form, or
4. the U.S. payor otherwise possesses documentation upon which it may
rely to treat the payment as made to a non-United States person in
accordance with U.S. Treasury regulations, and
- no deduction for any United States federal withholding tax will be made
from any gain that you realize on the sale or exchange of your note.
Further, a fixed rate debt security held by an individual who at death is not a
citizen or resident of the United States will not be includible in the
individual's gross estate for United States federal estate tax purposes if:
- the decedent did not actually or constructively own 10% or more of the
capital or profits interest of Vornado Realty L.P. at the time of death
and
- the income on the fixed rate debt security would not have been
effectively connected with a United States trade or business of the
decedent at the same time.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, if you are a noncorporate United States debt security holder,
we and other payors are required to report to the Internal Revenue Service all
payments of principal and interest on your fixed rate debt security. In
addition, we and other payors are required to report to the Internal Revenue
Service any payment of proceeds of the sale of your fixed rate debt security
before maturity within the United States. Additionally, backup withholding will
apply to any payments if you fail to provide an accurate taxpayer identification
number, or you are notified by the Internal Revenue Service that you have failed
to report all interest and dividends required to be shown on your federal income
tax returns.
In general, if you are a United States alien debt security holder, payments
of principal or interest made by us and other payors to you will not be subject
to backup withholding and information reporting, provided that the certification
requirements described above under "-- United States Alien Debt Security
Holders" are satisfied or you otherwise establish an exemption. However, we and
other payors are required to report payments of interest on your fixed rate debt
securities on Internal Revenue Service Form 1042-S even if the payments are not
otherwise subject to information reporting requirements. In addition, payment of
the proceeds from the sale of fixed rate debt securities effected at a United
States office of a broker will not be subject to backup withholding and
information reporting provided that:
- the broker does not have actual knowledge or reason to know that you are
a United States person and you have furnished to the broker:
- an appropriate Internal Revenue Service Form W-8 or an acceptable
substitute form upon which you certify, under penalties of perjury, that
you are not a United States person, or
- other documentation upon which it may rely to treat the payment as made
to a non-United States person in accordance with U.S. Treasury
regulations, or
- you otherwise establish an exemption.
If you fail to establish an exemption and the broker does not possess adequate
documentation of your status as a non-United States person, the payments may be
subject to information reporting and backup withholding. However, backup
withholding will not apply with respect to payments made to an offshore account
maintained by you unless the broker has actual knowledge that you are a United
States person.
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In general, payment of the proceeds from the sale of fixed rate debt
securities effected at a foreign office of a broker will not be subject to
information reporting or backup withholding. However, a sale effected at a
foreign office of a broker will be subject to information reporting and backup
withholding if:
- the proceeds are transferred to an account maintained by you in the
United States,
- the payment of proceeds or the confirmation of the sale is mailed to you
at a United States address, or
- the sale has some other specified connection with the United States as
provided in U.S. Treasury regulations,
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above
(relating to a sale of debt securities effected at a United States office of a
broker) are met or you otherwise establish an exemption.
In addition, payment of the proceeds from the sale of fixed rate debt
securities effected at a foreign office of a broker will be subject to
information reporting if the broker is:
- a United States person,
- a controlled foreign corporation for United States tax purposes,
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a United States trade or business for a
specified three-year period, or
- a foreign partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons", as defined in U.S.
Treasury regulations, who in the aggregate hold more than 50% of the
income or capital interest in the partnership, or
- such foreign partnership is engaged in the conduct of a United States
trade or business,
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above
(relating to a sale of debt securities effected at a United States office of a
broker) are met or you otherwise establish an exemption. Backup withholding will
apply if the sale is subject to information reporting and the broker has actual
knowledge that you are a United States person.
You generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by filing a refund claim
with the Internal Revenue Service.
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PLAN OF DISTRIBUTION
Vornado Realty Trust and Vornado Realty L.P. may sell the securities to one
or more underwriters for public offering and sale by them or may sell the
securities to investors directly or through agents. Vornado Realty Trust's
common shares or preferred shares may be issued in exchange for debt securities
of Vornado Realty L.P. Any underwriter or agent involved in the offer and sale
of the securities will be named in the related prospectus supplement. Such
underwriter may include Goldman, Sachs & Co., or a group of underwriters
represented by firms including Goldman, Sachs & Co. Goldman, Sachs & Co. may
also act as agents. Vornado Realty Trust and Vornado Realty L.P. have reserved
the right to sell the securities directly to investors on their own behalf in
those jurisdictions where they are authorized to do so.
Underwriters may offer and sell the securities at a fixed price or prices
that may be changed or at negotiated prices. Vornado Realty Trust and Vornado
Realty L.P. also may, from time to time, authorize dealers, acting as Vornado
Realty Trust's or Vornado Realty L.P.'s agents, to offer and sell the securities
upon the terms and conditions described in the related prospectus supplement.
Underwriters may receive compensation from Vornado Realty Trust or Vornado
Realty L.P. in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of the securities for whom they may act as
agent. Underwriters may sell the securities to or through dealers, and the
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions, which may be changed from time
to time, from the purchasers for whom they may act as agents.
Any underwriting compensation paid by Vornado Realty Trust or Vornado
Realty L.P. to underwriters or agents in connection with the offering of the
securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be stated in the related prospectus
supplement. Dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the applicable
securities laws. Underwriters, dealers and agents may be entitled, under
agreements entered into with Vornado Realty Trust or Vornado Realty L.P., to
indemnification against and contribution towards certain civil liabilities,
including any liabilities under the applicable securities laws.
Unless otherwise indicated in the applicable prospectus supplement, any
securities issued under this prospectus will be new issues of securities with no
established trading market. Any underwriters or agents to or through whom the
securities are sold by Vornado Realty Trust or Vornado Realty L.P. for public
offering and sale may make a market in the securities, but the underwriters or
agents will not be obligated to do so and may discontinue any market making at
any time without notice. We do not know how liquid the trading market for any of
our securities will be.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with, and perform services for, Vornado Realty Trust,
Vornado Realty L.P. and their affiliates in the ordinary course of business for
which they may receive customary fees and expenses.
VALIDITY OF THE SECURITIES
The validity of any debt securities issued under this prospectus will be
passed upon for Vornado Realty L.P., and the validity of any depositary shares
issued under this prospectus will be passed upon for Vornado Realty Trust, by
Sullivan & Cromwell LLP, New York, New York, counsel to Vornado Realty Trust and
Vornado Realty L.P. The validity of any preferred shares or common shares issued
under this prospectus will be passed upon for Vornado Realty Trust by Venable,
Baetjer and Howard, LLP, Baltimore, Maryland, Maryland counsel to Vornado Realty
Trust. The validity of any securities issued under this prospectus will be
passed upon for any underwriters by the counsel named in the applicable
prospectus supplement.
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EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from Vornado Realty
Trust's annual report on Form 10-K for the year ended December 31, 2002 and from
Vornado Realty L.P.'s annual report on Form 10-K for the year ended December 31,
2002, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference (which
reports express an unqualified opinion and include an explanatory paragraph
referring to Vornado Realty Trust's and Vornado Realty L.P.'s adoption of SFAS
No. 142 "Goodwill and Other Intangible Assets" on January 1, 2002), and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 2003 and 2002 and June 30, 2003 and 2002 which is incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their reports included in Vornado Realty Trust's and
Vornado Realty L.P.'s Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003 and June 30, 2003 and incorporated by reference herein, they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of the reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. Deloitte & Touche LLP are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their reports on the
unaudited interim financial information because these reports are not "reports"
or a "part" of the registration statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
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