AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 26, 2002
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VORNADO REALTY TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 22-1657560
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
888 SEVENTH AVENUE JOSEPH MACNOW
NEW YORK, NEW YORK 10019 888 SEVENTH AVENUE
(212) 894-7000 NEW YORK, NEW YORK 10019
(ADDRESS INCLUDING ZIP CODE, AND (212) 894-7000
TELEPHONE NUMBER, INCLUDING AREA (ADDRESS INCLUDING ZIP CODE, AND
CODE, OF REGISTRANT'S EXECUTIVE TELEPHONE NUMBER, INCLUDING AREA CODE,
OFFICES) OF AGENT FOR SERVICE)
COPIES TO:
William G. Farrar, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum
maximum aggregate
Title of shares Amount to be offering price offering price Amount of
to be registered registered per share (2) (2) registration fee
---------------- ---------- ------------- --- ----------------
Common shares of beneficial 1,164,558 $36.60 $42,622,822.80 $3,922
interest, par value $0.04 per share (1)
(1) This registration statement registers 1,164,558 common shares of beneficial
interest, par value $0.04 per share, of Vornado Realty Trust ("Vornado")
that may be offered by certain selling shareholders (the "selling
shareholders") including (i) up to 1,143,658 common shares that Vornado may
elect to issue to certain selling shareholders upon redemption of up to
1,143,658 class A units ("Units") of limited partnership interest in
Vornado Realty L.P. (the "operating partnership") and (ii) 20,900 common
shares issued by Vornado to other selling shareholders upon the redemption
of Units. The 1,164,558 Units that may be or have been redeemed for common
shares were issued by the operating partnership in connection with its
acquisition of the properties located at 770 Broadway and 909 Third Avenue
in New York City, nine cold storage warehouses in the central United
States, and equity interests in various limited partnerships that own real
estate. This registration statement also relates to such additional common
shares as may be issued as a result of certain adjustments including,
without limitation, share dividends and share splits.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the New York Stock Exchange on December 19, 2002.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT THE
SOLICITATION OF AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 26, 2002
VORNADO REALTY TRUST
1,164,558 COMMON SHARES
The selling shareholders of Vornado Realty Trust described under
"Selling Shareholders" may offer and sell from time to time up to 1,164,558
common shares of beneficial interest of Vornado, in amounts, at prices and on
terms to be determined at the time of sale. The common shares covered by this
prospectus include up to 1,143,658 common shares that may be issued to certain
selling shareholders, at our option, upon the redemption of 1,143,658 class A
units of limited partnership interest in Vornado Realty L.P. and 20,900 common
shares issued by Vornado to other selling shareholders upon the redemption of
units. Vornado Realty L.P. is the operating partnership through which we own our
assets and operate our business. The units that may be or have been redeemed for
common shares were issued in connection with our acquisition of the properties
located at 770 Broadway and 909 Third Avenue in New York City, nine cold storage
warehouses in the central United States, and equity interests in various limited
partnerships that own real estate.
We will acquire units from the redeeming unit holders in exchange for
any common shares that we may issue to them. We have registered the offering and
resale of the common shares to permit their holders to sell them without
restriction in the open market or otherwise, but the registration of the shares
does not necessarily mean that the holders will elect to redeem their units or
that the holders will offer or sell any common shares that they receive. Also,
upon any redemption, we may elect to pay cash for the units tendered rather than
issue common shares. Although we will incur expenses in connection with the
registration of the common shares, we will not receive any cash proceeds upon
their issuance.
The selling shareholders may sell the common shares offered by a variety
of methods, including in underwritten public offerings; in ordinary brokerage
transactions on securities exchanges, including the New York Stock Exchange; to
or through brokers or dealers who may act as principal or agent; or in one or
more public or private negotiated transactions. To the extent required, the
names of any underwriters and applicable commissions or discounts and any other
required information with respect to any particular sale will be set forth in an
accompanying prospectus supplement. See "Plan of Distribution" for a further
description of how the selling shareholders may dispose of the shares covered by
this prospectus.
The common shares are listed on the New York Stock Exchange under the
symbol "VNO."
In order to maintain our qualification as a real estate investment trust
for federal income tax purposes and for other purposes, no person generally may
own more than 6.7% of the outstanding common shares. Shares owned in excess of
this limit will be deemed "excess shares" under the declaration of trust. The
holder of any excess shares will lose some ownership rights with respect to
these shares, and we will have the right to purchase them from the holder.
See "Risk Factors" beginning on page 5 for information about factors
relevant to an investment in the common shares.
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.
The date of this prospectus is December , 2002.
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR PROVIDED IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE ELSE
TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS ACCURATE
AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THESE DOCUMENTS.
When we say "we," "our," "us" or "Vornado," we mean Vornado Realty Trust
and its consolidated subsidiaries, except where we make it clear that we mean
only the parent company. When we say the "operating partnership," we mean
Vornado Realty L.P.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file 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.
This prospectus is part of a registration statement on Form S-3 filed by
Vornado with the SEC under the Securities Act. As permitted by the rules and
regulations of the SEC, this prospectus omits some of the information contained
in the registration statement. You should read the registration statement and
related exhibits for further information about Vornado and the common shares
offered by this prospectus. Statements in this prospectus about the provisions
of any document filed as an exhibit to the registration statement or otherwise
filed with the SEC are only summaries, and in each instance you should read the
document so filed for complete information about its provisions. Each statement
in this prospectus about the provisions of any document filed with the SEC is
qualified in its entirety by reference to the document.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and, where applicable, supersede this
information.
We incorporate by reference into this prospectus the following documents
or information filed with the SEC:
(1) Annual report of Vornado Realty Trust on Form 10-K for the fiscal
year ended December 31, 2001 (File No. 001-11954);
(2) Quarterly report of Vornado Realty Trust on Form 10-Q for the
fiscal quarter ended March 31, 2002 (File No. 001-11954);
(3) Quarterly report of Vornado Realty Trust on Form 10-Q for the
fiscal quarter ended June 30, 2002 (File No. 001-11954);
(4) Quarterly report of Vornado Realty Trust on Form 10-Q for the
fiscal quarter ended September 30, 2002 (File No. 001-11954), as
amended by Form 10-Q/A filed with the SEC on December 24, 2002;
(5) Current report on Form 8-K of Vornado Realty Trust dated January
1, 2002 and filed with the SEC on January 16, 2002 (File No.
001-11954);
(6) Current report on Form 8-K of Vornado Realty Trust dated February
28, 2002 and filed with the SEC on March 1, 2002 (File No.
001-11954);
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(7) Current report on Form 8-K/A of Vornado Realty Trust dated
January 1, 2002 and filed with the SEC on March 18, 2002 (File
No. 001-11954);
(8) Current report on Form 8-K of Vornado Realty Trust dated August
20, 2002 and filed with the SEC on August 22, 2002 (File No.
001-11954);
(9) The description of Vornado's common shares contained in Vornado's
registration statement on Form 8-B (File No. 001-11954), filed on
May 10, 1993; and
(10) All documents filed by Vornado Realty Trust under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this prospectus and until we sell all of the
securities or after the date of the initial registration
statement and before 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.
You may request a copy of these filings, excluding exhibits to these
filings unless they are specifically incorporated by reference into these
filings, at no cost, by writing or telephoning us at the following address:
Vornado Realty Trust, 210 Route 4 East, Paramus, New Jersey 07652, telephone
(201) 587-1000, Attn: Secretary.
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. 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.
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, the following possibilities:
- national, regional and local economic conditions;
- 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 expense;
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- decreases in market rental rates;
- the timing and costs associated with property improvements and
rentals;
- changes in taxation or zoning laws;
- government regulations;
- our 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.
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 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.
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RISK FACTORS
An investment in our common shares involves risks. You should carefully
consider, among other factors, the matters described below.
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;
- 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 expense;
- decreases in market rental rates;
- the timing and costs associated with property improvements and
rentals;
- changes in taxation or zoning laws;
- government regulations;
- 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 our shareholders. 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.
5
If rents decline while costs remain the same, our income and funds available for
distribution to our shareholders 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 shareholders 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 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 shareholders.
U.S. Airways Group Inc. leases 340,000 square feet from us for its
headquarters in Washington, D.C. U.S. Air has been adversely affected by the
downturn in air travel as a result of the terrorist attacks and economic decline
and declared bankruptcy in August 2002. We cannot predict whether U.S. Air will
reject all or part of its headquarters lease.
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 liability and all risk property insurance (fire,
flood, extended coverage and rental loss insurance) with respect to our
properties. However, there are some types of losses, including lease and other
contract claims, as well as claims related to nuclear reactions, certain other
contaminants and pollutants and, most recently, terrorist acts, that generally
are not insured. If an uninsured loss or a loss in excess of insured limits
occurs, we could lose all or a portion of the capital we have invested in a
property, as well as the anticipated future revenue from the property. If this
were to happen, we might remain obligated for any mortgage debt or other
financial obligations related to the property and may be liable to third parties
for damages.
The insurance payouts that have been made, and that are continuing to be
made, as a result of the terrorist attacks have reduced significantly the
insurance industry's reserves, and this reduction may continue as additional
claims are made. Moreover, the demand for higher levels of insurance coverage
has increased, and this rising demand is expected to continue as a result of
these attacks. For these reasons and others related to the general market for
insurance products, insurance premiums have increased significantly with respect
to policies that we have renewed since September 11, 2001, and we expect that
insurance premiums will continue to increase for any policy, upon its renewal,
that we have not renewed since September 11, 2001. These increases have had an
adverse impact on our cash flow, and, if the current condition of the insurance
market persists, we expect this adverse impact to continue with respect to any
6
policy, upon its renewal, that we have not renewed since September 11, 2001.
Furthermore, we have not been able to purchase policies with coverage limits and
deductibles similar to those that were available before the attacks, and it is
likely that we will not be able to purchase those kinds of policies in the
future.
Real property insurance policies put into effect before September 11,
2001 do not expressly exclude coverage from hostile acts, except for acts of
war. Since September 11, 2001, insurance companies have been excluding terrorist
acts from coverage in all risk policies. We have generally been unable to obtain
all risk insurance which includes coverage for terrorist acts for policies we
have renewed since September 11, 2001, and we may not be able to obtain coverage
for terrorist attacks under any policy we purchase in the future. However, we
have obtained separate coverage in limited amounts for terrorist acts when an
all risk insurance policy covering our properties has excluded terrorist acts
from coverage upon the renewal of the policy. Therefore, we are at risk for
financial loss in excess of these limited amounts for terrorist acts as defined
by the policies, which loss could be material.
Our debt instruments, consisting of mortgage loans secured by our
properties, which are generally non-recourse to us, our senior unsecured notes
due 2007, and our revolving credit agreement, contain customary covenants
requiring us to maintain insurance. The lenders under these instruments may take
the position that an exclusion from all risk insurance coverage for losses due
to terrorist acts is a breach of these debt instruments that allows the lenders
to declare an event of default and accelerate repayment of debt. In addition, if
lenders insist on coverage for these risks, it could adversely affect our
ability to finance 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), insurers licensed or admitted in the United States, as
well as other specified insurers, must offer coverage in their commercial
property and casualty policies (including existing policies) for losses
resulting from defined "acts of terrorism". As of the date of enactment of this
law, existing terrorism exclusion clauses are void to the extent they exclude
losses that would otherwise be "insured losses" under the legislation. Subject
to certain caps on reimbursement and other limitations, this legislation will
establish a federal program to reimburse insurers for a portion of losses so
insured. It is unclear what effect, if any, this legislation will have on our
ability to obtain insurance coverage for terrorist attacks in the future and
what impact it may have on any premiums paid by us in connection with coverage
for terrorist attacks. However, as required by the legislation, it is expected
that all insurers writing our property and casualty insurance will advise us by
February 24, 2003 of the cost of participation in the federal program, and
provide a 30 day period for us to opt in or out of the federal program.
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
$9,066,000,000 at September 30, 2002. 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 $2,201,000,000, of which $1,453,000,000 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
the operating partnership and therefore being consolidated rather than accounted
for under the equity method. We may not be able to manage any growth effectively
or to maintain a similar rate of growth in the future, and our failure to do so
may have a material adverse effect on our financial condition and results of
operations.
In addition, if persons selling properties to us wish to defer the
payment of taxes on the sales proceeds, we are likely to pay them in units of
the operating partnership. In transactions of this kind, we may also agree not
to sell the acquired properties or reduce the mortgage indebtedness on them for
significant periods of time. If we borrow funds or assume indebtedness to
acquire or develop properties, indebtedness of the operating partnership, as a
percentage of our asset value or market capitalization, might increase. If this
happens, the increased leverage may impair our ability to take actions that
would otherwise be in our best interests or the best interests of our security
holders.
For additional information about our leverage, see "-- Our
Organizational and Financial Structure Gives Rise to Operational and Financial
Risks -- We have indebtedness, and this indebtedness may increase" below.
7
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
shareholders could decline. For information relating to the mortgages on our
properties, see "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Liquidity and Capital Resources" in our annual report
on Form 10-K for the year ended December 31, 2001 and quarterly report on Form
10-Q for the period ended September 30, 2002 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.
For the nine months ended September 30, 2002, 72.6% of our earnings
before interest expense, taxes, depreciation and amortization, extraordinary or
non-recurring items, gains or losses on sales of real estate, the effect of
straight-lining of property rentals for rent escalations and minority interest
came from properties located in New Jersey and the New York City and Washington,
D.C. metropolitan areas. We refer to earnings before interest expense, taxes,
depreciation and amortization, extraordinary or non-recurring items, gains or
losses on sales of real estate, the effect of straight-lining of property
rentals for rent escalations and minority interest as "EBITDA." Our management
considers EBITDA a supplemental measure for making decisions and assessing the
performance of our segments. EBITDA should not be considered a substitute for
net income as a measure of operating performance or a substitute for cash flow
as a measure of liquidity. EBITDA may not be comparable to similarly titled
measures employed by other companies.
In addition, 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
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- 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 the
operating partnership 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, 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," without the consent of Robert H. Smith and Robert P. Kogod,
each of whom was a significant unit holder of Charles E. Smith Commercial Realty
L.P., 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 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
was responsible for 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 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 our properties.
9
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, the trends of the national and local economies, the financial
condition and operating results of current and prospective tenants and
customers, the 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.
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 willingness of people to visit New York City in
particular. Since September 11, 2001, there has been a substantial decline in
travel and tourism to 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.
The operating partnership indirectly owns a 60% interest in
partnerships, which we refer to as the "Vornado/Crescent Partnerships," that own
89 warehouse facilities nationwide with an aggregate of approximately 445
million cubic feet of refrigerated, frozen and dry storage space. The
Vornado/Crescent Partnerships 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 Partnerships, which continue to own
the real estate. During 2001, AmeriCold Logistics generated approximately 8% of
our EBITDA on a pro forma basis as if the acquisition of Charles E. Smith
Commercial Realty L.P. occurred on January 1, 2001. During the nine months ended
September 30, 2002, AmeriCold Logistics generated approximately 7.4% of our
EBITDA. On February 22, 2001, the Vornado/Crescent Partnerships restructured the
AmeriCold Logistics leases to, among other things, (a) reduce 2001's contractual
rent to $146,000,000, (b) reduce 2002's contractual rent to $150,000,000 plus
contingent rent in certain circumstances, (c) increase the Vornado/Crescent
Partnerships' share of annual maintenance capital expenditures by $4,500,000 to
$9,500,000 effective January 1, 2000 and (d) allow
10
AmeriCold Logistics to defer rent to December 31, 2003 to the extent cash is not
available, as defined in the leases, to pay the rent. Based on our policy of
recognizing rental income when earned and collection is assured or cash is
received, we did not recognize $15,281,000 and $8,606,000 of the rent that was
due in the years ended December 31, 2001 and 2000 and $12,361,000 of rent that
was due in the nine months ended September 30, 2002. On December 31, 2001 the
Vornado/Crescent Partnerships released the tenant from its obligation to pay
$39,812,000 of deferred rent, of which our share was $23,887,000. This amount
equals the rent that we did not recognize as income in 2000 and 2001 and
accordingly had no profit and loss effect on us.
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 Form 10-K for the year
ended December 31, 2001 and our quarterly report on Form 10-Q for the quarterly
period ended September 30, 2002 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 September 30, 2002, Interstate Properties, a New Jersey general
partnership, and its partners owned approximately 15.7% of the common shares of
Vornado 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 redeemable for
cash or, at Vornado Operating's election, 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, 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 and is also a director of both Alexander's and
Vornado Operating. Mr. Mandelbaum is a trustee of Vornado and is also a director
of Alexander's.
As of September 30, 2002, Vornado 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
11
and Michael D. Fascitelli, the President and a trustee of Vornado, are directors
of Alexander's. Messrs. Mandelbaum, Richard R. West and Wight are trustees of
Vornado and are also directors of Alexander's.
Because of these overlapping interests, Mr. Roth and Interstate
Properties may have substantial influence over Vornado, Alexander's and Vornado
Operating and on the outcome of any matters submitted to Vornado'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 shareholders. 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, 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,
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 currently manages and leases the real estate assets of
Interstate Properties under a management agreement for which Vornado receives a
quarterly 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 earned $1,655,000 of management fees
under the management agreement for the year ended December 31, 2001 and
$1,023,000 for the nine months ended September 30, 2002. Because Vornado 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.
VORNADO ENGAGES 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 in order to
own assets that Vornado could not itself own and conduct activities that Vornado
could not itself conduct.
In addition to being trustees of Vornado, 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's senior
management hold corresponding positions with Vornado Operating.
The operating partnership 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%.
The operating partnership 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 September 30, 2002, $32,836,000 was outstanding under the revolving credit
agreement.
The operating partnership and Vornado Operating are parties to an
agreement under which, among other things, (a) the operating partnership will
offer Vornado Operating, under certain circumstances, an opportunity to become
the lessee of certain real property owned now or in the future by the operating
partnership 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 the operating partnership the
opportunity to make the investment and the operating partnership has rejected
that
12
opportunity. Under this agreement, the operating partnership provides Vornado
Operating with administrative, corporate, accounting, financial, insurance,
legal, tax, data processing, human resources and operational services. For these
services, Vornado Operating compensates the operating partnership in an amount
determined in good faith by the operating partnership as the amount an
unaffiliated third party would charge Vornado Operating for comparable services
and reimburses the operating partnership 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, $330,000 and $371,000 for the
years ended December 31, 1999, 2000 and 2001 and $248,000 for the nine months
ended September 30, 2002. Vornado Operating and the operating partnership 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, the operating partnership 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 the operating partnership 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 our trustees 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 VORNADO AND ALEXANDER'S.
As of September 30, 2002, Vornado 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 outstanding common stock of
Alexander's as of September 30, 2002. Mr. Roth, Chairman of the Board and Chief
Executive Officer of Vornado, 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, are also directors of Alexander's. Alexander's common stock
is listed on the New York Stock Exchange under the symbol "ALX."
At September 30, 2002, the operating partnership had loans receivable
from Alexander's of $119,000,000 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. The operating partnership manages,
develops and leases the Alexander's properties under management and development
agreements and leasing agreements under which the operating partnership 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 and Alexander's share common senior management and because a majority of
the trustees of Vornado 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,
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.
13
AN AFFILIATED COMPANY PROVIDES CLEANING AND SECURITY SERVICES TO SOME OF OUR
OFFICE PROPERTIES UNDER CONTRACTS THAT WERE NOT NEGOTIATED AT ARM'S LENGTH.
David Greenbaum, the President of our New York Office Division, and
certain other investors own an entity that provides cleaning and related
services and security services to our office properties in the New York City
metropolitan area and New Jersey. The contracts under which these services are
provided were not negotiated at arm's length.
ARCHSTONE-SMITH TRUST PROVIDES SERVICES TO US UNDER AGREEMENTS THAT WERE NOT
NEGOTIATED AT ARM'S LENGTH.
We have agreements with the Charles E. Smith Residential Division of
Archstone-Smith Trust under which we receive engineering and tenant build-out
services. In addition, we lease office space to Archstone-Smith Trust and share
the cost of certain office-related services with it. 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 and
Charles E. Smith Residential. Mr. Smith and Mr. Kogod, who became members of our
board of trustees 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.
WE DEPEND ON OUR 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 US.
Substantially all of our assets consist of our partnership interests in
the operating partnership. The operating partnership holds substantially all of
its properties and assets through subsidiaries. The operating partnership
therefore depends for substantially all of its cash flow on cash distributions
to it by its subsidiaries, and we in turn depend for substantially all of our
cash flow on cash distributions to us by the operating partnership. 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
distributions may be made by that subsidiary to its equity holders. Thus, the
operating partnership's ability to make distributions to holders of units
depends on its subsidiaries' ability first to satisfy their obligations to their
creditors and then to make distributions to the operating partnership. Likewise,
our ability to pay dividends to holders of common and preferred shares depends
on the operating partnership'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 us.
Furthermore, the holders of preferred units of the operating partnership
are entitled to receive preferred distributions before payment of distributions
to holders of common units of the operating partnership, including us. Thus, our
ability to pay dividends to holders of our common shares depends on the
operating partnership'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 us. There are currently 17 series of preferred units of
the operating partnership not held by us that have preference over our common
shares. The total liquidation value of these 17 series of preferred units is
approximately $1,495,300,000.
In addition, we may participate in any distribution of the assets of any
of our direct or indirect subsidiaries upon the liquidation, reorganization or
insolvency of the subsidiary, and consequently our shareholders 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.
14
WE HAVE INDEBTEDNESS, AND THIS INDEBTEDNESS MAY INCREASE.
As of September 30, 2002, we had approximately $4.9 billion in total
debt outstanding, including the debt assumed in connection with the acquisition
of Charles E. Smith Commercial Realty L.P. In addition, as of September 30,
2002, our ratio of total debt to total enterprise value was 43%. 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 shareholders.
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, and Michael D.
Fascitelli, the President of Vornado. While we believe that we could find
replacements for these key personnel, the loss of their services could harm our
operations.
WE MIGHT FAIL TO QUALIFY OR REMAIN QUALIFIED AS A REIT.
Although we believe that Vornado will remain organized and will continue
to operate so as to qualify as a REIT for federal income tax purposes, we 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
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 shareholders 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.
VORNADO'S CHARTER DOCUMENTS AND APPLICABLE LAW MAY HINDER ANY ATTEMPT TO ACQUIRE
VORNADO.
Generally, for Vornado to maintain its qualification as a REIT under the
Internal Revenue Code, not more than 50% in value of the outstanding shares of
beneficial interest of Vornado may be owned, directly or indirectly, by five or
fewer individuals at any time during the last half of Vornado'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'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 adopted the limit and other persons
approved by Vornado's Board of Trustees. These restrictions on transferability
and ownership may delay, deter or prevent a change in control of Vornado or
other transaction that might involve a premium price or otherwise be in the best
interest of the shareholders. We refer to Vornado's Amended and Restated
Declaration of Trust, as amended, as the "declaration of trust."
15
Vornado'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, even though a tender offer or change in control might
be in the best interest of our shareholders.
Vornado's declaration of trust authorizes the Board of Trustees:
- to cause Vornado 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 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 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's declaration of
trust and bylaws contain other provisions that may delay, deter or prevent a
change in control of Vornado or other transaction that might involve a premium
price or otherwise be in the best interest of the 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 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, or their affiliates, and
Vornado. As a result, the trustees and officers of Vornado and their affiliates
may be able to enter into business combinations with Vornado 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 or
other transaction that might involve a premium price or
16
otherwise be in the best interest of the shareholders. The business combination
statute may discourage others from trying to acquire control of Vornado and
increase the difficulty of consummating any offer.
THE NUMBER OF SHARES OF VORNADO AND THE MARKET FOR THOSE SHARES GIVE RISE TO
VARIOUS RISKS.
VORNADO HAS MANY SHARES AVAILABLE FOR FUTURE SALE, WHICH COULD HURT THE MARKET
PRICE OF OUR SHARES.
As of November 30, 2002, 30,921,603 Vornado common shares were reserved
for issuance upon redemption of operating partnership units. Some of these
shares may be sold in the public market after registration under the Securities
Act under registration rights agreements between Vornado and some holders of
units of the operating partnership. 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, we have 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 granted options to purchase
additional common shares to some of our executive officers and employees. We
cannot predict the effect that future sales of our 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 OUR 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;
- 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;
- our financial condition and performance; and
- general financial market conditions.
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.
WE HAVE NOT OBTAINED THE CONSENT OF ARTHUR ANDERSEN LLP FOR THE USE OF ITS
PREVIOUSLY ISSUED AUDIT REPORT REGARDING THE FINANCIAL STATEMENTS OF CHARLES E.
SMITH COMMERCIAL REALTY L.P., AND THAT MAY LIMIT YOUR ABILITY TO RECOVER FROM
ARTHUR ANDERSEN LLP WITH RESPECT TO THAT AUDIT. OUR ABILITY TO RECOVER FROM THAT
FIRM FOR THAT AUDIT MAY ALSO BE LIMITED.
The consolidated balance sheet as of December 31, 2001 and the
consolidated statements of income, changes in partners' deficit, and cash flows
for the year ended December 31, 2001 of Charles E. Smith Commercial Realty L.P.
and subsidiaries that are incorporated by reference in this prospectus are
17
accompanied by an audit report of Arthur Andersen LLP. We were unable, however,
to obtain that firm's consent to the incorporation by reference of that audit
report in this prospectus and the registration statement of which this
prospectus is part because of the events arising out of Arthur Andersen LLP's
conviction in June 2002 on a federal charge of obstruction of justice relating
to the audits of Enron Corp. As a result, investors will not be able to recover
against Arthur Andersen LLP under Section 11(a)(4) of the Securities Act of
1933, as amended, if applicable, with respect to the audit report with respect
to Charles E. Smith Commercial Realty L.P. and may have any recovery limited as
a result of the lack of consent. Moreover, the events arising out of Arthur
Andersen LLP's conviction may adversely affect the ability of Arthur Andersen
LLP to satisfy any successful claims against it, including any claims brought by
us, arising from its audit of Charles E. Smith Commercial Realty L.P.'s
financial statements.
18
VORNADO AND THE OPERATING PARTNERSHIP
Vornado is a fully-integrated real estate investment trust organized
under the laws of Maryland. Vornado conducts its business through, and
substantially all of its interests in properties are held by, the operating
partnership. Vornado is the sole general partner of, and owned approximately 79%
of the common limited partnership interest in, the operating partnership as of
December 9, 2002.
The operating partnership currently owns directly or indirectly:
- Office Properties:
-- all or portions of 73 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:
-- 56 shopping center properties in six states and Puerto Rico
aggregating approximately 12.8 million square feet,
including 1.4 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 partnerships that own 88 warehouse
facilities nationwide with an aggregate of approximately
442 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.;
-- 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 21.1% 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 real estate investments.
The principal executive offices of Vornado and the operating partnership
are located at 888 Seventh Avenue, New York, New York 10019; telephone (212)
894-7000.
19
USE OF PROCEEDS
All of the common shares are being offered by the selling shareholders.
Vornado will not receive any proceeds from the sale of the shares offered by
this prospectus.
SELLING SHAREHOLDERS
The selling shareholders hold 1,143,658 units of Vornado Realty L.P. and
20,900 common shares of Vornado Really Trust issued by Vornado upon redemption
of units, applicable to this prospectus. These units were issued in various
transactions in which Vornado Realty L.P. acquired property and limited
partnership interests. The following table describes, as of the date of this
prospectus, the selling shareholders, the number of shares owned by the selling
shareholders before the offering to which this prospectus relates, including all
common shares that we may issue upon redemption of all units held by the selling
shareholders, and the maximum number of common shares that the selling
shareholders may sell using this prospectus, assuming that each selling
shareholder redeems all of the units it holds and that Vornado issues common
shares for all of the units redeemed. As used in this prospectus, the term
selling shareholder also includes transferees, assignees, distributees and
pledgees of the selling shareholders. Each sale of shares by any selling
shareholder may, if required, be accompanied by a supplement to this prospectus
stating the name of the selling shareholder using that prospectus supplement,
the number of shares being sold and a supplemental plan of distribution
describing the specific manner of sale of those shares. Because the selling
shareholders may sell all, some or none of the offered shares, no estimate can
be made of the number of offered shares that will be sold by the selling
shareholders or that will be owned by the selling shareholders upon completion
of the offering.
NUMBER OF SHARES NUMBER OF SHARES
OWNED BEFORE OFFERED BY THIS
SELLING SHAREHOLDERS OFFERING(2) PROSPECTUS
-------------------- ---------------- ----------------
Gould Investors L.P............................. 458,964 458,964
VRLP partners from 909 Third Avenue(1).......... 44,496 44,496
VRLP partners from cold storage warehouses(1)... 144,620 144,620
VRLP partners from Newkirk partnerships(1)...... 516,478 516,478
========== ==========
Total..................................... 1,164,558 1,164,558
(1) Includes 413 selling shareholders that would in the aggregate,
assuming that each selling shareholder redeems all of the units
it holds and that Vornado issues common shares for all units
redeemed, beneficially own less than 1% of the outstanding common
shares. These selling shareholders are or were partners of
Vornado Realty L.P. who received VRLP units in exchange for their
interests in 909 Third Avenue in New York City, in nine cold
storage warehouses in the central United States, or in various
limited partnerships, called the Newkirk partnerships, that own
real estate.
(2) The number of shares includes all common shares that we may issue
to the selling shareholders upon redemption of units owned by the
selling shareholders.
20
DESCRIPTION OF COMMON SHARES
The following description of the material terms of the common shares of
Vornado is only a summary and is qualified in its entirety by reference to the
provisions governing the common shares contained in the declaration of trust,
including all amendments and supplements to the declaration of trust, and bylaws
of Vornado. Copies of the declaration of trust and bylaws are exhibits to the
registration statement of which this prospectus is a part. See "Where You Can
Find More Information" for information regarding how to obtain a copy of those
documents.
VORNADO'S AUTHORIZED AND OUTSTANDING CLASSES OF SHARES
The declaration of trust authorizes the issuance of up to 540,000,000
shares of beneficial interest, consisting of:
- 200,000,000 common shares of beneficial interest, par value $0.04
per share;
- 70,000,000 preferred shares of beneficial interest, without par
value; and
- 270,000,000 excess shares of beneficial interest, par value $0.04
per share.
Of the authorized 70,000,000 preferred shares, Vornado Realty Trust has
designated:
- 5,789,315 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;
- 6,480,000 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;
- 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 November 30, 2002, the following shares were issued and outstanding:
- 108,439,971 common shares;
- 1,471,423 Series A preferred shares;
21
- 3,400,000 Series B preferred shares; and
- 4,600,000 Series C preferred shares.
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 November 30, 2002. Shares of each of these series may be
issued in the future upon redemption of preferred units of limited partnership
interest of the operating partnership of a corresponding series that were issued
and outstanding as of November 30, 2002. No excess shares were issued and
outstanding as of November 30, 2002.
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 Vornado board 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 the indebtedness of
Vornado Realty Trust, and the aggregate liquidation preference of any preferred
shares then outstanding are satisfied in full.
The common shares have equal dividend, distribution, liquidation and
other rights and have no preference, appraisal or exchange rights. All
outstanding common shares are duly authorized, fully paid and non-assessable.
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 which restrict
the ownership and transfer of shares. These provisions seek to safeguard Vornado
against an inadvertent loss of its REIT status and 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
22
ownership limit." The common shares beneficial ownership limit was initially set
at 2.0% of the outstanding common shares. The Vornado board subsequently adopted
a resolution increasing the common shares beneficial ownership limit from 2.0%
to 6.7% of the outstanding common shares and has the authority to grant limited
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 Internal Revenue 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 Internal Revenue Code, by a person
that owns 10% or more of the value of the outstanding shares of the REIT. The
attribution rules of the Internal Revenue Code applicable for these purposes are
different from those applicable with respect to the common shares beneficial
ownership limit. All references to a shareholder's ownership of common shares in
this section "-- The constructive ownership limit" assume application of the
applicable attribution rules of the Internal Revenue 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.
23
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 Internal Revenue 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 Internal Revenue 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 that 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
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.
The right of Vornado 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 Vornado
board determines in good faith that an exchange for excess shares has occurred.
24
OTHER PROVISIONS CONCERNING THE RESTRICTIONS ON OWNERSHIP
The Vornado board 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 Vornado board is presented showing that the
exemption will not jeopardize the status of Vornado 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 with respect to any class of shares in
excess of 9.9% of the outstanding shares of the class. Before granting an
exemption of this kind, the Vornado board may require a ruling from the IRS, an
opinion of counsel satisfactory to it and 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 Vornado board 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 the status of
Vornado as a REIT or to comply with Treasury regulations promulgated under the
REIT provisions of the Internal Revenue 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.
TRANSFER AGENT
The transfer agent for common shares of Vornado is Wachovia Bank, N.A.
located in Charlotte, North Carolina.
25
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
for your general information only. It is not tax advice. The tax treatment of a
holder of common shares will vary depending upon the holder's particular
situation, and this discussion addresses only holders that hold common shares 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 currency risks or that are part of a straddle or
conversion transaction; and
- persons 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, INCLUDING
THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF ACQUIRING, OWNING AND
SELLING COMMON SHARES IN YOUR PARTICULAR CIRCUMSTANCES AND POTENTIAL CHANGES IN
APPLICABLE LAWS.
TAXATION OF VORNADO REALTY TRUST AS A REIT
In the opinion of Sullivan & Cromwell, 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 is relying,
- as to certain factual matters upon the statements and
representations contained in certificates provided to Sullivan &
Cromwell by Vornado, Two Penn Plaza, REIT, Inc. and AmeriCold
Corporation;
26
- without independent investigation, as to certain factual matters
upon the statements and representations contained in the
certificate provided to Sullivan & Cromwell by Alexander's;
- without independent investigation, upon the opinion of Shearman &
Sterling concerning the qualification of Alexander's as a REIT
for each taxable year commencing with its taxable year ending
December 31, 1995; and
- in providing its opinion regarding the qualification of
Alexander's as a REIT for Federal income tax purposes, Shearman &
Sterling 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 nor Shearman & Sterling 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.
- 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
27
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;
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- the beneficial ownership of which is held by 100 or more persons;
- 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 27 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
29
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.
- 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
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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 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 27, 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
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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 Fourth, above, and not that described in Third,
above, 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 ending
December 31, 1995 and continues to so qualify. In the opinion of Shearman &
Sterling, 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 qualification and taxation as a REIT under the Internal Revenue
Code. In providing its opinion, Shearman & Sterling 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.
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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 ordinary income 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
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
U.S. SHAREHOLDERS
As used in this section, the term "U.S. shareholder" means a holder of
common 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.
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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. 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 20% or 25% capital gains 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 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. Capital gain of an
individual U.S. shareholder is generally taxed at a maximum rate of 20% where
the property is held for more than one year, and 18% where the property is held
for more than 5 years. 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
34
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.
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
35
- 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, 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, 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 U.S. 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 U.S. 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
37
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.
FEDERAL ESTATE TAXES
Common 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 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.
38
In addition, a sale of common 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 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.
39
PLAN OF DISTRIBUTION
The selling shareholders and their pledgees, donees, transferees or other
successors in interest may offer and sell, from time to time, some or all of the
common shares covered by this prospectus. We have registered the common shares
covered by this prospectus for offer and sale by the selling shareholders so
that those shares may be freely sold to the public by them. Registration of the
common shares covered by this prospectus does not mean, however, that those
shares necessarily will be offered or sold. We will not receive any proceeds
from any sale of the common shares by the selling shareholders. We will pay all
costs, expenses and fees in connection with the registration of the common
shares, including fees of our counsel and accountants, fees payable to the SEC
and listing fees. We estimate those fees and expenses to be approximately
$218,922 The selling shareholders will pay all underwriting discounts and
commissions and similar selling expenses, if any, attributable to the sale of
the common shares covered by this prospectus.
The selling shareholders and their pledgees, donees, transferees or other
successors in interest may sell the common shares covered by this prospectus
from time to time, at market prices prevailing at the time of sale, at prices
related to market prices, at a fixed price or prices subject to change or at
negotiated prices, by a variety of methods including the following:
- in privately negotiated transactions;
- through broker-dealers, who may act as agents or principals;
- in a block trade in which a broker-dealer will attempt to sell a
block of common shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
- through one or more underwriters on a firm commitment or
best-efforts basis;
- directly to one or more purchasers;
- through agents; or
- in any combination of the above.
In effecting sales, brokers or dealers engaged by the selling shareholders
may arrange for other brokers or dealers to participate. Broker-dealer
transactions may include:
- purchases of the common shares by a broker-dealer as principal and
resales of the common shares by the broker-dealer for its account
under this prospectus;
- ordinary brokerage transactions; or
- transactions in which the broker-dealer solicits purchasers.
At any time a particular offer of the common shares covered by this
prospectus is made, a revised prospectus or prospectus supplement, if required,
will be distributed which will state the aggregate amount of common shares
covered by this prospectus being offered and the terms of the offering,
including the name or names of any underwriters, dealers, brokers or agents, any
discounts, commissions, concessions and other items constituting compensation
from the selling shareholders and any discounts, commissions or concessions
allowed or reallowed or paid to dealers. Any prospectus supplement, and, if
necessary, a post-effective amendment to the registration statement of which
this prospectus is a part will be filed with the SEC to reflect the disclosure
of additional information with respect to the distribution of the common shares
covered by this prospectus.
40
In connection with the sale of the common shares covered by this
prospectus through underwriters, underwriters may receive compensation in the
form of underwriting discounts or commissions and may also receive commissions
from purchasers of common shares for whom they may act as agent. Underwriters
may sell to or through dealers, and these dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and
commissions from the purchasers for whom they may act as agent.
The common shares are listed on the NYSE under the symbol "VNO."
Any underwriters, broker-dealers or agents participating in the
distribution of the common shares covered by this prospectus may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, and any
commissions received by any of those underwriters, broker-dealers or agents may
be deemed to be underwriting commissions under the Securities Act of 1933.
Some of the common shares covered by this prospectus may be sold in
private transactions or under Rule 144 under the Securities Act of 1933 rather
than under this prospectus.
We have agreed to indemnify certain of the selling shareholders against
certain liabilities, including liabilities under the Securities Act of 1933. The
selling shareholders have also agreed to indemnify us against certain
liabilities, including liabilities under the Securities Act of 1933, for
information they furnished to us for use in this prospectus.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedules incorporated in this prospectus by reference from
Vornado's annual report on Form 10-K for the year ended December 31, 2001 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of Deloitte & Touche LLP given upon their authority
as experts in accounting and auditing.
On March 18, 2002, we filed with the SEC a Form 8-K/A, which provides
additional information regarding the Charles E. Smith Commercial Realty L.P.
acquisition and which is incorporated in this prospectus by reference. The
consolidated balance sheet as of December 31, 2001 and the consolidated
statements of income, changes in partners' deficit and cash flows for the year
ended December 31, 2001 of Charles E. Smith Commercial Realty L.P. and
subsidiaries included in the Form 8-K/A were audited by Arthur Andersen LLP,
independent public accountants, and were included in the Form 8-K/A in reliance
upon the authority of that firm as experts in accounting and auditing. We have
not been able to obtain, after reasonable efforts, the written consent of Arthur
Andersen LLP to our naming that firm in this prospectus as an expert or
including its audit report as required by Section 7 of the Securities Act of
1933, as amended, and we have not included Arthur Andersen LLP's consent in
reliance on Rule 437a under the Securities Act. As a result, you will not be
able to recover against Arthur Andersen LLP under Section 11(a)(4) of the
Securities Act, if applicable, for any untrue statement of a material fact
contained in the Charles E. Smith Commercial Realty L.P. financial statements
audited by Arthur Andersen LLP or any omission to state a material fact required
to be stated in those financial statements or necessary to make the statements
in them not misleading. Moreover, the events arising out of Arthur Andersen
LLP's conviction in June 2002 on a federal charge of obstruction of justice
relating to the audits of Enron Corp. may adversely affect the ability of Arthur
Andersen LLP to satisfy any successful claim. See "Risk Factors -- We Have Not
Obtained the Consent of Arthur Andersen LLP for the Use of Its Previously Issued
Audit Report Regarding the Financial Statements of Charles E. Smith Commercial
Realty L.P., and That May Limit Your Ability to Recover From Arthur Andersen LLP
With Respect to That Audit. Our Ability to Recover From That Firm for That Audit
May Also Be Limited" above for more information about this risk.
41
VALIDITY OF THE COMMON SHARES
The validity of the common shares issued under this prospectus will be
passed upon for Vornado by Ballard Spahr Andrews & Ingersoll, LLP, Baltimore,
Maryland, Maryland counsel to Vornado.
42
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are as
follows:
SEC registration fee................................ $ 3,922
Printing and engraving expenses..................... $ 50,000
Legal fees and disbursements........................ $ 50,000
Accounting fees and disbursements................... $ 50,000
Transfer agent's and depositary's fees and
disbursements.................................... $ 25,000
Blue Sky fees and expenses.......................... $ 15,000
Miscellaneous (including listing fees).............. $ 25,000
----------
Total............................................... $ 218,922
==========
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Maryland REIT Law ("MRL") permits a Maryland real estate investment
trust to include in its declaration of trust a provision limiting the liability
of its trustees and officers to the trust and its shareholders for money damages
except for liability resulting from (i) actual receipt of an improper benefit or
profit in money, property or services or (ii) active and deliberate dishonesty
established by a final judgment as being material to the cause of action.
Vornado's Declaration of Trust includes such a provision eliminating such
liability to the maximum extent permitted by the MRL.
Vornado's Declaration of Trust authorizes it to indemnify, and to pay
or reimburse reasonable expenses to, as such expenses are incurred by, each
trustee or officer (including any person who, while a trustee of Vornado, is or
was serving at the request of Vornado as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan) from all claims and
liabilities to which such person may become subject by reason of his being or
having been a trustee, officer, employee or agent.
Vornado's Bylaws require it to indemnify (a) any trustee or officer or
any former trustee or officer (including and without limitation, any individual
who, while a trustee or officer and at the request of Vornado, serves or has
served another corporation, partnership, joint venture, trust, employee benefit
plan or any other enterprise as a director, officer, partner or trustee of such
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) who has been successful, on the merits or otherwise, in the defense
of a proceeding to which he was made a party by reason of such status, against
reasonable expenses incurred by him in connection with the proceeding and (b)
any present or former trustee or officer against any claim or liability to which
he may become subject by reason of such status unless it is established that (i)
his act or omission was material to the matter giving rise to the proceeding and
was committed in bad faith or was the result of active and deliberate
dishonesty, (ii) he actually received an improper personal benefit in money,
property or services or (iii) in the case of a criminal proceeding, he had
reasonable cause to believe that his act or omission was unlawful. In addition,
Vornado's Bylaws require it to pay or reimburse, in advance of final disposition
of a proceeding, reasonable expenses incurred by a present or former trustee or
officer made a party to a proceeding by reason of such status upon Vornado's
receipt of (i) a written affirmation by the trustee or officer of his good faith
belief that he has met the applicable standard of conduct necessary for
indemnification by Vornado and (ii) a written undertaking by him or on his
behalf to repay the amount paid or reimbursed by Vornado if
II-1
it shall ultimately be determined that the applicable standard of conduct was
not met. Vornado's Bylaws also (i) permit Vornado to provide indemnification and
payment or reimbursement of expenses to a present or former trustee or officer
who served a predecessor of Vornado in such capacity and to any employee or
agent of Vornado or a predecessor of Vornado, (ii) provide that any
indemnification or payment or reimbursement of the expenses permitted by the
Bylaws shall be furnished in accordance with the procedures provided for
indemnification or payment or reimbursement of expenses, as the case may be,
under Section 2-418 of the Maryland General Corporation Law (the "MGCL") for
directors of Maryland corporations and (iii) permit Vornado to provide such
other and further indemnification or payment or reimbursement of expenses as may
be permitted by the MGCL, as in effect from time to time, for directors of
Maryland corporations.
The MRL permits a Maryland real estate investment trust to indemnify
and advance expenses to its trustees, officers, employees and agents to the same
extent as permitted by the MGCL for directors and officers of Maryland
corporations. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. However, under the MGCL, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the corporation and (b) a written undertaking by him or on
his behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
The Second Amended and Restated Agreement of Limited Partnership, dated
as of October 20, 1997, as amended (the "Partnership Agreement"), of the
operating partnership provides, generally, for the indemnification of an
"Indemnitee" against losses, claims, damages, liabilities, expenses (including,
without limitation, attorneys' fees and other legal fees and expenses),
judgments, fines, settlements and other amounts that relate to the operations of
the operating partnership unless it is established that (i) the act or omission
of the Indemnitee was material and either was committed in bad faith or pursuant
to active and deliberate dishonesty, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
any criminal proceeding, the Indemnitee had reasonable cause to believe that the
act or omission was unlawful. For this purpose, the term "Indemnitee" includes
(i) any person made a party to a proceeding by reason of its status as (A) the
general partner of the operating partnership, (B) a limited partner of the
operating partnership or (C) an officer of the operating partnership or a
trustee, officer or shareholder of Vornado and (ii) such other persons
(including affiliates of Vornado or the operating partnership) as Vornado may
designate from time to time in its discretion. Any such indemnification will be
made only out of assets of the operating partnership, and in no event may an
Indemnitee subject the limited partners of the operating partnership to personal
liability by reason of the indemnification provisions in the Partnership
Agreement.
Pursuant to the registration rights agreements between Vornado and
certain of the holders of units redeemable for the shares registered hereunder,
each unit holder named therein (and each permitted assignee of such holder, on a
several basis) agrees to indemnify and hold harmless Vornado, and each of its
trustees/directors and officers (including each trustee/director and officer of
Vornado who signed a registration statement), and each person, if any, who
controls Vornado within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (i) against any and all loss, liability, claim,
damage and expense (and in the case of unit holders who were issued units in
connection with Vornado's
II-2
acquisition of equity interests in the Newkirk partnerships, any judgment)
whatsoever, as incurred, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement (or any amendment thereto) pursuant to which the common shares
issuable to the unit holders upon redemption of their units were registered
under the Securities Act, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto), including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (ii) against any and
all loss, liability, claim, damage and expense (and in the case of unit holders
who were issued units in connection with Vornado's acquisition of equity
interests in the Newkirk partnerships, any judgment) whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of such unit holder; and (iii) against any
and all expenses whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided, however,
that such indemnity shall only apply with respect to any loss, liability, claim,
damage or expense (or in the case of unit holders who were issued units in
connection with Vornado's acquisition of equity interests in the Newkirk
partnerships, any judgment) to the extent arising out of (A) any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Vornado by such
unit holder expressly for use in the registration statement (or any amendment
thereto) or the prospectus (or any amendment or supplement thereto) or (B) such
unit holder's failure to deliver an amended or supplemental prospectus if such
loss, liability, claim, damage or expense (or in the case of unit holders who
were issued units in connection with Vornado's acquisition of equity interests
in the Newkirk partnerships, such judgment) would not have arisen had such
delivery occurred. A unit holder and any permitted assignee shall not be
required to indemnify Vornado, its officers, trustees or control persons with
respect to any amount in excess of the amount of the total proceeds to such unit
holder or permitted assignee, as the case may be, from sales under the
registration statement of such unit holder's shares issuable upon redemption of
units, and no unit holder shall be liable under the indemnification provision
for any statements or omissions of any other unit holder.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to officers, trustees or controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, Vornado has been
advised that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy and, therefore, unenforceable. In
addition, indemnification may be limited by state securities laws. Vornado has
purchased liability insurance for the purpose of providing a source of funds to
pay the indemnification described above.
ITEM 16. EXHIBITS.
EXHIBIT NO. EXHIBIT
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3.1 -- Amended and Restated Declaration of Trust of Vornado Realty Trust, as
filed with the State Department of Assessment and Taxation of Maryland
on April 16, 1993 - Incorporated by reference to Exhibit 3(a)
of Vornado Realty Trust's Registration Statement on Form S-4
(File No. 33-60286), filed on April 15, 1993.
3.2 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on May 23, 1996 - Incorporated by reference to
Exhibit 3.2 to Vornado
II-3
EXHIBIT NO. EXHIBIT
----------- -------
Realty Trust's Annual Report on Form 10-K for the year ended
December 31, 2001(File No. 001-11954).
3.3 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 3, 1997 - Incorporated by reference to
Exhibit 3.3 to Vornado Realty Trust's Annual Report on Form
10-K for the year ended December 31, 2001 (File No.
001-11954).
3.4 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on October 14, 1997 - Incorporated by reference to
Exhibit 3.2 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.5 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 22, 1998 - incorporated by reference to
Exhibit 3.1 of Vornado's Current Report on Form 8-K dated as
of April 22, 1998 (File No. 1-11954), filed on April 28, 1998.
3.6 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on November 24, 1999 - Incorporated by reference to
Exhibit 3.4 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.7 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 20, 2000 - Incorporated by reference to
Exhibit 3.5 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.8 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on September 14, 2000 - Incorporated by reference to
Exhibit 4.6 to Vornado's Registration Statement on Form S-8
(File No. 333-68462), filed on August 27, 2001.
3.9 -- Articles of Amendment of Declaration of Trust of Vornado dated May 31,
2002, as filed with the Department of Assessments and Taxation of the
State of Maryland on June 13, 2002 - Incorporated by reference
to Exhibit 3.9 to Vornado Realty Trust's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (File No.
001-11954).
3.10 -- Articles of Amendment of Declaration of Trust of Vornado dated June 6,
2002, as filed with the Department of Assessments and Taxation of the
State of Maryland on June 13, 2002 - Incorporated by reference
to Exhibit 3.10 to Vornado Realty Trust's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (File No.
001-11954).
3.11 -- Articles Supplementary Classifying Vornado's $3.25 Series A Preferred
Shares of Beneficial Interest, liquidation preference $50.00 per share -
Incorporated by reference to Exhibit 4.1 to Vornado's Current
Report on Form 8-K, dated April 3, 1997 (File No. 001-11954),
filed on April 8, 1997
3.12 -- Articles Supplementary Classifying Vornado Realty Trust's $3.25 Series A
Convertible Preferred Shares of Beneficial Interest, as filed with the
State Department of Assessments and Taxation of Maryland on
December 15, 1997- Incorporated by reference to Exhibit 3.10
to Vornado Realty Trust's Annual Report on Form 10-K for the
year ended December 31, 2001 (File No. 001-11954).
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EXHIBIT NO. EXHIBIT
----------- -------
3.13 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-1
8.5% Cumulative Redeemable Preferred Shares of Beneficial Interest, no
par value - Incorporated by reference to Exhibit 3.1 to
Vornado Realty Trust's Current Report on Form 8-K, dated
November 12, 1998 (File No. 001-11954), filed on November 30,
1998
3.14 -- Articles Supplementary Classifying Additional Series D-1 8.5% Preferred
Shares of Beneficial Interest, liquidation preference $25.00 per share,
no par value - Incorporated by reference to Exhibit 3.2 to
Vornado Realty Trust's Current Report on Form 8-K/A, dated
November 12, 1998 (File No. 001-11954), filed on February 9,
1999.
3.15 -- Articles Supplementary Classifying 8.5% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest, liquidation preference $25.00
per share, no par value - Incorporated by reference to Exhibit
3.3 to Vornado Realty Trust's Current Report on Form 8-K,
dated March 3, 1999 (File No. 001-11954), filed on March 17,
1999.
3.16 -- Articles Supplementary Classifying Vornado Realty Trust's Series C 8.5%
Cumulative Redeemable Preferred Shares of Beneficial Interest,
liquidation preference $25.00 per share, no par value -
Incorporated by reference to Exhibit 3.7 to Vornado Realty
Trust's Registration Statement on Form 8-A (File No.
001-11954), filed on May 19, 1999.
3.17 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-2
8.375% Cumulative Redeemable Preferred Shares, dated as of May 27, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on May 27, 1999 - Incorporated by reference to
Exhibit 3.1 to Vornado Realty Trust's Current Report on Form
8-K, dated May 27, 1999 (File No. 001-11954), filed on July 7,
1999.
3.18 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-3
8.25% Cumulative Redeemable Preferred Shares, dated September 3, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on September 3, 1999 - Incorporated by reference
to Exhibit 3.1 to Vornado Realty Trust's Current Report on
Form 8-K, dated September 3, 1999 (File No. 001-11954), filed
on October 25, 1999.
3.19 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-4
8.25% Cumulative Redeemable Preferred Shares, dated September 3, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on September 3, 1999 - Incorporated by reference
to Exhibit 3.2 to Vornado Realty Trust's Current Report on
Form 8-K, dated September 3, 1999 (File No. 001-11954), filed
on October 25, 1999.
3.20 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-5
8.25% Cumulative Redeemable Preferred Shares - Incorporated by reference
to Exhibit 3.1 to Vornado Realty Trust's Current Report on Form 8-K,
dated November 24, 1999 (File No. 001-11954), filed on
December 23, 1999.
3.21 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-6
8.25% Cumulative Redeemable Preferred Shares, dated May 1, 2000, as
filed with the State Department of Assessments and Taxation of
Maryland on May 1, 2000 - Incorporated by reference to Exhibit
3.1 to Vornado Realty Trust's Current Report on Form 8-K,
dated May 1, 2000 (File No. 001-11954), filed May 19, 2000.
3.22 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-7
8.25% Cumulative Redeemable Preferred Shares, dated May 25, 2000, as
filed with the State Department of Assessments and Taxation of
Maryland
II-5
EXHIBIT NO. EXHIBIT
----------- -------
on June 1, 2000 - Incorporated by reference to Exhibit 3.1 to
Vornado Realty Trust's Current Report on Form 8-K, dated May
25, 2000 (File No. 001-11954), filed on June 16, 2000.
3.23 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-8
8.25% Cumulative Redeemable Preferred Shares - Incorporated by reference
to Exhibit 3.1 to Vornado Realty Trust's Current Report on Form 8-K,
dated December 8, 2000 (File No. 001-11954), filed on December 28, 2000.
3.24 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-9
8.75% Preferred Shares, dated September 21, 2001, as filed with the
State Department of Assessments and Taxation of Maryland on
September 25, 2001 - Incorporated by reference to Exhibit 3.1
to Vornado Realty Trust's Current Report on Form 8-K (File No.
001-11954), filed on October 12, 2001.
3.25 -- Amended and Restated Bylaws of Vornado Realty Trust, as amended on March
2, 2000 - Incorporated by reference to Exhibit 3.12 to Vornado Realty
Trust's Annual Report on Form 10-K for the year ended December
31, 1999 (File No. 001-11954), filed on March 9, 2000.
4.1 -- Instruments defining the rights of security holders (see Exhibits 3.1,
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
3.15, 3.16, 3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 3.24 and
3.25 of this registration statement).
4.2 -- Specimen certificate evidencing Vornado Realty Trust's Common Shares of
beneficial interest, par value $.04 per share - incorporated by
reference to Exhibit 4.1 of Amendment No. 1 to Vornado Realty Trust's
Registration Statement on Form S-3 (File No. 33-62395), filed on October
26, 1995.
5.1 -- Opinion of Ballard Spahr Andrews & Ingersoll, LLP
8.1 -- Tax opinion of Sullivan & Cromwell
8.2 -- Tax opinion of Shearman & Sterling
10.1 -- Registration Rights Agreement, dated as of July 23, 1998, by and between
Vornado and Gould Investors, L.P.
10.2 -- Registration Rights Agreement, dated July 21, 1999, between Vornado and
the unit holders named therein
10.3 -- Form of Registration Rights Agreement between Vornado and the Newkirk
partners
15.1 -- Letter Regarding Unaudited Interim Financial Information
23.1 -- Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in its
opinion filed as Exhibit 5.1)
23.2 -- Consent of Sullivan & Cromwell (included in its opinion filed as Exhibit
8.1)
23.3 -- Consent of Shearman & Sterling (included in its opinion filed as Exhibit
8.2)
23.4 -- Consent of Deloitte & Touche LLP
24.1 -- Power of Attorney (included on signature page)
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
II-6
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on December 26, 2002.
VORNADO REALTY TRUST,
A Maryland real estate investment trust
By: /s/ Steven Roth
--------------------------
Steven Roth
Chairman of the Board of Trustees
(Principal Executive Officer)
II-8
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Steven Roth, Michael D. Fascitelli and Joseph Macnow, and each of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective amendments,
to this registration statement, to any related Rule 462(b) registration
statement and to any other documents filed with the Securities and Exchange
Commission and to file the same, with all exhibits to the registration statement
and other documents in connection with the registration statement, with the
Securities and Exchange Commission or any other regulatory authority, grants to
the attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, and ratifies and confirms all that the attorney-in-fact and agent, or
his substitute, may lawfully do or cause to be done by virtue of this power of
attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
By /s/ Steven Roth Chairman of the Board of December 26, 2002
------------------------------------ Trustees (Principal Executive
(Steven Roth) Officer)
By: /s/ Michael D. Fascitelli President and Trustee December 26, 2002
------------------------------------
(Michael D. Fascitelli)
By: /s/ Joseph Macnow Executive Vice President - December 26, 2002
------------------------------------ Finance and Administration
(Joseph Macnow) and Chief Financial Officer
(Principal Financial and
Accounting Officer)
By: /s/ Robert P. Kogod Trustee December 26, 2002
------------------------------------
(Robert P. Kogod)
By: /s/ David Mandelbaum Trustee December 26, 2002
------------------------------------
(David Mandelbaum)
By: /s/ Stanley Simon Trustee December 26, 2002
------------------------------------
(Stanley Simon)
By: /S/ Robert H. Smith Trustee December 26, 2002
------------------------------------
(Robert H. Smith)
By: /s/ Ronald G. Targan Trustee December 26, 2002
------------------------------------
(Ronald G. Targan)
By: /s/ Richard West Trustee December 26, 2002
------------------------------------
(Richard West)
By: /s/ Russell B. Wight, Jr. Trustee December 26, 2002
------------------------------------
(Russell B. Wight, Jr.)
II-9
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
----------- -------
3.1 -- Amended and Restated Declaration of Trust of Vornado Realty Trust, as
filed with the State Department of Assessment and Taxation of Maryland
on April 16, 1993 - Incorporated by reference to Exhibit 3(a)
of Vornado Realty Trust's Registration Statement on Form S-4
(File No. 33-60286), filed on April 15, 1993.
3.2 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on May 23, 1996 - Incorporated by reference to Exhibit 3.2
to Vornado Realty Trust's Annual Report on Form 10-K for the year
ended December 31, 2001(File No. 001-11954).
3.3 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 3, 1997 - Incorporated by reference to
Exhibit 3.3 to Vornado Realty Trust's Annual Report on Form
10-K for the year ended December 31, 2001 (File No.
001-11954).
3.4 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on October 14, 1997 - Incorporated by reference to
Exhibit 3.2 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.5 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 22, 1998 - incorporated by reference to
Exhibit 3.1 of Vornado's Current Report on Form 8-K dated as
of April 22, 1998 (File No. 1-11954), filed on April 28, 1998.
3.6 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on November 24, 1999 - Incorporated by reference to
Exhibit 3.4 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.7 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on April 20, 2000 - Incorporated by reference to
Exhibit 3.5 to Vornado Realty Trust's Registration Statement
on Form S-3 (File No. 333-36080), filed on May 2, 2000.
3.8 -- Articles of Amendment of Declaration of Trust of Vornado Realty Trust,
as filed with the State Department of Assessments and Taxation of
Maryland on September 14, 2000 - Incorporated by reference to
Exhibit 4.6 to Vornado's Registration Statement on Form S-8
(File No. 333-68462), filed on August 27, 2001.
3.9 -- Articles of Amendment of Declaration of Trust of Vornado dated May 31,
2002, as filed with the Department of Assessments and Taxation of the
State of Maryland on June 13, 2002 - Incorporated by reference
to Exhibit 3.9 to Vornado Realty Trust's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (File No.
001-11954).
3.10 -- Articles of Amendment of Declaration of Trust of Vornado dated June 6,
2002, as filed with the Department of Assessments and Taxation of the
State of Maryland on June 13, 2002 - Incorporated by reference
to Exhibit
EXHIBIT NO. EXHIBIT
----------- -------
3.10 to Vornado Realty Trust's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2002 (File No. 001-11954).
3.11 -- Articles Supplementary Classifying Vornado's $3.25 Series A Preferred
Shares of Beneficial Interest, liquidation preference $50.00 per share -
Incorporated by reference to Exhibit 4.1 to Vornado's Current
Report on Form 8-K, dated April 3, 1997 (File No. 001-11954),
filed on April 8, 1997
3.12 -- Articles Supplementary Classifying Vornado Realty Trust's $3.25 Series A
Convertible Preferred Shares of Beneficial Interest, as filed with the
State Department of Assessments and Taxation of Maryland on
December 15, 1997- Incorporated by reference to Exhibit 3.10
to Vornado Realty Trust's Annual Report on Form 10-K for the
year ended December 31, 2001 (File No. 001-11954).
3.13 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-1
8.5% Cumulative Redeemable Preferred Shares of Beneficial Interest, no
par value - Incorporated by reference to Exhibit 3.1 to
Vornado Realty Trust's Current Report on Form 8-K, dated
November 12, 1998 (File No. 001-11954), filed on November 30,
1998
3.14 -- Articles Supplementary Classifying Additional Series D-1 8.5% Preferred
Shares of Beneficial Interest, liquidation preference $25.00 per share,
no par value - Incorporated by reference to Exhibit 3.2 to
Vornado Realty Trust's Current Report on Form 8-K/A, dated
November 12, 1998 (File No. 001-11954), filed on February 9,
1999.
3.15 -- Articles Supplementary Classifying 8.5% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest, liquidation preference $25.00
per share, no par value - Incorporated by reference to Exhibit
3.3 to Vornado Realty Trust's Current Report on Form 8-K,
dated March 3, 1999 (File No. 001-11954), filed on March 17,
1999.
3.16 -- Articles Supplementary Classifying Vornado Realty Trust's Series C 8.5%
Cumulative Redeemable Preferred Shares of Beneficial Interest,
liquidation preference $25.00 per share, no par value -
Incorporated by reference to Exhibit 3.7 to Vornado Realty
Trust's Registration Statement on Form 8-A (File No.
001-11954), filed on May 19, 1999.
3.17 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-2
8.375% Cumulative Redeemable Preferred Shares, dated as of May 27, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on May 27, 1999 - Incorporated by reference to
Exhibit 3.1 to Vornado Realty Trust's Current Report on Form
8-K, dated May 27, 1999 (File No. 001-11954), filed on July 7,
1999.
3.18 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-3
8.25% Cumulative Redeemable Preferred Shares, dated September 3, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on September 3, 1999 - Incorporated by reference
to Exhibit 3.1 to Vornado Realty Trust's Current Report on
Form 8-K, dated September 3, 1999 (File No. 001-11954), filed
on October 25, 1999.
3.19 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-4
8.25% Cumulative Redeemable Preferred Shares, dated September 3, 1999,
as filed with the State Department of Assessments and Taxation
of Maryland on September 3, 1999 - Incorporated by reference
to Exhibit 3.2 to Vornado Realty Trust's Current Report on
Form 8-K, dated September 3, 1999 (File No. 001-11954), filed
on October 25, 1999.
3.20 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-5
8.25% Cumulative Redeemable Preferred Shares - Incorporated by
EXHIBIT NO. EXHIBIT
----------- -------
reference to Exhibit 3.1 to Vornado Realty Trust's Current
Report on Form 8-K, dated November 24, 1999 (File No.
001-11954), filed on December 23, 1999.
3.21 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-6
8.25% Cumulative Redeemable Preferred Shares, dated May 1, 2000, as
filed with the State Department of Assessments and Taxation of
Maryland on May 1, 2000 - Incorporated by reference to Exhibit
3.1 to Vornado Realty Trust's Current Report on Form 8-K,
dated May 1, 2000 (File No. 001-11954), filed May 19, 2000.
3.22 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-7
8.25% Cumulative Redeemable Preferred Shares, dated May 25, 2000, as
filed with the State Department of Assessments and Taxation of
Maryland on June 1, 2000 - Incorporated by reference to
Exhibit 3.1 to Vornado Realty Trust's Current Report on Form
8-K, dated May 25, 2000 (File No. 001-11954), filed on June
16, 2000.
3.23 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-8
8.25% Cumulative Redeemable Preferred Shares - Incorporated by reference
to Exhibit 3.1 to Vornado Realty Trust's Current Report on Form 8-K,
dated December 8, 2000 (File No. 001-11954), filed on December 28, 2000.
3.24 -- Articles Supplementary Classifying Vornado Realty Trust's Series D-9
8.75% Preferred Shares, dated September 21, 2001, as filed with the
State Department of Assessments and Taxation of Maryland on
September 25, 2001 - Incorporated by reference to Exhibit 3.1
to Vornado Realty Trust's Current Report on Form 8-K (File No.
001-11954), filed on October 12, 2001.
3.25 -- Amended and Restated Bylaws of Vornado Realty Trust, as amended on March
2, 2000 - Incorporated by reference to Exhibit 3.12 to Vornado Realty
Trust's Annual Report on Form 10-K for the year ended December
31, 1999 (File No. 001-11954), filed on March 9, 2000.
4.1 -- Instruments defining the rights of security holders (see Exhibits 3.1,
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
3.15, 3.16, 3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 3.24 and
3.25 of this registration statement).
4.2 -- Specimen certificate evidencing Vornado Realty Trust's Common Shares of
beneficial interest, par value $.04 per share - incorporated by
reference to Exhibit 4.1 of Amendment No. 1 to Vornado Realty Trust's
Registration Statement on Form S-3 (File No. 33-62395), filed on October
26, 1995.
5.1 -- Opinion of Ballard Spahr Andrews & Ingersoll, LLP
8.1 -- Tax opinion of Sullivan & Cromwell
8.2 -- Tax opinion of Shearman & Sterling
10.1 -- Registration Rights Agreement, dated as of July 23, 1998, by and between
Vornado and Gould Investors, L.P.
10.2 -- Registration Rights Agreement, dated July 21, 1999, between Vornado and
the unit holders named therein
10.3 -- Form of Registration Rights Agreement between Vornado and the Newkirk
partners
15.1 -- Letter Regarding Unaudited Interim Financial Information
23.1 -- Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in its
opinion filed as Exhibit 5.1)
23.2 -- Consent of Sullivan & Cromwell (included in its opinion filed as Exhibit
8.1)
EXHIBIT NO. EXHIBIT
----------- -------
23.3 -- Consent of Shearman & Sterling (included in its opinion filed as Exhibit
8.2)
23.4 -- Consent of Deloitte & Touche LLP
24.1 -- Power of Attorney (included on signature page)