<PAGE> 1
As Filed Pursuant to Rule 424(b)(5)
Registration Nos. 33-52441; 33-62395
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED DECEMBER 26, 1995
1,500,000 SHARES
VORNADO [LOGO]
COMMON SHARES OF BENEFICIAL INTEREST
----------------------
The last reported sale price of the Common Shares, which are quoted under
the symbol "VNO", on the New York Stock Exchange on December 17, 1996 was
$51 5/8 per share. See "Price Range of the Common Shares and Distributions".
In order to maintain its qualification as a real estate investment trust
for federal income tax purposes ("REIT"), ownership by any person of more than
6.7% of the outstanding Common Shares is restricted, with certain exceptions.
See "Capitalization".
SEE "RISK FACTORS" BEGINNING ON PAGE 3 OF THE ACCOMPANYING PROSPECTUS FOR
CERTAIN CONSIDERATIONS RELEVANT TO AN INVESTMENT IN THE COMMON SHARES.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
Goldman, Sachs & Co. has agreed to purchase from the Company the Common
Shares offered hereby for an aggregate purchase price of $73,560,000. The
Company has granted Goldman, Sachs & Co. an option for 30 days to purchase up to
225,000 additional Common Shares at a purchase price of $49.04 per share, solely
to cover over-allotments. If such option is exercised in full, the total
proceeds to the Company will be $84,594,000, before deducting expenses payable
by the Company, estimated to be approximately $500,000.
Goldman, Sachs & Co. propose to offer the Common Shares offered hereby from
time to time for sale in one or more transactions on the New York Stock
Exchange, in the over-the-counter market or otherwise, at market prices
prevailing at the time of sale, at prices related to prevailing market prices,
or at negotiated prices, subject to prior sale when, as and if delivered to and
accepted by Goldman, Sachs & Co. See "Underwriting".
The Company has agreed to indemnify Goldman, Sachs & Co. against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
------------------------
The shares are offered by Goldman, Sachs & Co., as specified herein,
subject to receipt and acceptance by them and subject to their right to reject
any order in whole or in part. It is expected that the certificates for the
shares will be ready for delivery in New York, New York on or about December 23,
1996, against payment therefor in immediately available funds.
GOLDMAN, SACHS & CO.
------------------------
The date of this Prospectus Supplement is December 18, 1996.
<PAGE> 2
THE COMPANY
The Company is a fully-integrated real estate investment trust which owns,
leases, develops, redevelops and manages retail and industrial properties
primarily located in the Midatlantic and Northeast regions of the United States.
The Company's primary focus is on shopping centers. The Company began operations
through a predecessor in 1936. The Company (or a predecessor) has been listed on
the New York Stock Exchange for over 30 years. Prior to 1981, the Company
operated the Two Guys discount department store business, primarily on real
estate owned by the Company. The current management, which assumed control of
the Company in 1980, transformed the Company from a retailer to a fully-
integrated real estate operating company. As of September 30, 1996, the Company
owned 57 shopping centers in seven states containing 10.0 million square feet,
including 1.2 million square feet built by tenants on land leased from the
Company. Further, the Company owns eight warehouse/industrial properties in New
Jersey containing 2.0 million square feet, one office building in New Jersey
containing 100,000 square feet and a 50% interest in an office building in New
York City containing 150,000 square feet.
The Company's shopping centers generally are located on major regional
highways in mature, densely populated areas. The Company believes its shopping
centers attract consumers from a regional, rather than a neighborhood,
marketplace because of their locations on regional highways and the high
percentage of square feet dedicated to large stores. The occupancy rate of the
Company's shopping center properties was 91% as of September 30, 1996, and has
been over 90% in each of the past five years.
The following table summarizes the Company's real estate portfolio as of
September 30, 1996:
<TABLE>
<CAPTION>
OCCUPANCY RATE
BUILDING
NUMBER OF SQUARE --------------
PROPERTIES FEET 1996 1995(1)
--------- ---------- ---- -------
<S> <C> <C> <C> <C>
Strip Shopping Centers:
New Jersey.................................... 25 4,839,000 96% 94%
Other......................................... 32 5,180,000 86% 89%
--- ----------
Total Strip Shopping Centers............... 57 10,019,000 91% 91%
Industrial/Office Buildings..................... 10 2,342,000 80% 81%
--- ----------
Total Portfolio....................... 67 12,361,000 89% 89%
=== ==========
</TABLE>
- ---------------
(1) As of December 31, 1995
On December 2, 1996, Michael D. Fascitelli became the Company's President
and was elected to the Company's Board of Trustees. Mr. Fascitelli was formerly
a partner of Goldman, Sachs & Co. in charge of its real estate practice and has
more than 11 years of broad real estate experience, including acquisitions,
divestitures, development and capital markets. Prior to joining Goldman, Sachs &
Co., he was a consultant at McKinsey & Co. Mr. Fascitelli has entered into a
five year employment contract with the Company. He was also elected a director
of Alexander's, Inc. ("Alexander's").
S-2
<PAGE> 3
The Company owns 29.3% of the outstanding common stock of Alexander's,
which has nine properties in the New York City region. Interstate Properties (a
New Jersey general partnership of which Steven Roth, the Company's Chairman of
the Board and Chief Executive Officer, is the managing general partner) owns
27.1% of the outstanding common stock of Alexander's. The Company expects to
provide a portion of the financing required for Alexander's redevelopment
projects, including the projects at the Lexington Avenue Property and the
Paramus Property:
- The Lexington Avenue Property comprises the entire square block bounded
by Lexington Avenue, East 59th Street, Third Avenue and East 58th Street
in Manhattan, New York. This Property is owned by a limited partnership in
which Alexander's is the general partner and owns approximately 92% of the
limited partnership interests. Alexander's redevelopment plans include
razing the existing building and developing a large, multi-use building,
requiring capital expenditures in excess of $300 million. No development
decisions have been finalized.
- The Paramus Property consists of 39.3 acres of land located in Paramus,
New Jersey. Approximately 9 acres located on the Property's periphery are
subject to condemnation by the State of New Jersey. Alexander's and the
New Jersey Department of Transportation (the "DOT") are negotiating an
agreement, pursuant to which the DOT will pay approximately $14.7 million
for the property subject to condemnation and grant Alexander's the right
to develop up to 550,000 square feet on the remaining acreage. Alexander's
is considering razing the former store building and developing a two or
three level shopping center on the site. The estimated total cost of such
redevelopment is between $60 million and $70 million. The agreement with
the DOT is subject to negotiation of final documentation and to certain
municipal approvals. No development decisions have been finalized.
THE OFFERING
<TABLE>
<S> <C>
Common Shares offered hereby......................................... 1,500,000 shares (1)
Common Shares to be outstanding after the Offering................... 26,084,037 shares(2)
New York Stock Exchange Symbol....................................... "VNO"
</TABLE>
- ---------------
(1) Assumes the underwriter's over-allotment option is not exercised.
(2) Excludes 2,073,566 shares reserved for issuance upon exercise of outstanding
options and 459,770 shares held in a trust for the benefit of Mr.
Fascitelli.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Shares offered
hereby are estimated to be approximately $73.1 million ($84.1 million if the
underwriter's over-allotment option is exercised in full) after deduction of the
underwriting discount and expenses payable by the Company. The net proceeds will
be used for general corporate purposes, including investments in real estate
through the acquisition of properties, and the financing of Alexander's
redevelopment projects, including the redevelopment of the Lexington Avenue
Property and/or the Paramus Property. The Company currently has no agreements,
commitments or formal understandings with respect to any acquisitions. Pending
such use, the net proceeds may be invested in short-term income-producing
investments.
S-3
<PAGE> 4
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
September 30, 1996 and as adjusted to give effect to the issuance of the Common
Shares offered hereby. See the consolidated financial statements and notes
thereto and other financial information included in the documents incorporated
herein by reference.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
----------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Debt:
Notes and mortgages payable......................................... $232,572 $ 232,572
Amounts due under revolving credit facility......................... 10,000 10,000
-------- ----------
242,572 242,572
-------- ----------
Shareholders' equity:
Preferred shares of beneficial interest:
no par value per share; authorized 1,000,000 shares; issued,
none............................................................ -- --
Common shares of beneficial interest(1):
$.04 par value per share; authorized, 50,000,000 shares; issued,
24,536,719 and 26,036,719 shares, as adjusted(2)(3)............. 981 1,041
Additional capital.................................................. 284,586 357,586
Accumulated deficit................................................. (77,958) (77,958)
-------- ----------
207,609 280,669
Unrealized loss on securities available for sale.................... (1,535) (1,535)
Due from officers for purchase of common shares of beneficial
interest......................................................... (5,107) (5,107)
-------- ----------
200,967 274,027
-------- ----------
Total capitalization........................................ $443,539 $ 516,599
======== ==========
</TABLE>
- ---------------
(1) In connection with the issuance of options to Mr. Fascitelli, the Board of
Trustees adopted a resolution raising the Common Shares Beneficial Ownership
Limit (as defined in the accompanying Prospectus) from 2.0% to 6.7% of the
outstanding Common Shares. See "Description of Shares of Beneficial
Interest -- Description of Common Shares -- Restrictions on Ownership" in
the accompanying Prospectus.
(2) Assumes the underwriter's over-allotment option is not exercised.
(3) Excludes (i) 2,073,566 shares reserved at December 17, 1996 for issuance
upon exercise of outstanding options, including 1,750,000 options granted to
Mr. Fascitelli upon his appointment as the Company's President and (ii)
459,770 shares held in a trust for the benefit of Mr. Fascitelli.
S-4
<PAGE> 5
PRICE RANGE OF THE COMMON SHARES AND DISTRIBUTIONS
The Common Shares are listed on the NYSE under the symbol "VNO." The
following table sets forth, for the periods indicated, the high and low closing
sale prices of the Common Shares as reported by the NYSE, and the cash dividends
paid per share in such periods.
<TABLE>
<CAPTION>
HIGH LOW DIVIDENDS
------- ------- ---------
<S> <C> <C> <C>
1994
1st Quarter................................................... $ 36.50 $ 31.50 $ .50
2nd Quarter................................................... 37.50 32.25 .50
3rd Quarter................................................... 37.50 34.00 .50
4th Quarter................................................... 35.88 30.50 .50
1995
1st Quarter................................................... $ 36.25 $ 34.25 $ .56
2nd Quarter................................................... 36.00 32.63 .56
3rd Quarter................................................... 39.00 34.75 .56
4th Quarter................................................... 37.88 34.38 .56
1996
1st Quarter................................................... $ 38.38 $ 35.63 $ .61
2nd Quarter................................................... 41.50 37.13 .61
3rd Quarter................................................... 42.13 40.50 .61
4th Quarter (through December 17, 1996)....................... 52.63 40.50
</TABLE>
The current annualized dividend rate is $2.44 per Common Share. Future
dividends by the Company will be at the discretion of the Board of Trustees and
will depend on the actual cash flow of the Company, its earnings, financial
condition, capital requirements, the annual distribution requirements under the
REIT provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
and such other factors as the Board of Trustees deems relevant. A principal
factor in the determination of dividends is the requirement of the Code that a
REIT distribute at least 95% of its REIT taxable income as determined under the
Code. See "Certain Federal Income Tax Considerations -- Taxation of the Company
as a REIT" in the accompanying Prospectus.
Distributions by the Company to the extent of its current earnings and
profits for federal income tax purposes are taxable to shareholders as ordinary
dividend income. Distributions in excess of earnings and profits generally are
treated as a non-taxable return of capital to the extent of a shareholder's
basis in the Common Shares. A return of capital distribution generally has the
effect of deferring taxation until a shareholder's sale of Common Shares. The
Company has determined that 100% of the dividends paid in 1995 represented
ordinary dividend income to shareholders.
The registrar and transfer agent for the Common Shares is First Union
National Bank.
The approximate number of shareholders of record at December 17, 1996 was
2,000.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
This discussion supplements and, to the extent inconsistent therewith,
supersedes the discussion set forth in the accompanying Prospectus under the
heading "Federal Income Tax Considerations".
In the opinion of Sullivan & Cromwell, commencing with the taxable year
ending December 31, 1993, the Company has been organized and operated in
conformity with the requirements for qualification and taxation as a real estate
investment trust (a "REIT") under the Code, and the Company's proposed method of
operation will enable it to continue to meet the requirements for qualification
and taxation as a REIT under the Code. Investors should be aware, however, that
opinions of counsel are not binding upon the Internal Revenue Service or any
court. It must be emphasized that, in providing its opinion, Sullivan & Cromwell
is relying upon (i) representations received from the Company and (ii) an
opinion of
S-5
<PAGE> 6
Shearman & Sterling as to the REIT qualification of Alexander's, Inc.
("Alexander's"). In providing its opinion, Shearman & Sterling is in turn
relying upon representations received from Alexander's. Qualification and
taxation of the Company and Alexander's as REITs depends upon their ability to
meet, through actual annual operating results, distribution levels, stock
ownership requirements and the various qualification tests imposed under the
Code and discussed in the Prospectus under the heading "Federal Income Tax
Considerations." Accordingly, no assurance can be given that the actual results
of the Company's or Alexander's operations for any particular year will satisfy
such requirements. Neither Sullivan & Cromwell nor Shearman & Sterling will
monitor the compliance of the Company or Alexander's with the requirements for
REIT qualification on an ongoing basis.
The discussion in the accompanying Prospectus under the heading "Taxation
of Holders of Common Shares or Preferred Shares -- U.S. Shareholders -- Taxation
of Tax-Exempt Shareholders" is supplemented by the following discussion. A trust
described in Section 401(a) of the Code and exempt from tax under Section 501(a)
of the Code (a "qualified trust") that holds more than 10 percent (by value) of
the Company's shares at any time during a taxable year when the Company is a
"pension-held REIT" is required to treat as income from an unrelated trade or
business that portion of the dividends received from the Company that
corresponds to the portion of the Company's gross income (less certain direct
expenses) that would be treated as from an unrelated trade or business if the
Company were treated as a qualified trust. For these purposes no treatment as
income from an unrelated trade or business is required unless the portion of the
Company's gross income (less certain direct expenses) that would be treated as
from an unrelated trade or business if the Company were treated as a qualified
trust is at least 5 percent. The Company will be treated as a pension-held REIT
only if, among other requirements, either (x) at least one qualified trust holds
more than 25 percent (by value) of the Company's outstanding shares or (y) one
or more qualified trusts, each of which owns at least 10 percent by value of the
Company's shares, hold in the aggregate more than 50 percent by value of the
Company's outstanding shares. The Company believes that it is not currently a
pension-held REIT.
The discussion in the accompanying Prospectus under the heading "Taxation
of Holders of Common Shares or Preferred Shares -- Non-U.S. Shareholders" is
supplemented by the following discussion. Under United States Treasury
regulations that are proposed to be effective for distributions after 1997 (the
"Proposed Regulations"), a Non-U.S. Shareholder of Common Shares who wishes to
claim the benefit of an applicable treaty rate would be required to satisfy
applicable certification requirements. In addition, under the Proposed
Regulations, in the case of Common Shares held by a foreign partnership, (x) the
certification requirement would generally be applied to the partners of the
partnership and (y) the partnership would be required to provide certain
information, including a United States taxpayer identification number. The
Proposed Regulations also provide certain look-through rules for tiered
partnerships. It is not certain whether, or in what form, the Proposed
Regulations will be adopted as final regulations.
In addition, distributions in excess of current or accumulated earnings and
profits of the Company will not be taxable to a Non-U.S. Shareholder to the
extent that they do not exceed the adjusted basis of the shareholder's Common
Shares, but rather will reduce the adjusted basis of such shareholder's Common
Shares. To the extent that such distributions exceed the adjusted basis of a
Non-U.S. Shareholder's Common Shares, they will give rise to a gain on the sale
or exchange of the Common Shares. If the Common Shares constitute a United
States real property interest ("USRPI") within the meaning of the Foreign
Investment in Real Property Tax Act of 1980 ("FIRPTA"), such gain shall be
subject to 10 percent withholding and may also be subject to tax under FIRPTA.
The Common Shares will not constitute a USRPI so long as the Company is a
"domestically-controlled REIT". The Company believes that it currently is a
domestically-controlled REIT.
S-6
<PAGE> 7
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
and the related Terms Agreement (collectively, the "Underwriting Agreement"),
the Company has agreed to sell to Goldman, Sachs & Co., and Goldman, Sachs & Co.
has agreed to purchase from the Company, 1,500,000 Common Shares.
Under the terms and conditions of the Underwriting Agreement, Goldman,
Sachs & Co. is committed to take and pay for all of the Common Shares offered
hereby, if any are taken.
Goldman, Sachs & Co. propose to offer the Common Shares offered hereby from
time to time for sale in one or more transactions on the New York Stock Exchange
or otherwise, at market prices prevailing at the time of sale, at prices related
to prevailing market prices, or at negotiated prices, subject to prior sale
when, as and if delivered to and accepted by Goldman, Sachs & Co. In connection
with the sale of the Common Shares offered hereby, Goldman, Sachs & Co. may be
deemed to have received compensation from the Company in the form of
underwriting discounts. Goldman, Sachs & Co. may effect such transactions by
selling Common Shares to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from Goldman,
Sachs & Co. and/or the purchasers of such Common Shares for whom they may act as
agents or to whom they may sell as principal.
The Company has granted Goldman, Sachs & Co. an option, exercisable for 30
days after the date of this Prospectus Supplement, to purchase up to 225,000
additional Common Shares solely to cover over-allotments, if any.
Subject to certain exceptions, the Company, Steven Roth, Chairman of the
Board and Chief Executive Officer of the Company and Interstate Properties have
agreed that, during the period beginning from the date of this Prospectus
Supplement and continuing to and including the date 60 days after the date of
this Prospectus Supplement, they will not offer, sell, contract to sell or
otherwise dispose of any securities of the Company (other than pursuant to
employee stock option plans existing, or on the conversion or exchange of
convertible or exchangeable securities outstanding, on the date of this
Prospectus) which are substantially similar to the Common Shares or which are
convertible or exchangeable into securities which are substantially similar to
the Common Shares, without the prior written consent of Goldman, Sachs & Co.,
except for the Common Shares offered in connection with the offering.
The Company has agreed to indemnify Goldman, Sachs & Co. against certain
liabilities, including liabilities under the Securities Act of 1933.
Goldman, Sachs & Co. provides investment banking and other services to the
Company and Alexander's. Mr. Fascitelli, the recently-appointed President of the
Company, was formerly a partner of Goldman, Sachs & Co.
AVAILABLE INFORMATION
The Securities and Exchange Commission (the "Commission") maintains a
website that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission.
The address of the Commission's website is http://www.sec.gov.
VALIDITY OF THE COMMON SHARES
The validity of the Common Shares offered hereby will be passed upon for
the Company by Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland, and for
Goldman, Sachs & Co. by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York. In addition, certain legal matters will be passed upon for the Company by
Sullivan & Cromwell, New York, New York. Skadden, Arps, Slate, Meagher & Flom
LLP and Sullivan & Cromwell will rely upon the opinion of Ballard Spahr Andrews
& Ingersoll with respect to all matters of Maryland law.
S-7
<PAGE> 8
PROSPECTUS
$500,000,000
VORNADO REALTY TRUST
DEBT SECURITIES, PREFERRED SHARES, DEPOSITORY SHARES,
COMMON SHARES AND DEBT WARRANTS
------------------------
Vornado Realty Trust (the "Company") may offer from time to time, together
or separately, in one or more series (i) debt securities ("Debt Securities"),
which may be either senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities"), (ii)
preferred shares of beneficial interest of the Company ("Preferred Shares"),
which may be issued in the form of depositary shares (the "Depositary Shares")
evidenced by depositary receipts, (iii) common shares of beneficial interest of
the Company ("Common Shares") and (iv) warrants to purchase debt securities of
the Company as shall be designated by the Company at the time of the offering
(the "Debt Warrants") (the Debt Securities, Preferred Shares, Common Shares and
Debt Warrants are collectively referred to as the "Securities"), at an aggregate
initial offering price not to exceed U.S. $500,000,000, in amounts, at prices
and on terms to be determined at the time of sale. The Debt Securities,
Preferred Shares, Common Shares and Debt Warrants may be offered separately or
together, in separate series in amounts, at prices and on terms to be set forth
in a supplement to this Prospectus (a "Prospectus Supplement").
The accompanying Prospectus Supplement will set forth with regard to the
particular Securities in respect of which this Prospectus is being delivered (i)
in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, or in any other currency,
currencies or currency unit, including the European Currency Unit), maturity,
rate, if any (which may be fixed or variable), or method of calculation thereof,
time of payment of any interest, any terms for redemption at the option of the
Company or the holder, any terms for sinking fund payments, rank, any conversion
or exchange rights, any listing on a securities exchange, and the initial public
offering price and any other terms in connection with the offering and sale of
such Debt Securities, (ii) in the case of Preferred Shares, the specific title,
the aggregate amount and the stated value, any dividend (including the method of
calculating the payment of dividend), liquidation, redemption, conversion,
voting or other rights and the initial offering price, (iii) in the case of
Common Shares, the number of shares of Common Shares, the initial offering price
and the terms of the offering thereof and (iv) in the case of Debt Warrants, the
duration, purchase price, exercise price and detachability of such Debt
Warrants. The Prospectus Supplement will also contain, as applicable, a
discussion of the material United States Federal income tax considerations
relating to the Securities in respect of which this Prospectus is being
delivered to the extent not contained herein.
The Common Shares of the Company are listed on the New York Stock Exchange
("NYSE") under the symbol "VNO". The Prospectus Supplement will also contain
information, where applicable, as to any listing on a securities exchange of the
Securities covered by such Prospectus Supplement.
------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN FACTORS RELEVANT TO
AN INVESTMENT IN THE SECURITIES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
------------------------
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents. The accompanying
Prospectus Supplement will set forth the names of any underwriters or agents
involved in the sale of the Securities in respect of which this Prospectus is
being delivered, the amounts of Securities, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents. See
"Plan of Distribution" herein.
THE DATE OF THIS PROSPECTUS IS DECEMBER 26, 1995.
<PAGE> 9
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITERS, AGENTS OR DEALERS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER
TO BUY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY AND ITS SUBSIDIARIES
SINCE THE DATE HEREOF OR THE INFORMATION CONTAINED HEREIN IS CORRECT AT ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following regional offices of
the Commission: 7 World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such information can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Company's Common Shares are listed on the New York Stock
Exchange ("NYSE") and similar information can be inspected and copied at the
NYSE, 20 Broad Street, 17th Floor, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). As permitted by
the rules and regulations of the Commission, this Prospectus omits certain of
the information contained in the Registration Statement and reference is hereby
made to the Registration Statement and related exhibits for further information
with respect to the Company and the Securities offered hereby. Statements
contained herein concerning the provisions of any documents filed as an exhibit
to the Registration Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1994 as amended by Form 10-K/A for the year ended December 31, 1994 filed on
December 20, 1995, Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1995, June 30, 1995 and September 30, 1995 and Current Reports
on Form 8-K dated February 6, 1995, April 26, 1995 and June 22, 1995 as amended
by Form 8-K/A dated June 22, 1995 and filed on December 20, 1995 have been filed
by the Company with the Commission and are hereby incorporated by reference into
this Prospectus. All other documents and reports filed pursuant to Sections
13(a), 13(c) 14 or 15(d) of the Exchange Act from the date of this Prospectus
and prior to the termination of the offering of the Securities shall be deemed
to be incorporated by reference herein and shall be deemed to be a part hereof
from the date of the filing of such reports and documents (provided, however,
that the information referred to in item 402(a)(8) of Regulation S-K of the
Commission shall not be deemed specifically incorporated by reference herein).
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so
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<PAGE> 10
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on written or oral request of such person, a copy
of any or all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in the document which this Prospectus incorporates).
Requests should be directed to the Secretary of the Company, Park 80 West, Plaza
II, Saddle Brook, New Jersey 07663, telephone number (201) 587-1000.
RISK FACTORS
Prospective investors should carefully consider, among other factors, the
matters described below.
REAL ESTATE INVESTMENT CONSIDERATIONS
General
Real property investments are subject to varying degrees of risk. Real
estate values are affected by changes in the general economic climate, local
conditions such as an oversupply of space or a reduction in demand for real
estate in the area, competition from other available space and increased
operating costs. Real estate values are also affected by such factors as
government regulations and changes in zoning or tax laws, interest rate levels,
the availability of financing and potential liability under environmental and
other laws.
Dependence on Tenants
The Company's results of operations will depend on its ability to continue
to lease space in its real estate properties on economically favorable terms. In
addition, as substantially all of the Company's income is derived from rentals
of real property, the Company's income and funds available for distribution
would be adversely affected if a significant number of the Company's lessees
were unable to meet their obligations to the Company. In the event of default by
a lessee, the Company may experience delays in enforcing its rights as lessor
and may incur substantial costs in protecting its investment. Currently only one
of the Company's tenants, Bradlees, Inc. ("Bradlees"), represents more than 5%
of the Company's revenues. Bradlees accounted for approximately 19% of property
rentals for the year ended December 31, 1994 and 18% for the years ended
December 31, 1993 and 1992 (representing 19% of the space leased by the
Company). Home Depot, Shop-Rite, Sam's Wholesale/Wal*Mart and Staples each
accounted for between 3% and 4.5% of property rentals for the year ended
December 31, 1994. No other tenant represented more than 2.5% of the Company's
property rentals in 1994. See "The Company -- The Company's Tenants; Leases".
Bankruptcy of Tenants
There have been a number of recent bankruptcies in the retail industry,
including certain tenants of the Company. The bankruptcy or insolvency of a
major tenant may have a material adverse effect on the shopping centers affected
and the income produced by such properties. The Company's leases generally do
not contain restrictions designed to ensure the creditworthiness of the tenant.
In June 1995, Bradlees filed for protection and to reorganize under Chapter 11
of the U.S. Bankruptcy Code. The leases for 19 of the 21 Bradlees locations are
fully guaranteed by Stop & Shop Companies, Inc. Further, Montgomery Ward & Co.,
Inc. remains liable for that portion of the rent it was obligated to pay in 8 of
these 19 locations.
Illiquidity of Assets; Restrictions on Dispositions of Mortgaged Properties
Equity real estate investments are relatively illiquid and therefore tend
to limit the ability of the Company to vary its portfolio promptly in response
to changes in economic or other conditions. In
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<PAGE> 11
addition, certain significant expenditures associated with each equity
investment (such as mortgage payments, real estate taxes and maintenance costs)
are generally not reduced when circumstances cause a reduction in income from
the investment. Should such events occur, the Company's income and funds for
distribution would be adversely affected. A portion of the Company's properties
are mortgaged to secure payment of indebtedness, and if the Company were unable
to meet its mortgage payments, a loss could be sustained as a result of
foreclosure on the properties by the mortgagee. In addition, if it becomes
necessary or desirable for the Company to dispose of one or more of the
mortgaged properties, the Company might not be able to obtain release of the
lien on such mortgaged property. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Liquidity and Capital
Resources" and the Notes to the Consolidated Financial Statements contained in
the Company's Annual Report on Form 10-K for the Fiscal Year Ended December 31,
1994, incorporated in this Prospectus by reference for information regarding the
terms of the mortgages encumbering the Company's properties.
POSSIBLE CONFLICTS OF INTEREST; RELATED PARTY TRANSACTIONS
Interstate Properties, a New Jersey general partnership ("Interstate"),
owns 27.4% of the outstanding Common Shares of the Company, Steven Roth,
Chairman of the Board and Chief Executive Officer of the Company, is the
managing general partner of Interstate. Mr. Roth, David Mandelbaum and Russell
B. Wight are the three partners of Interstate. Messrs. Roth, Mandelbaum and
Wight and Interstate own, in the aggregate, 32.1% of the outstanding Common
Shares of the Company.
The Company owns 29.3% of the outstanding common stock of Alexander's, Inc.
("Alexander's"), a Delaware corporation, including 27.1% purchased in March
1995. Interstate owns an additional 27.1% of the outstanding common stock of
Alexander's. Mr. Roth is Chief Executive Officer and a Director of Alexander's
and Messrs. Roth, Mandelbaum, West and Wight, members of the Company's Board of
Trustees, are also members of the Board of Directors of Alexander's.
Because of the foregoing, Mr. Roth and Interstate may have substantial
influence on the Company and on the outcome of any matters submitted to the
Company's stockholders for approval. In addition, certain decisions concerning
the operations or financial structure of the Company may present conflicts of
interest between Messrs. Roth, Mandelbaum and Wight and Interstate and the
Company's other shareholders. In addition, Mr. Roth and Interstate engage in a
wide variety of activities in the real estate business which may result in
conflicts of interest with respect to certain matters affecting the Company or
Alexander's, such as potential business opportunities, business dealings,
demands on the time of Mr. Roth and certain of the executive officers of the
Company and changes of existing arrangements between Mr. Roth, the Company and
Interstate, potential competition between business activities conducted, or
sought to be conducted, by the Company, Interstate and Alexander's (including
competition for properties and tenants), possible corporate transactions and
other strategic decisions affecting the future of such parties.
Pursuant to a Management and Development Agreement (the "Management
Agreement") between the Company and Alexander's, the Company has agreed to
manage Alexander's business affairs and manage and develop Alexander's
properties for an annual fee. The Management Agreement was assigned by the
Company to Vornado Management Corp. ("VMC"), a New Jersey corporation. The
Company owns 100% of the outstanding preferred stock of VMC (which entitles the
Company to 95% of the cash flow of VMC), and Messrs. Roth and West own the
outstanding common stock of VMC. The Company also acts as a leasing agent for
Alexander's properties on a fee basis under a leasing agreement which has been
in effect since 1992. In addition, in March 1995 the Company lent Alexander's
$45 million, the subordinated tranche of a $75 million secured financing, the
balance of which was funded by a bank. None of Mr. Roth, Interstate or the
Company is obligated to present to Alexander's any particular investment
opportunity which comes to their attention, even if such opportunity is of a
character which might be suitable for investment by Alexander's.
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<PAGE> 12
CORPORATE STRUCTURE; LEVERAGE
Substantially all of the Company's properties are owned by subsidiaries
and, accordingly, securities issued by the Company will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, including indebtedness of or guaranteed by such subsidiaries. As
of September 30, 1995, the Company and its consolidated subsidiaries had
aggregate indebtedness outstanding of approximately $234 million, secured by
interests in 47 of the Company's properties. See "The Company -- Major
Indebtedness of the Company and Its Subsidiaries". Any right of the Company to
participate in any distribution of the assets of any of the Company's
subsidiaries upon the liquidation, reorganization or insolvency of such
subsidiary (and any consequent right of the Company's securityholders to
participate in those assets) will be subject to the claims of the creditors
(including trade creditors) and preferred stockholders, if any, of such
subsidiary, except to the extent the Company has a claim against such subsidiary
as a creditor of such subsidiary. In addition, in the event that claims of the
Company as a creditor of a subsidiary are recognized, such claims would be
subordinate to any security interest in the assets of such subsidiary and any
indebtedness of such subsidiary senior to that held by the Company.
The Company's ability to make required principal and interest payments with
respect to indebtedness, including any Debt Securities, depends on the earnings
of its subsidiaries and on its ability to receive funds from such subsidiaries
through dividends or other payments. Since the Securities are obligations of the
Company only, the Company's subsidiaries are not obligated or required to pay
any amounts due pursuant to the Securities or to make funds available therefor
in the form of dividends or advances to the Company.
ENVIRONMENTAL MATTERS
Under various Federal, state and local laws and regulations, an owner or
operator of real property may be held liable for the costs of removal or
remediation of hazardous or toxic substances or petroleum products on or under
such property. Such laws can impose liability regardless of the lawfulness of
the activities and whether or not the owner or operator knew of, or was
responsible for, the presence of such hazardous or toxic substances. In
addition, the presence of such substances, or the failure to properly remediate
such substances, may adversely affect the owner's ability to use such real
property as collateral for borrowing or to sell such property. Persons who
arrange for the disposal or treatment of hazardous or toxic substances may also
be liable for the costs of removal or remediation of such substances at the
disposal or treatment facility, regardless of the lawfulness of the disposal and
whether or not such facility is owned or operated by such person. In connection
with the ownership (direct or indirect), operation, management and development
of real properties, the Company may be considered an owner or operator of such
properties or as having arranged for the disposal or treatment of hazardous or
toxic substances and, therefore, potentially liable for removal or remediations
costs, as well as certain other potential costs which could relate to such
hazardous or toxic substances or petroleum products. Certain environmental laws
impose liability for release of asbestos-containing materials ("ACM") into the
air, and third parties may seek recovery from owners or operators of real
properties for personal injuries associated with ACM.
In order to comply with environmental laws and with relevant health-based
standards, the Company has an active monitoring and maintenance program for ACM
on its properties. While the Company believes that its program to remove friable
ACMs has been substantially completed, one location still requires further work.
The Company has received an estimate of $500,000 to remove ACMs, which pursuant
to the lease is the lessee's responsibility. The Company does not believe that
such expenditure, if paid for by the Company, will have a material adverse
effect on the Company's financial condition or results of operations.
Certain environmental laws impose liability on a previous owner or operator
of property to the extent that hazardous or toxic substances were present during
the prior period of ownership or operation. A transfer of the property does not
relieve an owner or operator of such liability. Thus, the Company may be
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<PAGE> 13
liable in respect of properties previously managed, developed or sold, but the
Company has no knowledge of any such liability.
The Company also has certain other existing and potential environmental
liabilities with respect to compliance costs relating to underground storage
tanks and cleanup costs relating to tanks at three Company sites at which
preexisting contamination was found.
The Company believes that known and potential environmental liabilities
will not have a material adverse effect on the Company's business, assets or
results of operations. However, there can be no assurance that the
identification of new areas of contamination, changes in the extent of known
contamination, the discovery of additional sites, or changes in cleanup
requirements would not result in significant costs to the Company.
COMPETITION
The leasing of real estate is highly competitive. The principal means of
competition are price, location and the nature and condition of the facility to
be leased. The Company is in direct competition from all lessors and developers
of similar space in the areas in which its properties are located.
CONSEQUENCES OF THE FAILURE TO QUALIFY OR REMAIN QUALIFIED AS A REIT
Although the Company's management believes that the Company will remain
organized and will continue to operate so as to qualify as a real estate
investment trust ("REIT") for federal income tax purposes, no assurance can be
given that it will remain so qualified. Qualification as a REIT for Federal
income tax purposes involves the application of highly technical and complex
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), for
which there are only limited judicial or administrative interpretations, and the
determination of various factual matters and circumstances not entirely within
the control of the Company may impact its ability to qualify as a REIT. In
addition, no assurance can be given that legislation, new regulations,
administrative interpretations or court decisions will not significantly change
the tax laws with respect to the requirements for qualification as a REIT or the
Federal income tax consequences of such qualification. The Company, however, is
not aware of any proposal to amend the tax laws that would significantly and
adversely affect its ability to operate in such a manner as to qualify as a
REIT.
If, with respect to any taxable year, the Company fails to qualify as a
REIT, it would not be allowed a deduction for distributions to shareholders in
computing its taxable income and would be subject to Federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. As a result, the amount available for distribution to
shareholders would be reduced for the year or years involved, and distributions
would no longer be required to be made. In addition, unless entitled to relief
under certain statutory provisions, the Company would also be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification was lost. Notwithstanding that the Company 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 determine that it is
in the best interest of the Company and its shareholders to revoke the REIT
election.
THE COMPANY
The Company is a fully-integrated real estate investment trust which owns,
leases, develops, redevelops and manages retail and industrial properties
primarily located in the Midatlantic and Northeast regions of the United States.
The Company's primary focus is on shopping centers. As of December 31, 1994, the
Company owned 56 shopping centers in seven states, containing 9.5 million square
feet, including 900,000 square feet built by tenants on land leased from the
Company. Further, the Company owns eight warehouse/industrial properties in New
Jersey containing 2.0 million square feet and one office building in New Jersey
containing 100,000 square feet, for an aggregate of 11.6 million square feet.
The Company's portfolio consists largely of the former locations of the Two Guys
discount department
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stores, which were developed by Two Guys for its own use. The Company's shopping
centers generally are located on major regional highways in mature, densely
populated areas.
The Company also owns 29.3% of the common stock of Alexander's, Inc.
("Alexander's"), which has eight properties in the greater New York Metropolitan
Area. In March 1995, the Company and Alexander's entered into the Management
Agreement, pursuant to which the Company has agreed to manage the business
affairs and properties of Alexander's on a fee basis. In order to ensure
compliance with certain restrictions applicable to REITs, the Company assigned
the Management Agreement To VMC. See "Risk Factors -- Possible Conflicts of
Interest; Related Party Transactions" and "Federal Income Tax
Considerations -- Taxation of the Company as a REIT". In March 1995, the Company
also lent Alexander's $45 million, the subordinated tranche of a $75 million
secured financing; the balance was funded by a bank. The Company's loan has a
three-year term and bears interest at 16.43% per annum for the first two years
and at a fixed rate for the third year of 992 basis points over the one-year
Treasury bill rate. In addition, Vornado received a loan origination fee of
$1,500,000 from Alexander's.
Vornado, Inc., the immediate predecessor of the Company, was merged into
the Company on May 6, 1993 in connection with the Company's conversion to a
REIT. While the Company has elected to be treated as a REIT commencing with its
taxable year ending December 31, 1993, it has been a fully-integrated real
estate company since 1981, with present management taking control in 1980 and
thereafter converting the Two Guys discount department store business into a
full service real estate company. The Company administers all operating
functions, including leasing, management, construction, finance, legal,
accounting and data processing, from its executive office (other than the
leasing of the Company's three Texas properties, which is done by an employee
locally).
In order to maintain its qualification as a REIT for federal income tax
purposes, the Company is required to distribute at least 95% of its taxable
income each year. Dividends on any Preferred Shares would be included as
distributions for this purpose.
The Company's principal executive offices are located at Park 80 West,
Plaza II, Saddle Brook, New Jersey 07663; telephone (201) 587-1000.
The Company (or a predecessor) has been listed on the New York Stock
Exchange for over 30 years.
THE COMPANY'S TENANTS; LEASES
As of December 31, 1994, approximately eighty percent of the leased square
footage of the Company's shopping centers was occupied by large stores (over
20,000 square feet). The Company's large tenants include destination retailers
such as discount department stores, supermarkets, home improvement stores,
discount apparel stores, membership warehouse clubs and "category killers".
"Category killers" are large stores which offer a complete selection of a
category of items (e.g., toys, office supplies, etc.) at low prices, often in a
warehouse format. The Company's largest tenant is Bradlees Inc. ("Bradlees"),
which accounted for approximately 19% of property rentals for the year ended
December 31, 1994 and 18% for the years ended December 31, 1993 and 1992. On
June 23, 1995, Bradlees announced that it filed for protection and will
reorganize under Chapter 11 of the U.S. Bankruptcy Code. The leases for 19 of
the 21 Bradlees locations are fully guaranteed by Stop & Shop Companies, Inc.
Further, Montgomery Ward & Co., Inc. remains liable for that portion of the rent
it was obligated to pay in 8 of these 19 locations. Home Depot, Shop-Rite, Sam's
Wholesale/Wal*Mart and Staples each accounted for between 3% and 4.5% of
property rentals for the year ended December 31, 1994. No other tenant
represented more than 2.5% of the Company's property rentals in 1994.
Substantially all of the Company's large store leases are long-term with
fixed base rents and step-ups in rent, typically occurring every five years. In
addition, the Company's leases generally provide for additional rents based on a
percentage of tenants' sales. Such percentage rents account for approximately 1%
of the Company's property rental income. The Company's leases generally pass
through to
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<PAGE> 15
tenants the tenants' share of all common area charges (including roof and
structure, unless it is the tenants' direct responsibility), real estate taxes,
insurance costs and certain capital expenditures.
MATERIAL INDEBTEDNESS OF THE COMPANY AND ITS SUBSIDIARIES
As of September 30, 1995, the Company and its consolidated subsidiaries had
aggregate indebtedness outstanding of $233,537,000.
Of this $233,537,000, Vornado Finance Corp., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Vornado Finance"), has outstanding an
aggregate principal amount of $227,000,000 of its 6.36% Collateralized Notes Due
December 1, 2000 ("the Collateralized Notes"), secured by a mortgage note,
mortgage and various other instruments, documents and agreements executed in
connection therewith by other subsidiaries of the Company owning, in the
aggregate, the interests in forty-four of the Company's properties.
On February 27, 1995, the Company entered into a three-year unsecured
revolving credit facility with a bank providing for borrowings of up to
$75,000,000. Borrowings bear annual interest, at the Company's election, at
LIBOR plus 1.50% or the higher of the federal funds rate plus 1% or prime rate
plus .50%. As of August 1, 1995, the Company had no outstanding amounts borrowed
under the facility.
USE OF PROCEEDS
The Company anticipates that the net proceeds of the sales of the
Securities will be used for general corporate purposes or such other uses as may
be set forth in a Prospectus Supplement.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
For purposes of calculating the following ratios, (i) earnings represent
income from continuing operations before income taxes, plus fixed charges, and
(ii) fixed charges represent interest expense on all indebtedness (including
amortization of deferred debt issuance costs) and the portion of operating lease
rental expense that is representative of the interest factor (deemed to be
one-third of operating lease rentals). There were no preferred shares
outstanding during any of the periods below indicated and therefore the ratio of
earnings to combined fixed charges and preferred share dividend requirements
would have been the same as the ratio of earnings to fixed charges for each
period indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
NINE MONTHS ENDED ----------------------------------------
SEPTEMBER 30, 1995 1994 1993 1992 1991 1990
------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges:......................... 3.88 3.44 1.79 1.07 1.51 1.30
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described therein. The Senior Debt
Securities are to be issued under an Indenture (the "Senior Indenture") between
the Company and The Bank of New York, as trustee (the "Senior Trustee"), a copy
of the form of which Senior Indenture is filed as an exhibit to the Registration
Statement. The Subordinated Debt Securities are to be issued under a separate
Indenture (the "Subordinated Indenture") between the Company and The Bank of New
York, as trustee (the "Subordinated Trustee"), a copy of the form of which
Subordinated Indenture is filed as an exhibit to the Registration Statement. The
Senior Indenture and the Subordinated Indenture are sometimes referred to
collectively as the "Indentures" and the Senior Trustee and Subordinated Trustee
are sometimes referred to collectively as the "Trustees."
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The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities, the Senior Indenture and the
Subordinated Indenture, as modified or superseded by any applicable Prospectus
Supplement, are brief summaries of certain provisions thereof, do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to all the provisions of the Indenture applicable to a particular series of Debt
Securities. Wherever particular Sections, Articles or defined terms of the
Indentures are referred to herein or in a Prospectus Supplement, such Sections,
Articles or defined terms are incorporated herein or therein by reference.
GENERAL
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities will be general unsecured obligations of the Company. The
Indentures do not limit the aggregate amount of Debt Securities which may be
issued thereunder, and Debt Securities may be issued thereunder from time to
time in separate series up to the aggregate amount from time to time authorized
by the Company for each series. Unless otherwise specified in the Prospectus
Supplement, the Senior Debt Securities when issued will be unsubordinated
obligations of the Company and will rank equally and ratably with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities when issued will be subordinated in right of payment to the prior
payment in full of all Senior Debt (as defined in the Subordinated Indenture) of
the Company as described below under "-- Subordination of Subordinated Debt
Securities" and in the Prospectus Supplement applicable to an offering of
Subordinated Debt Securities.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt Securities; (3) the
person to whom any interest on any Debt Security of the series shall be payable
if other than the person in whose name the Debt Security is registered on the
regular record date; (4) the date or dates on which such Debt Securities will
mature; (5) the rate or rates of interest, if any, or the method of calculation
thereof, which such Debt Securities will bear, the date or dates from which any
such interest will accrue, the interest payment dates on which any such interest
on such Debt Securities will be payable and the regular record date for any
interest payable on any interest payment date; (6) the place or places where the
principal of, premium, if any, and interest on such Debt Securities will be
payable; (7) the period or periods within which, the events upon the occurrence
of which, and the price or prices at which, such Debt Securities may, pursuant
to any optional or mandatory provisions, be redeemed or purchased, in whole or
in part, by the Company and any terms and conditions relevant thereto; (8) the
obligations of the Company, if any, to redeem or repurchase such Debt Securities
at the option of the Holders; (9) the denominations in which any such Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (10) any index or formula used to determine the
amount of payments of principal of and any premium and interest on such Debt
Securities; (11) the currency, currencies or currency unit or units of payment
of principal of and any premium and interest on such Debt Securities if other
than U.S. dollars; (12) if the principal of, or premium, if any, or interest on
such Debt Securities is to be payable, at the election of the Company or a
holder thereof, in one or more currencies or currency units other than that or
those in which such Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Debt Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (13) if other than the
principal amount thereof, the portion of the principal amount of such Debt
Securities of the series which will be payable upon acceleration of the maturity
thereof; (14) if the principal amount of any Debt Securities which will be
payable at the maturity thereof will not be determinable as of any date prior to
such maturity, the amount which will be deemed to be the outstanding principal
amount of such Debt Securities; (15) the applicability of any provisions
described under "Defeasance"; (16) whether any of such Debt Securities are to be
issuable in permanent global form ("Global Security") and, if so, the terms and
conditions, if any, upon which interests in such Securities in global form may
be exchanged, in whole or in part, for the individual Debt Securities
represented thereby; (17) the applicability of any provisions
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<PAGE> 17
described under "Event of Default" and any additional Event of Default
applicable thereto; (18) any covenants applicable to such Debt Securities; (19)
the terms and conditions, if any, pursuant to which the Debt Securities are
convertible or exchangeable into Common Shares or other securities; and (20) any
other terms of such Debt Securities not inconsistent with the provisions of the
Indentures. (Section 301) Debt Securities may also be issued under the
Indentures upon the exercise of Debt Warrants. See "Description of Debt
Warrants."
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special considerations
applicable to any such original issue discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities will be set
forth in the applicable Prospectus Supplement.
Since the Company is a holding company, the rights of the Company, and
hence the right of creditors of the Company (including the Holders of Debt
Securities), to participate in any distribution of the assets of any subsidiary
upon its liquidation or reorganization or otherwise is necessarily subject to
the prior claims of creditors of any such subsidiary, except to the extent that
claims of the Company itself as a creditor of the subsidiary may be recognized.
The Indentures do not contain any provisions that limit the Company's
ability to incur indebtedness. Except as may be indicated in the applicable
Prospectus Supplement with respect to a particular series of Debt Securities,
Holders of Debt Securities will not have the benefit of any specific covenants
or provisions in the applicable Indenture or Debt Securities that would protect
them in the event the Company engages in or becomes the subject of a highly
leveraged transaction and the limitations on mergers, consolidations and
transfers of substantially all of the Company's properties and assets as an
entirety to any person as described below under "-- Consolidation, Merger and
Sale of Assets." Such covenants may not be waived or modified by the Company or
its Board of Trustees, although Holders of Debt Securities could waive or modify
such covenants as more fully described below under "-- Modification and Waiver."
The applicable Prospectus Supplement with respect to any particular series
of Debt Securities that provide for the optional redemption, prepayment or
conversion of such Debt Securities upon the occurrence of certain events (i.e.,
a change of control) will describe the following: (1) the effects that such
provisions may have in deterring certain mergers, tender offers or other
takeover attempts, as well as that there may be possible adverse effects on the
market price of the Company's securities or ability to obtain financing; (2)
that the Company will comply with the requirements of applicable securities
laws, including Rules 14e-1 and 13e-4 under the Exchange Act, in connection with
such provisions and any related offers by the Company; (3) whether the
occurrence of the specified events may give rise to cross-defaults on other
indebtedness such that payment on the offered Debt Securities may be effectively
subordinated; (4) limitations on the Company's financial or legal ability to
repurchase the offered Debt Securities upon the triggering of an event risk
provision requiring such a repurchase or offer to repurchase; (5) the impact, if
any, under the governing instrument of the failure to repurchase, including
whether such failure to make any required repurchases in the event of a change
of control will create an event of default with respect to the offered Debt
Securities or will become an event of default only after the continuation of
such failure for a specified period of time after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the holders of a
specified percentage in aggregate principal amount of the debt outstanding; (6)
that there can be no assurance that sufficient funds will be available at the
time of the triggering of an event risk provision to make any required
repurchases; (7) if such offered Debt Securities are to be subordinated to other
obligations of the Company or its subsidiaries that would be accelerated upon
the triggering of a change in control or similar event, the material effect
thereof on such acceleration provision and such offered Debt Securities;
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<PAGE> 18
and (8) to the extent that there is a definition of "change of control" in a
supplemental indenture relating to such offered Debt Securities that includes
the concept of "all or substantially all," the established meaning of such
phrase under New York law, including whether such a Change of Control will be
triggered if there is a change of control of the Board of Trustees as a result
of a proxy contest involving the solicitation of revocable proxies.
The indenture relating to the Collateralized Notes of Vornado Finance
provides that all cash flows from 44 of the Company's properties will be
deposited in a segregated trust account. So long as no event of default under
the indenture has occurred and is continuing, Vornado Finance may withdraw funds
from such trust account to the extent that the amounts in such account exceed a
certain minimum reserve level. Such minimum reserve level equals the sum of (i)
the amount of current or past due operating expenses of Vornado Finance and its
subsidiaries, (ii) indebtedness of Vornado Finance and its subsidiaries due
prior to such withdrawal and (iii) accrued and unpaid interest on the
Collateralized Notes; provided that (a) if the debt service coverage ratio (as
defined in the indenture relating to the Collateralized Notes) is less than 2.0
and greater than or equal to 1.8, the amount in (iii) above is increased by an
amount equal to six months interest on the Collateralized Notes and (b) if the
debt service coverage ratio is less than 1.8, the amount in (iii) above is
increased by an amount equal to eighteen months interest on the Collateralized
Notes. As a result of these limitations on cash flows relating to such
properties, which cash flows represented approximately 85% of cash flows from
properties of the Company and its consolidated subsidiaries in 1994, the
Company's ability to pay interest and principal on its Debt Securities may be
adversely affected.
CONVERSION OR EXCHANGE OF DEBT SECURITIES
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Debt Securities, such series will be convertible or
exchangeable into Common Shares or other securities on the terms and conditions
set forth therein. Such terms shall include provisions as to whether conversion
is mandatory, at the option of the holder or at the option of the Company, and
may include provisions pursuant to which the number of Common Shares or other
securities of the Company to be received by the holders of Debt Securities would
be calculated according to the market price of Common Shares or other securities
of the Company as of a time stated in the Prospectus Supplement. The applicable
Prospectus Supplement will indicate certain restrictions on ownership which may
apply in the event of a conversion or exchange. See "Description of Preferred
Shares -- Restrictions on Ownership" and "Description of Common
Shares -- Restrictions on Ownership."
FORM, EXCHANGE, REGISTRATION, CONVERSION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued only in fully registered form in denominations of
$1,000 or integral multiples thereof. (Section 302) Unless otherwise indicated
in the applicable Prospectus Supplement, payment of principal, premium, if any,
and interest on the Debt Securities will be payable, and the exchange,
conversion and transfer of Debt Securities will be registerable, at the office
or agency of the Company maintained for such purposes and at any other office or
agency maintained for such purpose. (Sections 301, 305 and 1002) No service
charge will be made for any registration of transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith. (Section 305)
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed for two years after such principal, premium or interest has become due
and payable may be repaid to the Company and thereafter the Holder of such Debt
Security may look only to the Company for payment thereof. (Section 1003)
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BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Global Depositary") or its nominee identified in the
applicable Prospectus Supplement. In such a case, one or more Global Securities
will be issued in a denomination or aggregate denomination equal to the portion
of the aggregate principal amount of Outstanding Debt Securities of the series
to be represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Global Depositary for such Global Security to a nominee of such Global
Depositary or by a nominee of such Global Depositary to such Global Depositary
or another nominee of such Global Depositary or by such Global Depositary or any
nominee to a successor Global Depositary or a nominee of such successor Global
Depositary and except in the circumstances described in the applicable
Prospectus Supplement. (Sections 204 and 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements although no
assurance can be given that such will be the case.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Global Depositary will be represented by a Global Security
registered in the name of such Global Depositary or its nominee. Upon the
issuance of such Global Security, and the deposit of such Global Security with
or on behalf of the Global Depositary for such Global Security, the Global
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such Global
Depositary or its nominee ("participants"). The accounts to be credited will be
designated by the underwriters or agents of such Debt Securities or by the
Company, if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interest in such Global Security will be limited to
participants or Persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Global Security will be shown
on, and the transfer of that ownership interest will be effected only through,
records maintained by the Global Depositary or its nominee for such Global
Security. Ownership of beneficial interests in such Global Security by Persons
that hold through participants will be shown on, and the transfer of such
ownership interests within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the Global Depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such Global Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as set forth below, unless otherwise specified in
the applicable Prospectus Supplement, owners of beneficial interests in such
Global Security will not be entitled to have Debt Securities of the series
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities of such series in
certificated form and will not be considered the holders thereof for any
purposes under the applicable Indenture. (Sections 204 and 305) Accordingly,
each Person owning a beneficial interest in such Global Security must rely on
the procedures of the Global Depositary and, if such Person is not a
participant, on the procedures of the participant through which such Person owns
its interest, to exercise any rights of a holder under the applicable Indenture.
The Company understands that under existing industry practices, if the Company
requests any action of holders or an owner of a beneficial interest in such
Global Security desires to give any notice or take any action a holder is
entitled to give or take under the applicable Indenture, the Global Depositary
would authorize the participants to give such notice or take such action, and
participants
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would authorize beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
If the Global Depositary for Debt Securities of a series is at any time
unwilling, unable or ineligible to continue as Global Depositary and a successor
Global Depositary is not appointed by the Company within 90 days or an Event of
Default under the applicable Indenture has occurred and is continuing, the
Company will issue Debt Securities of such series in definitive form in exchange
for the Global Security or Securities representing the Debt Securities of such
series. In addition, the Company may at any time and in its sole discretion,
subject to any limitations described in the applicable Prospectus Supplement,
determine not to have any Debt Securities of a series represented by one or more
Global Securities and, in such event, will issue Debt Securities of such series
in definitive form in exchange for the Global Security or Securities
representing such Debt Securities. Further, if the Company so specifies with
respect to the Debt Securities of a series, an owner of a beneficial interest in
a Global Security representing Debt Securities of such series may, on terms
acceptable to the Company and the Global Depositary for such Global Security,
receive Debt Securities of such series in definitive form in exchange for such
beneficial interests, subject to any limitations described in the applicable
Prospectus Supplement relating to such Debt Securities. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical
delivery in definitive form of Debt Securities of the series represented by such
Global Security equal in principal amount to such beneficial interest and to
have such Debt Securities registered in its name (if the Debt Securities of such
series are issuable as registered securities).
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Debt Securities, the Company will be subject to the
covenants described therein.
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay principal of or premium, if
any, on any Debt Security of that series when due; (b) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(c) failure in the deposit of any sinking fund payment in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the Indentures (other than a covenant included in the applicable
Indenture solely for the benefit of a series of Debt Securities other than that
series), continued for 60 days after written notice to the Company as provided
in the applicable Indenture; (e) the acceleration of, or failure to pay at
maturity (including any applicable grace period), any indebtedness for money
borrowed by the Company with at least $50,000,000 in principal amount
outstanding, which acceleration or failure to pay is not rescinded or annulled
or such indebtedness paid, in each case within 10 days after the date on which
written notice thereof shall have first been given to the Company as provided in
the applicable Indenture; (f) certain events of bankruptcy, insolvency or
reorganization; and (g) any other Event of Default provided with respect to Debt
Securities of that series. (Section 501)
If an Event of Default with respect to Outstanding Debt Securities of any
series shall occur and be continuing, either the applicable Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series by notice as provided in the Indentures may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Debt Securities of that series to
be due and payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of the Outstanding
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Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (Section 502) For information as to waiver or defaults,
see "-- Modification and Waiver" below.
The Indentures provide that, subject to the duty of the Trustees thereunder
during an Event of Default to act with the required standard of care, such
Trustees will be under no obligation to exercise any of its rights or powers
under the Indentures at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustees reasonable security or
indemnity. (Sections 601 and 603) Subject to certain provisions, including those
requiring security or indemnification of the Trustees, the Holders of a majority
in principal amount of the Outstanding Debt Securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustees, or exercising any trust or power conferred
on such Trustees, with respect to the Debt Securities of that series. (Section
512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indentures or for any remedy thereunder,
unless (i) such Holder shall have previously given to the applicable Trustee
written notice of a continuing Event of Default (as defined) with respect to
Debt Securities of that series; (ii) the Holders of not less than 25% in
aggregate principal amount of the Outstanding Debt Securities of the same series
shall have made written request, and offered reasonable indemnity, to the
applicable Trustee to institute proceedings in respect of such Event of Default
in its own name as trustee under the Indenture; (iii) the Trustee shall have
failed to institute such proceedings within 60 days; and (iv) the Trustee shall
not have received from the Holders of a majority in aggregate principal amount
of the outstanding Debt Securities of the same series a direction inconsistent
with such request (Section 507); provided, however, that such limitations do not
apply to a suit instituted by a Holder of a Debt Security for enforcement of
payment of the principal of and any premium and interest on such Debt Security
on or after the respective due dates expressed in such Debt Security, or in the
case of convertible Debt Securities, for enforcement of a right of conversion.
(Section 508)
The Company will be required to furnish to the Trustees annually a
statement as to the performance by the Company of its obligations under the
Indentures and as to any default in such performance. (Section 1004)
MODIFICATION AND WAIVER
Without the consent of any Holder of Outstanding Debt Securities, the
Company and the applicable Trustee may amend or supplement the applicable
Indenture or the Debt Securities to cure any ambiguity, defect or inconsistency,
or to make any change that does not materially adversely affect the rights of
any Holder of Debt Securities. (Section 901) Other modifications and amendments
of the Indentures may be made by the Company and the applicable Trustee only
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of, or interest on, any Debt Security; (b) reduce the principal amount
of, the rate of interest on, or the premium, if any, payable upon the redemption
of, any Debt Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof; (d) change
the place or currency of payment of principal of, or premium, if any, or
interest on any Debt Security; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security on or after
the Stated Maturity or Redemption Date thereof; (f) modify the conversion
provisions applicable to convertible Debt Securities in a manner adverse to the
holders thereof; (g) modify the subordination provisions applicable to any
series of Debt Securities in a manner adverse to the holders thereof; or (h)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series, the consent of the Holders of which is required for modification or
amendment of the Indentures or for waiver of compliance with certain provisions
of the applicable Indenture or for waiver of certain defaults. (Section 902)
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The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain covenants of the Indentures. (Section
1008) The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may, on behalf of the Holders of all
Debt Securities of that series, waive any past default under the applicable
Indenture with respect to that series, except a default in the payment of the
principal of, or premium, if any, or interest on, any Debt Security of that
series or in respect of a provision which under such applicable Indenture cannot
be modified or amended without the consent of the Holder of each Outstanding
Debt Security of that series affected. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially as
an entirety to, the Company, provided that (a) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
which acquires or leases the assets of the Company substantially as an entirety
assumes the Company's obligations on the Debt Securities and under the Indenture
relating thereto and (b) after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing. (Article Eight) A
Prospectus Supplement may set forth any additional provisions regarding a
consolidation with, merger into, or transfer or lease of its assets
substantially as an entirety to, any Person (or of such Person with, into or to
the Company).
DEFEASANCE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Company, at its option (i) will be discharged
from any and all obligations in respect of the Debt Securities of such series
(except for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace destroyed, stolen, lost or mutilated Debt
Securities of such series, and to maintain an office or agency in respect of the
Debt Securities and hold moneys for payment in trust) or (ii) will be released
from its obligations to comply with any covenants that may be specified in the
applicable Prospectus Supplement with respect to the Debt Securities of such
series, and the occurrence of an event described in clause (d) under "Events of
Default" above with respect to any defeased covenants shall no longer be an
Event of Default, if in either case the Company irrevocably deposits with the
applicable Trustee, in trust, money or U.S. Government Obligations that through
the payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay all of the principal of
and premium, if any, and any interest on the Debt Securities of such series on
the dates such payments are due (which may include one or more redemption dates
designated by the Company) in accordance with the terms of such Debt Securities.
Such a trust may only be established if, among other things, (a) no Event of
Default or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under the applicable Indenture shall have
occurred and be continuing on the date of such deposit, (b) no Event of Default
described under clause (e) under "Events of Default" above or event which with
the giving of notice or lapse of time, or both, would become an Event of Default
described under such clause (e) shall have occurred and be continuing at any
time during the period ending on the 91st day following such date of deposit,
and (c) the Company shall have delivered an Opinion of Counsel to the effect
that the Holders of the Debt Securities will not recognize gain or loss for
United States federal income tax purposes as a result of such deposit or
defeasance and will be subject to United States federal income tax in the same
manner as if such deposit and defeasance had not occurred, which Opinion of
Counsel, in the case of a deposit and defeasance of such Indenture with respect
to the Debt Securities of any series as described under clause (i) above, shall
be based on either (A) a ruling to such effect that the Company has received
from, or that has been published by, the Internal Revenue Service or (B) a
change in the applicable federal income tax law, occurring after the date of the
applicable Indenture, to such effect. In the event the
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Company omits to comply with its remaining obligations under such Indenture
after a defeasance of such Indenture with respect to the Debt Securities of any
series as described under clause (ii) above and the Debt Securities of such
series are declared due and payable because of the occurrence of any undefeased
Event of Default, the amount of money and U.S. Government Obligations on deposit
with the applicable Trustee may be insufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect to such
payments. (Article Thirteen)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Debt, including the Senior Debt Securities. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Debt will first be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of the Subordinated
Debt Securities will be entitled to receive or retain any payment in respect of
the principal of (and premium, if any) or interest, if any, on the Subordinated
Debt Securities. (Article Fifteen of the Subordinated Indenture)
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company who are not holders of Senior Debt or Subordinated Debt
Securities may recover less, ratably, than holders of Senior Debt and may
recover more, ratably, than the holders of the Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Debt, or an event of default with respect to any Senior Debt resulting in the
acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. For purposes of the subordination
provisions, the payment, issuance and delivery of cash, property or securities
(other than stock and certain subordinated securities of the Company) upon
conversion of a Subordinated Debt Security will be deemed to constitute payment
on account of the principal of such Subordinated Debt Security.
"Senior Debt" is defined to mean the principal of (and premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent such
claim for post-petition interest is allowed in such proceeding) on all
indebtedness of the Company (including indebtedness of others guaranteed by the
Company), other than the Subordinated Debt Securities whether outstanding on the
date of the Subordinated Indenture or thereafter created, incurred or assumed,
which is: (i) for money borrowed, (ii) evidenced by a note or similar instrument
given in connection with the acquisition of any businesses, properties or assets
of any kind or (iii) obligations of the Company as lessee under leases required
to be capitalized on the balance sheet of the lessee under generally accepted
accounting principles or leases of property or assets made as part of any sale
and lease-back transaction to which the Company is a party, including
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation, unless in any case in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which
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the same is outstanding it is provided that such indebtedness or obligation is
not superior in right of payment to the Subordinated Debt Securities.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt, which may include indebtedness that is senior to the
Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior Debt.
The Prospectus Supplement will set forth the aggregate amount of
outstanding indebtedness as of the most recent practicable date that by the
terms of such indebtedness and the terms of the offered Subordinated Debt
Securities would rank senior to or pari passu with such Subordinated Debt
Securities and any limitation on the issuance of additional senior or pari passu
indebtedness. The Prospectus Supplement may further describe the provisions, if
any, applicable to the subordination of the Subordinated Debt Securities of a
particular series.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 112)
REGARDING THE TRUSTEES
The Company and certain of its subsidiaries in the ordinary course of
business maintain general banking relations with The Bank of New York. Pursuant
to the provisions of the Trust Indenture Act of 1939, upon a default under
either the Senior Indenture or the Subordinated Indenture, The Bank of New York
may be deemed to have a conflicting interest by virtue of its acting as both the
Senior Trustee and the Subordinated Trustee requiring it to resign and be
replaced by a successor trustee in one of such positions.
DESCRIPTION OF SHARES OF BENEFICIAL INTEREST
The following descriptions and the descriptions contained in "Description
of Preferred Shares" and "Description of Common Shares" do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
the more complete descriptions thereof set forth in the following documents: (i)
the Company's Amended and Restated Declaration of Trust (the "Declaration of
Trust"); and (ii) its Bylaws, which documents are exhibits to this Registration
Statement.
For the Company to qualify as a REIT under the Code, not more than 50% of
the value of the outstanding stock may be owned, directly or indirectly, by five
or fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year and the stock must be beneficially owned by 100
or more persons during at least 335 days of a taxable year of 12 months (or
during a proportionate part of a shorter taxable year). Accordingly, the
Declaration of Trust contains provisions that restrict the ownership and
transfer of shares of beneficial interest.
The Declaration of Trust authorizes the issuance of up to 102,000,000
shares, consisting of 50,000,000 common shares of beneficial interest, $.04 par
value per share ("Common Shares"), 1,000,000 preferred shares of beneficial
interest, no par value per share ("Preferred Shares"), and 51,000,000 excess
shares of beneficial interest, $.04 par value per share ("Excess Shares").
DESCRIPTION OF PREFERRED SHARES
The following is a description of certain general terms and provisions of
the Preferred Shares. The particular terms of any series of Preferred Shares
will be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The summary of terms of the Company's Preferred Shares contained in this
Prospectus does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of the Declaration
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of Trust and the articles supplementary relating to each series of the Preferred
Shares (the "Articles Supplementary"), which will be filed as an exhibit to or
incorporated by reference in the Registration Statement of which this Prospectus
is a part at or prior to the time of issuance of such series of the Preferred
Shares.
The Declaration of Trust authorizes the issuance of 1,000,000 Preferred
Shares. No Preferred Shares are outstanding as of the date of this Prospectus.
The Preferred Shares authorized by the Declaration of Trust may be issued from
time to time in one or more series in such amounts and with such designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption as may be fixed by the Board of Trustees. Under certain
circumstances, the issuance of Preferred Shares could have the effect of
delaying, deferring or preventing a change of control of the Company and may
adversely affect the voting and other rights of the holders of Common Shares.
The Declaration of Trust authorizes the Board of Trustees to classify or
reclassify any unissued Preferred Shares by setting or changing the
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption of such Preferred Shares.
The Preferred Shares shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise described in a Prospectus
Supplement relating to a particular series of the Preferred Shares. The
applicable Prospectus Supplement will describe the following terms of the series
of Preferred Shares in respect of which this Prospectus is being delivered: (1)
the title of such Preferred Shares and the number of shares offered; (2) the
amount of liquidation preference per share; (3) the initial public offering
price at which such Preferred Shares will be issued; (4) the dividend rate (or
method of calculation), the dates on which dividends shall be payable and the
dates from which dividends shall commence to cumulate, if any; (5) any
redemption or sinking fund provisions; (6) any conversion or exchange rights;
(7) any additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions; (8) any
listing of such Preferred Shares on any securities exchange; (9) a discussion of
federal income tax considerations applicable to such Preferred Shares; (10) the
relative ranking and preferences of such Preferred Shares as to dividend rights
and rights upon liquidation, dissolution or winding up of the affairs of the
Company; (11) any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred Shares as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; and (12) any limitations on direct or beneficial
ownership and restrictions on transfer, in each case as may be appropriate to
preserve the status of the Company as a REIT.
General
The Preferred Shares offered hereby will be issued in one or more series.
The Preferred Shares, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The liquidation preference is
not indicative of the price at which the Preferred Shares will actually trade on
or after the date of issuance.
Rank
The Preferred Shares shall, with respect to dividend rights and rights upon
liquidation, dissolution and winding up of the Company, rank prior to the Common
Shares and Excess Shares (other than certain Excess Shares resulting from the
conversion of Preferred Shares) and to all other classes and series of equity
securities of the Company now or hereafter authorized, issued or outstanding
(the Common Shares and such other classes and series of equity securities
collectively may be referred to herein as the "Junior Stock"), other than any
classes or series of equity securities of the Company which by their terms
specifically provide for a ranking on a parity with (the "Parity Stock") or
senior to (the "Senior Stock") the Preferred Shares as to dividend rights and
rights upon liquidation, dissolution or winding up of the Company. The Preferred
Shares shall be junior to all outstanding debt of the Company. The Preferred
Shares shall be subject to creation of Senior Stock, Parity Stock and Junior
Stock to the extent not expressly prohibited by the Declaration of Trust.
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Dividends
Holders of Preferred Shares shall be entitled to receive, when, as and if
declared by the Board of Trustees out of assets of the Company legally available
for payment, dividends, or distributions in cash, property or other assets of
the Company or in Securities of the Company or from any other source as the
Board of Trustees in their discretion shall determine and at such dates and at
such rates per share per annum as described in the applicable Prospectus
Supplement. Such rate may be fixed or variable or both. Each declared dividend
shall be payable to holders of record as they appear at the close of business on
the books of the Company on such record dates, not more than 90 calendar days
preceding the payment dates therefor, as are determined by the Board of Trustees
(each of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as described in the
applicable Prospectus Supplement. If dividends on a series of Preferred Shares
are noncumulative and if the Board of Trustees fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Shares will have no right to receive a dividend in respect of such
dividend period, and the Company will have no obligation to pay the dividend for
such period, whether or not dividends are declared payable on any future
dividend payment dates. If dividends of a series of Preferred Shares are
cumulative, the dividends on such shares will accrue from and after the date set
forth in the applicable Prospectus Supplement.
No full dividends shall be declared or paid or set apart for payment on
Preferred Shares of any series ranking, as to dividends, on a parity with or
junior to the series of Preferred Shares offered by the applicable Prospectus
Supplement for any period unless full dividends for the immediately preceding
dividend period on such Preferred Shares (including any accumulation in respect
of unpaid dividends for prior dividend periods, if dividends on such Preferred
Shares are cumulative) have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment. When dividends are not so paid in full (or a sum sufficient for such
full payment is not so set apart) upon such Preferred Shares and any other
Preferred Shares of the Company ranking on a parity as to dividends with the
Preferred Shares, dividends upon such Preferred Shares and dividends on such
other Preferred Shares ranking on a parity with the Preferred Shares shall be
declared pro rata so that the amount of dividends declared per share on such
Preferred Shares and such other Preferred Shares ranking on a parity with the
Preferred Shares shall in all cases bear to each other the same ratio that
accrued dividends for the then-current dividend period per share on such
Preferred Shares (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such Preferred Shares are cumulative)
and accrued dividends, including required or permitted accumulations, if any, on
shares of such other Preferred Shares, bear to each other. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment(s) on Preferred Shares which may be in arrears. Unless full dividends on
the series of Preferred Shares offered by the applicable Prospectus Supplement
have been declared and paid or set apart for payment for the immediately
preceding dividend period (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred Shares are
cumulative), (a) no cash dividend or distribution (other than in shares of
Junior Stock) may be declared, set aside or paid on the Junior Stock, (b) the
Company may not, directly or indirectly, repurchase, redeem or otherwise acquire
any shares of its Junior Stock (or pay any monies into a sinking fund for the
redemption of any shares) except by conversion into or exchange for Junior
Stock, and (c) the Company may not, directly or indirectly, repurchase, redeem
or otherwise acquire any Preferred Shares or Parity Stock (or pay any monies
into a sinking fund for the redemption of any shares of any such stock)
otherwise than pursuant to pro rata offers to purchase or a concurrent
redemption of all, or a pro rata portion, of the outstanding Preferred Shares
and shares of Parity Stock (except by conversion into or exchange for Junior
Stock).
Any dividend payment made on a series of Preferred Shares shall first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series.
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Redemption
The terms, if any, on which Preferred Shares of any series may be redeemed
will be set forth in the applicable Prospectus Supplement.
Liquidation
In the event of a voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, the holders of a series of Preferred
Shares will be entitled, subject to the rights of creditors, but before any
distribution or payment to the holders of Common Shares, Excess Shares (other
than certain Excess Shares resulting from the conversion of Preferred Shares) or
any Junior Stock on liquidation, dissolution or winding up of the Company, to
receive a liquidating distribution in the amount of the liquidation preference
per share as set forth in the applicable Prospectus Supplement plus accrued and
unpaid dividends for the then-current dividend period (including any
accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such series of Preferred Shares are cumulative). If the amounts
available for distribution with respect to the Preferred Shares and all other
outstanding Parity Stock are not sufficient to satisfy the full liquidation
rights of all the outstanding Preferred Shares and Parity Stock, then the
holders of each series of such stock will share ratably in any such distribution
of assets in proportion to the full respective preferential amount (which in the
case of Preferred Shares may include accumulated dividends) to which they are
entitled. After payment of the full amount of the liquidation distribution, the
holders of Preferred Shares will not be entitled to any further participation in
any distribution of assets by the Company.
Voting
The Preferred Shares of a series will not be entitled to vote, except as
described below or in the applicable Prospectus Supplement. Without the
affirmative vote of a majority of the Preferred Shares then outstanding (voting
separately as a class together with any Parity Stock), the Company may not (i)
increase or decrease the aggregate number of authorized shares of such class or
any security ranking prior to the Preferred Shares, (ii) increase or decrease
the par value of the shares of holders of such class, or (iii) alter or change
the voting or other powers, preferences or special rights of such class so as to
affect them adversely. An amendment which increases the number of authorized
shares of or authorizes the creation or issuance of other classes or series of
Junior Stock or Parity Stock, or substitutes the surviving entity in a merger,
consolidation, reorganization or other business combination for the Company,
shall not be considered to be such an adverse change.
No Other Rights
The shares of a series of Preferred Shares will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement, the
Declaration of Trust and in the applicable Articles Supplementary or as
otherwise required by law.
Transfer Agent and Registrar
The transfer agent for each series of Preferred Shares will be described in
the related Prospectus Supplement.
Restrictions on Ownership
As discussed below, for the Company to qualify as a REIT under the Code,
not more than 50% in value of its outstanding shares of beneficial interest may
be owned, directly or constructively, by five or fewer individuals (as defined
in the Code to include certain entities) 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).
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Therefore, the Declaration of Trust contains, and the Articles Supplementary for
each series of Preferred Shares may contain, provisions restricting the
ownership and transfer of the Preferred Shares.
In order to prevent any Company shareholder from owning shares in an amount
which would cause more than 50% of the value of the outstanding shares of the
Company to be held by five or fewer individuals, the Declaration of Trust
contains a limitation that restricts shareholders from owning, under the
applicable attribution rules of the Code, more than 9.9% of the outstanding
Preferred Shares of any series (the "Preferred Shares Beneficial Ownership
Limit"). The attribution rules which apply for purposes of the Common Shares
Beneficial Ownership Limit (as defined below) also apply for purposes of the
Preferred Shares Beneficial Ownership Limit. See "Description of Common
Shares -- Restrictions on Ownership". Shareholders should be aware that events
other than a purchase or other transfer of Preferred Shares may result in
ownership, under the applicable attribution rules of the Code, of Preferred
Shares in excess of the Preferred Shares Beneficial Ownership Limit.
Shareholders are urged to consult their own tax advisors concerning the
application of the attribution rules of the Code in their particular
circumstances.
Holders of Preferred Shares are also subject to the Constructive Ownership
Limit (as defined below in "Description of Common Shares -- Restrictions on
Ownership"), which restricts them from owning, under the applicable attribution
rules of the Code, more than 9.9% of the outstanding Preferred Shares of any
series. The attribution rules which apply for purposes of the Constructive
Ownership Limit differ from those that apply for purposes of the Preferred
Shares Beneficial Ownership Limit. See "Description of Common
Shares -- Restrictions on Ownership". Shareholders should be aware that events
other than a purchase or other transfer of Preferred Shares may result in
ownership, under the applicable attribution rules of the Code, of Preferred
Shares in excess of the Constructive Ownership Limit. Shareholders are urged to
consult their own tax advisors concerning the application of the attribution
rules of the Code in their particular circumstances.
The Declaration of Trust provides that a transfer of Preferred Shares that
would otherwise result in ownership, under the applicable attribution rules of
the Code, of Preferred Shares in excess of the Preferred Shares Beneficial
Ownership Limit or the Constructive Ownership Limit, or which would cause the
shares of beneficial interest of the Company to be beneficially owned by fewer
than 100 persons, will be null and void and the purported transferee will
acquire no rights or economic interest in such Preferred Shares. In addition,
Preferred Shares that would otherwise be owned, under the applicable attribution
rules of the Code, in excess of the Preferred Shares Beneficial Ownership Limit
or the Constructive Ownership Limit will be automatically exchanged for Excess
Shares that will be transferred, by operation of law, to the Company 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 the Company. Any dividends or distributions received by
the purported transferee or other purported holder of such Excess Shares prior
to the discovery by the Company of the automatic exchange for Excess Shares
shall be repaid to the Company upon demand.
If the purported transferee or purported holder elects to designate a
beneficiary of an interest in the trust with respect to such Excess Shares, only
a person whose ownership of the shares will not violate the Preferred Shares
Beneficial Ownership Limit or the Constructive Ownership Limit may be
designated, at which time the Excess Shares will be automatically exchanged for
Preferred Shares of the same class as the Preferred Shares which were originally
exchanged for such Excess 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 such a transfer an amount that
reflects any appreciation in the Preferred Shares for which such Excess Shares
were exchanged during the period that such Excess Shares were outstanding but
will bear the burden of any decline in value during such 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 the Company. The Declaration of Trust provides that the Company may purchase
any Excess Shares that have been automatically exchanged for Preferred Shares as
a result of a purported transfer or other event. The price at which the Company
may
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purchase such Excess Shares shall be equal to the lesser of (i) in the case of
Excess Shares resulting from a purported transfer for value, the price per share
in the purported transfer that resulted in the automatic exchange for Excess
Shares or, in the case of Excess Shares resulting from some other event, the
market price of the Preferred Shares exchanged on the date of the automatic
exchange for Excess Shares and (ii) the market price of the Preferred Shares
exchanged for such Excess Shares on the date that the Company accepts the deemed
offer to sell such Excess Shares. The Company's purchase right with respect to
Excess Shares shall exist for 90 days, beginning on the date that the automatic
exchange for Excess Shares occurred or, if the Company did not receive a notice
concerning the purported transfer that resulted in the automatic exchange for
Excess Shares, the date that the Board of Trustees determines in good faith that
an exchange for Excess Shares has occurred.
The Board of Trustees may exempt certain persons from the Preferred Shares
Beneficial Ownership Limit or the Constructive Ownership Limit if evidence
satisfactory to the trustees is presented showing that such exemption will not
jeopardize the Company's status as a REIT under the Code. As a condition of such
exemption, the Board of Trustees may require a ruling from the Internal Revenue
Service and/or an opinion of counsel satisfactory to it and/or representations
and undertakings from the applicant with respect to preserving the REIT status
of the Company.
The foregoing restrictions on transferability and ownership will not apply
if the Board of Trustees determines that it is no longer in the best interests
of the Company to attempt to qualify, or to continue to qualify, as a REIT.
All certificates representing Preferred Shares will bear a legend referring
to the restrictions described above.
All persons who own, directly or by virtue of the applicable attribution
rules of the Code, more than 2% of the outstanding Preferred Shares of any
series must give a written notice to the Company containing the information
specified in the Declaration of Trust by January 30 of each year. In addition,
each shareholder shall upon demand be required to disclose to the Company such
information as the Company may request, in good faith, in order to determine the
Company's status as a REIT or to comply with Treasury Regulations promulgated
under the REIT provisions of the Code.
DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement and of the Depositary Shares and Depositary
Receipts (each as defined below) does not purport to be complete and is subject
to and qualified in its entirety by reference to the forms of Deposit Agreement
and Depositary Receipts relating to each series of the Preferred Stock which
have been or will be filed with the Commission at or prior to the time of the
offering of such series of the Preferred Stock. If so indicated in a Prospectus
Supplement, the terms of any series of Depositary Shares may differ from the
terms set forth herein.
General
The Company may, at its option, elect to offer receipts for fractional
interests ("Depositary Shares") in Preferred Shares, rather than full Preferred
Shares. In such event, receipts ("Depositary Receipts") for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Shares) of a share of a
particular series of Preferred Shares, will be issued as described below.
The shares of any series of Preferred Shares represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and the depositary (the "Depositary"). Subject to the terms
of the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a Preferred Share represented by such
Depositary Share, to all the rights and preferences of the Preferred Shares
represented thereby (including dividend, voting, redemption, subscription and
liquidation rights).
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Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record holders
of Depositary Shares relating to such Preferred Shares in proportion to the
numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares in
an equitable manner, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may sell such property and
distribute the net proceeds from such sale to such holders.
Withdrawal of Preferred Stock
Upon surrender of Depositary Receipts at the corporate trust office of the
depositary (unless the related Depositary Shares have previously been called for
redemption or converted into Excess Shares or otherwise), the holders thereof
will be entitled to delivery at such office, to or upon such holder's order, of
the number of whole or fractional shares of the class or series of Preferred
Shares and any money or other property represented by the Depositary Shares
evidenced by such Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related class or series of
Preferred Shares on the basis of the proportion of Preferred Shares represented
by each Depositary Share as specified in the applicable Prospectus Supplement,
but holders of such Preferred Shares will not thereafter be entitled to receive
Depositary Shares thereof. If the Depositary Receipts delivered by the holder
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of shares of Preferred Shares to be withdrawn,
the Depositary will deliver to such holder at the same time a new Depositary
Receipt evidencing such excess number of Depositary Shares.
Redemption of Depositary Shares
If a series of Preferred Shares represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds received
by the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Shares held by the Depositary. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Shares.
Whenever the Company redeems Preferred Shares held by the Depositary, the
Depositary will redeem as of the same redemption date the number of Depositary
Shares representing Preferred Shares so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot, pro rata or by any other equitable method as may be
determined by the Depositary.
Voting the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information contained
in such notices of meeting to the record holders of the Depositary Shares
relating to such Preferred Shares. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Shares) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of the Preferred Shares
represented by such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of the Preferred Shares represented
by such Depositary Shares in accordance with such instructions, and the Company
will agree to take all reasonable action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting the Preferred Shares to the extent it does not receive
specific instructions from the holder of Depositary Shares representing such
Preferred Shares.
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Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders of Depositary Shares will not be
effective unless such amendment has been approved by the holders of at least a
majority of the Depositary Shares then outstanding. The Deposit Agreement will
only terminate if (i) all outstanding Depositary Shares have been redeemed or
(ii) there has been a final distribution in respect of the Preferred Shares in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of the related Depositary
Shares.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
Preferred Shares and issuance of Depositary Receipts, all withdrawals of
Preferred Shares by owners of Depositary Shares and any redemption of the
Preferred Shares. Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
Restrictions on Ownership
In order to safeguard the Company against an inadvertent loss of REIT
status, the Deposit Agreement or the Declaration of Trust will contain
provisions restricting the ownership and transfer of Depositary Shares. Such
restrictions will be described in the applicable Prospectus Supplement.
Miscellaneous
The Depositary will forward all reports and communications from the Company
which are delivered to the Depositary and which the Company is required or
otherwise determines to furnish to the holders of the Preferred Shares.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Shares unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Shares for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON SHARES
As of August 1, 1995, 24,238,937 Common Shares were issued and outstanding
and no Preferred Shares or Excess Shares are issued and outstanding. The Common
Shares of the Company are listed on the New York Stock Exchange under the symbol
"VNO".
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The holders of Common Shares are entitled to receive dividends when, if and
as declared by the Board of Trustees of the Company out of assets legally
available therefor, provided that if any Preferred Shares are at the time
outstanding, the payment of dividends on Common Shares or other distributions
(including purchases of Common Shares) may be subject to the declaration and
payment of full cumulative dividends, and the absence of arrearages in any
mandatory sinking fund, on outstanding Preferred Shares.
The holders of Common Shares are entitled to one vote for each share on all
matters voted on by stockholders, 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 the Company.
In the event of the dissolution, liquidation or winding up, holders of Common
Shares are entitled to share ratably in any assets remaining after the
satisfaction in full of the prior rights of creditors, including holders of the
Company's indebtedness, and the aggregate liquidation preference of any
Preferred Shares then outstanding.
The Common Shares have equal dividend, distribution, liquidation and other
rights, and shall have no preference, appraisal or exchange rights. All
outstanding shares of Common Shares are, and any Common Shares offered by a
Prospectus Supplement, upon issuance, will be, fully paid and non-assessable.
The transfer agent for the Common Shares is First Fidelity Bank, N.A., New
Jersey.
Restrictions on Ownership
The Declaration of Trust contains a number of provisions which restrict the
ownership and transfer of shares and which are designed to safeguard the Company
against an inadvertent loss of REIT status. In order to prevent any Company
shareholder from owning shares in an amount which would cause more than 50% in
value of the outstanding shares of the Company to be owned by five or fewer
individuals, the Declaration of Trust contains a limitation that restricts, with
certain exceptions, shareholders from owning, under the applicable attribution
rules of the Code, more than 2.0% of the outstanding Common Shares (the "Common
Shares Beneficial Ownership Limit"). The shareholders who owned, under the
applicable attribution rules of the Code, more than 2.0% of the Common Shares
immediately after the merger of Vornado, Inc. into the Company in May 1993 (the
"Merger") may continue to do so and may acquire additional Common Shares through
stock option and similar plans or from other shareholders who owned, under the
applicable attribution rules of the Code, more than 2.0% of the Common Shares
immediately after the Merger, subject to the restriction that Common Shares
cannot be transferred if, as a result, more than 50% in value of the outstanding
shares of the Company would be owned by five or fewer individuals. While such
shareholders are not generally permitted to acquire additional Common Shares
from any other source, such shareholders may acquire additional Common Shares
from any source in the event that additional Common Shares are issued by the
Company, up to the percentage held by them immediately prior to such issuance.
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 Code, of Common Shares in excess of the Common Shares
Beneficial Ownership Limit. For instance, if two shareholders, each of whom
owns, under the applicable attribution rules of the Code, 1.5% of the
outstanding Common Shares, were to marry, then after their marriage both
shareholders would own, under the applicable attribution rules of the Code, 3.0%
of the outstanding Common Shares, which is in excess of the Common Shares
Beneficial Ownership Limit. Similarly, if a shareholder who owns, under the
applicable attribution rules of the Code, 1.9% of the outstanding Common Shares
were to purchase a 50% interest in a corporation which owns 1.8% of the
outstanding Common Shares, then the shareholder would own, under the applicable
attribution rules of the Code, 2.8% of the outstanding Common Shares.
Shareholders are urged to consult
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their own tax advisers concerning the application of the attribution rules of
the Code in their particular circumstances.
Under the Code, rental income received by a REIT from persons in which the
REIT is treated, under the applicable attribution rules of the Code, as owning a
10% or greater interest does not constitute qualifying income for purposes of
the income requirements that REITs must satisfy. For these purposes, a REIT is
treated as owning any stock owned, under the applicable attribution rules of the
Code, by a person that owns 10% or more of the value of the outstanding shares
of the REIT. Therefore, in order to ensure that rental income of the Company
will not be treated as nonqualifying income under the rule described above, and
thus to ensure that there will not be an inadvertent loss of REIT status as a
result of the ownership of shares of a tenant, or a person that holds an
interest in a tenant, the Declaration of Trust also contains an ownership limit
that restricts, with certain exceptions, shareholders from owning, under the
applicable attribution rules of the Code (which are different from those
applicable with respect to the Common Shares Beneficial Ownership Limit), more
than 9.9% of the outstanding shares of any class (the "Constructive Ownership
Limit"). The shareholders who owned, under the applicable attribution rules of
the Code, shares in excess of the Constructive Ownership Limit immediately after
the Merger generally are not subject to the Constructive Ownership Limit.
Subject to 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, the Declaration of Trust also contains restrictions that are designed
to ensure that the shareholders who owned, under the applicable attribution
rules of the Code, shares in excess of the Constructive Ownership Limit
immediately after the Merger will not, in the aggregate, own an interest in a
tenant or subtenant of the REIT of sufficient magnitude to cause rental income
received, directly or indirectly, by the REIT from such tenant or subtenant to
be treated as nonqualifying income for purposes of the income requirements that
REITs must satisfy.
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 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. Shareholders are urged to consult
their own tax advisers concerning the application of the attribution rules of
the Code in their particular circumstances.
The Declaration of Trust provides that a transfer of Common Shares that
would otherwise result in ownership, under the applicable attribution rules of
the 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 the Company to be beneficially owned by fewer than 100
persons, will be null and void and the purported transferee will acquire no
rights or economic interest in such Common Shares. In addition, Common Shares
that would otherwise be owned, under the applicable attribution rules of the
Code, in excess of the Common Shares Beneficial Ownership Limit or the
Constructive Ownership Limit will be automatically exchanged for Excess Shares
that will be transferred, by operation of law, to the Company 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 the Company. Any dividends or distributions received by
the purported transferee or other purported holder of such Excess Shares prior
to the discovery by the Company of the automatic exchange for Excess Shares
shall be repaid to the Company upon demand.
If the purported transferee or purported holder elects to designate a
beneficiary of an interest in the trust with respect to such Excess Shares, only
a person whose ownership of the shares will not violate the Common Shares
Beneficial Ownership Limit or the Constructive Ownership Limit may be
designated, at which time 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
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the Excess Shares may not receive in return for such a transfer an amount that
reflects any appreciation in the Common Shares for which such Excess Shares were
exchanged during the period that such Excess Shares were outstanding but will
bear the burden of any decline in value during such 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 the Company.
The Declaration of Trust provides that the Company 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 the Company may purchase
such Excess Shares shall be equal to the lesser of (i) 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 (ii) the market price of the Common Shares exchanged for such Excess
Shares on the date that the Company accepts the deemed offer to sell such Excess
Shares. The Company's purchase right with respect to Excess Shares shall exist
for 90 days, beginning on the date that the automatic exchange for Excess Shares
occurred or, if the Company did not receive a notice concerning the purported
transfer that resulted in the automatic exchange for Excess Shares, the date
that the Board of Trustees determines in good faith that an exchange for Excess
Shares has occurred.
The Board of Trustees of the Company may exempt certain persons from the
Common Shares Beneficial Ownership Limit or the Constructive Ownership Limit,
including the limitations applicable to holders who owned in excess of 2.0% of
the Common Shares immediately after the Merger, if evidence satisfactory to the
Board of Trustees is presented showing that such exemption will not jeopardize
the Company's status as a REIT under the Code. As a condition of such exemption,
the Board of Trustees may require a ruling from the Internal Revenue Service
and/or an opinion of counsel satisfactory to it and/or representations and
undertakings from the applicant with respect to preserving the REIT status of
the Company.
The foregoing restrictions on transferability and ownership will not apply
if the Board of Trustees determines that it is no longer in the best interests
of the Company 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 Code, more than 2% of the outstanding Common Shares must give a
written notice to the Company containing the information specified in the
Declaration of Trust by January 31 of each year. In addition, each shareholder
shall upon demand be required to disclose to the Company such information as the
Company may request, in good faith, in order to determine the Company's status
as a REIT or to comply with Treasury Regulations promulgated under the REIT
provisions of the Code.
The ownership restrictions described above may have the effect of
precluding acquisition of control of the Company unless the Board of Trustees
determines that maintenance of REIT status is no longer in the best interests of
the Company.
DESCRIPTION OF DEBT WARRANTS
The Company may issue Debt Warrants to purchase Debt Securities ("Debt
Warrants"). Debt Warrants may be issued independently or together with any Debt
Securities and may be attached to or separate from such Debt Securities. The
Debt Warrants are to be issued under warrant agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust company,
as warrant agent (the "Warrant Agent"), all as shall be set forth in the
Prospectus Supplement relating to Debt Warrants being offered pursuant thereto.
If so indicated in a Prospectus Supplement, the terms of any Debt Warrants may
differ from the terms set forth below.
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the debt warrant certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the aggregate number of
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such Debt Warrants; (3) the price or prices at which such Debt Warrants will be
issued; (4) the currency or currencies, including composite currencies or
currency units, in which the price of such Debt Warrants may be payable; (5) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants, and the procedures and
conditions relating to the exercise of such Debt Warrants; (6) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such Debt
Security; (7) the currency or currencies, including composite currencies or
currency units, in which the principal of (or premium, if any), or interest, if
any, on the Debt Securities purchasable upon exercise of such Debt Warrants will
be payable; (8) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable; (9) the principal
amount of Debt Securities purchasable upon exercise of each Debt Warrant, and
the price at which and the currency, including composite currency or currency
unit, in which such principal amount of Debt Securities may be purchased upon
such exercise; (10) the date on which the right to exercise such Debt Warrants
shall commence, and the date on which such right shall expire; (11) the maximum
or minimum number of such Debt Warrants which may be exercised at any time; (12)
a discussion of material federal income tax considerations, if any; and (13) any
other terms of such Debt Warrants and terms, procedures and limitations relating
to the exercise of such Debt Warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders
of Debt Warrants will not have any of the rights of holders of the Debt
Securities purchasable upon such exercise and will not be entitled to payments
of principal of (or premium, if any) or interest, if any, on the Debt Securities
purchasable upon such exercise.
EXERCISE OF DEBT WARRANTS
Each Debt Warrant will entitle the holder of such Debt Warrant to purchase
for cash such principal amount of Debt Securities at such exercise price as
shall in each case be set forth in, or be determinable as set forth in, the
Prospectus Supplement relating to the Debt Warrants offered thereby. Debt
Warrants may be exercised at any time up to the close of business on the
expiration date set forth in the Prospectus Supplement relating to the Debt
Warrants offered thereby. After the close of business on the expiration date,
unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Debt Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Debt
Securities purchasable upon such exercise. If less than all of the Debt Warrants
represented by such warrant certificate are exercised, a new warrant certificate
will be issued for the remaining Debt Warrants.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of the taxation of the Company and the material
federal income tax consequences to holders of the Securities is for general
information only, and is not tax advice. The summary sets forth the opinion of
Sullivan & Cromwell, special federal income tax counsel to the Company, as to
the material federal income tax consequences to holders of the Securities. The
tax treatment of a holder of Securities will vary depending upon the holder's
particular situation, and this discussion addresses only holders that hold
Securities as capital assets and does not purport to deal with all aspects of
taxation that may be relevant to particular holders in light of their personal
investment or tax circumstances, or to certain types of holders (including
dealers in securities or currencies, banks, tax-exempt organizations, life
insurance companies, persons that hold Securities that are a hedge or that are
hedged against currency risks or that are part of a straddle or conversion
transaction) subject to special treatment under the federal income tax laws.
This summary is based on the Code, its legislative history,
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existing and proposed regulations thereunder, published rulings and court
decisions, all as currently in effect and all subject to change at any time,
perhaps with retroactive effect. INVESTORS ARE URGED TO CONSULT WITH THEIR OWN
TAX ADVISORS REGARDING THE TAX CONSEQUENCES TO THEM OF THE ACQUISITION,
OWNERSHIP AND SALE OF SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL AND
FOREIGN TAX CONSEQUENCES OF SUCH ACQUISITION, OWNERSHIP AND SALE IN THEIR
PARTICULAR CIRCUMSTANCES AND POTENTIAL CHANGES IN APPLICABLE LAWS.
TAXATION OF THE COMPANY AS A REIT
General
The Company believes that, commencing with its taxable year ending December
31, 1993, it has been organized and has operated in such a manner as to qualify
for taxation as a REIT under Sections 856 through 860 of the Code. The Company
intends to continue to qualify to be taxed as a REIT, but no assurance of
continued qualification can be given.
The sections of the Code applicable to REITs are highly technical and
complex. The material aspects thereof are summarized below.
As a REIT, the Company generally will not be subject to federal corporate
income taxes on its net income that is currently distributed 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, the Company will be subject to federal income tax as
follows. First, the Company will be taxed at regular corporate rates on any
undistributed real estate investment trust taxable income, including
undistributed net capital gains. Second, under certain circumstances, the
Company may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if the Company has (i) net income from the sale or other
disposition of "foreclosure property" which is held primarily for sale to
customers in the ordinary course of business or (ii) other non-qualifying income
from foreclosure property, it will be subject to tax at the highest corporate
rate on such income. Fourth, if the Company has net income from "prohibited
transactions" (which 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), such income will be subject to a 100% tax.
Fifth, if the Company should fail to satisfy the 75% gross income test or the
95% gross income test (as discussed below), but has nonetheless maintained its
qualification as a REIT because certain other requirements have been met, it
will be subject to a 100% tax on an amount equal to (a) the gross income
attributable to the greater of the amount by which the Company fails the 75% or
95% test, multiplied by (b) a fraction intended to reflect the Company's
profitability. Sixth, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its real estate investment trust
ordinary income for such year, (ii) 95% of its real estate investment trust
capital gain net income for such year, and (iii) any undistributed taxable
income from prior periods, the Company would be subject to a 4% excise tax on
the excess of such required distribution over the amounts actually distributed.
Seventh, if during the 10-year period (the "Recognition Period") beginning on
the first day of the first taxable year for which the Company qualified as a
REIT, the Company recognizes gain on the disposition of any asset held by the
Company as of the beginning of the Recognition Period, then, to the extent of
the excess of (a) fair market value of such asset as of the beginning of the
Recognition Period over (b) the Company's adjusted basis in such asset as of the
beginning of the Recognition Period (the "Built-in Gain"), such gain will be
subject to tax at the highest regular corporate rate pursuant to Treasury
regulations that have not been promulgated; provided, however, that the Company
shall not be subject to tax on recognized Built-in Gain with respect to assets
held as of the first day of the Recognition Period to the extent that the
aggregate amount of such recognized Built-in Gain exceeds the net aggregate
amount of the Company's unrealized Built-in Gain as of the first day of the
Recognition Period. Eighth, if the Company acquires any asset from a C
corporation (i.e., generally a corporation subject to full corporate-level tax)
in certain transactions in which the basis of the asset in the hands of the
Company is determined by reference to the basis of the asset (or any other
property) in the hands of the C corporation, and the Company recognizes gain on
the disposition of such asset during the Recognition Period beginning on the
date on which such asset was
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acquired by the Company, then, pursuant to the Treasury regulations that have
not yet been issued and to the extent of the Built-in Gain, such gain will be
subject to tax at the highest regular corporate rate.
Requirements for Qualification
The Code defines a REIT as a corporation, trust or association (1) which is
managed by one or more trustees or directors, (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest, (3) which would otherwise be taxable as a domestic
corporation, but for Sections 856 through 859 of the Code, (4) which is neither
a financial institution nor an insurance company subject to certain provisions
of the Code, (5) the beneficial ownership of which is held by 100 or more
persons, (6) 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 Code to include certain entities)
and (7) which meets certain other tests, described below, regarding the nature
of its income and assets. The Code provides that conditions (1) to (4) must be
met during the entire taxable year and that condition (5) 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. Conditions (5) and (6) do not apply until
after the first taxable year for which an election is made to be taxed as a
REIT.
The Company has satisfied condition (5) and believes that it has also
satisfied condition (6). In addition, the Company's Amended and Restated
Declaration of Trust provides for restrictions regarding the ownership and
transfer of the Company's shares of beneficial interest, which restrictions are
intended to assist the Company in continuing to satisfy the share ownership
requirements described in (5) and (6) above. The ownership and transfer
restrictions pertaining to the Common Shares are described above under the
headings "Description of Shares of Beneficial Interest -- Description of
Preferred Shares -- Restrictions on Ownership" and "Description of Shares of
Beneficial Interest -- Description of Common Shares -- Restrictions on
Ownership."
The Company owns and operates a number of properties through wholly-owned
subsidiaries. Code Section 856(i) provides that a corporation which is a
"qualified REIT subsidiary" shall not be treated as a separate corporation, and
all assets, liabilities, and items of income, deduction, and credit of a
"qualified REIT subsidiary" shall be treated as assets, liabilities and such
items (as the case may be) of the REIT. Thus, in applying the requirements
described herein, the Company's "qualified REIT subsidiaries" will be ignored,
and all assets, liabilities and items of income, deduction, and credit of such
subsidiaries will be treated as assets, liabilities and such items (as the case
may be) of the Company. The Company believes that all of its wholly-owned
subsidiaries are "qualified REIT subsidiaries."
In the case of a REIT that 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 such 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 Code, including satisfying
the gross income tests and the asset tests. Thus, the Company's proportionate
share of the assets, liabilities and items of income of any partnership in which
the Company is a partner will be treated as assets, liabilities and items of
income of the Company for purposes of applying the requirements described
herein.
Income Tests. In order to maintain qualification as a REIT, the Company
annually must satisfy three gross income requirements. First, at least 75% of
the Company's gross income (excluding gross income from prohibited transactions)
for each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property"-- which term generally includes expenses of the Company that are
paid or reimbursed by tenants -- and, in certain circumstances, interest) or
from certain types of temporary investments. Second, at least 95% of the
Company's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived from such real property investments,
dividends, interest and gain from the sale or disposition of stock or securities
(or from any combination of the
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foregoing). Third, 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) must represent less
than 30% of the Company's gross income (including gross income from prohibited
transactions) for each taxable year.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. 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 the terms "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the 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 such tenant (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 such 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 such property, other than
through an independent contractor from whom the REIT derives no revenue;
provided, however, that the Company may directly perform certain services that
are "usually or customarily rendered" in connection with the rental of space for
occupancy only and are not otherwise considered "rendered to the occupant" of
the property. The Company does not and will not charge rent for any property to
a Related Party Tenant, and the Company 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). The Company directly performs
services for certain of its tenants. The Company does not believe that the
provision of such services will cause its gross income attributable to such
tenants to fail to be treated as "rents from real property."
The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such 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 by reason of being based on a fixed percentage or percentages of receipts
or sales.
If the Company 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 such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions will generally be available if the Company's failure to meet such
tests was due to reasonable cause and not due to willful neglect, the Company
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. It is not possible, however, to state whether in all
circumstances the Company would be entitled to the benefit of these relief
provisions. As discussed above under "-- General," even if these relief
provisions apply, a tax would be imposed with respect to the excess net income.
Asset Tests. The Company, 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 the Company's total assets must be represented by
real estate assets (including (i) real estate assets held by the Company's
qualified REIT subsidiaries and the Company's allocable share of real estate
assets held by partnerships in which the Company owns an interest, (ii) stock or
debt instruments held for not more than one year purchased with the proceeds of
a stock offering or long-term (at least five years) debt offering of the Company
and (iii) stock issued by another REIT), cash, cash items and government
securities. Second, not more than 25% of the Company's total assets may be
represented by securities other than those in the 75% asset class. Third, 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 the Company
may not exceed 5% of the value of the Company's total assets and the Company may
not own more than 10% of any one issuer's outstanding voting securities.
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Since March 2, 1995, the Company has owned more than 10% of the voting
securities of Alexander's and the value of such securities may represent more
than 5% of the value of the total assets of the Company. The Company's ownership
interest in Alexander's will not cause the Company to fail to satisfy the asset
tests for REIT status so long as Alexander's qualifies as a REIT. The Company
believes that Alexander's will so qualify commencing with its taxable year
beginning January 1, 1995.
In order to ensure compliance with the 95% gross income test described
above, the Company transferred certain contract rights and obligations to VMC, a
New Jersey corporation, in return for all of VMC's nonvoting preferred stock
(the "Nonvoting Stock"). The Company's ownership of the Nonvoting Stock entitles
it to 95% of the dividends paid by VMC. The Company does not believe that its
ownership of the Nonvoting Stock will adversely affect its ability to satisfy
the asset tests described in the second preceding paragraph.
Annual Distribution Requirements. The Company, 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 (A) the sum of (i) 95% of the
Company's "real estate investment trust taxable income" (computed without regard
to the dividends paid deduction and the Company's net capital gain) and (ii) 95%
of the net income (after tax), if any, from foreclosure property minus (B) the
sum of certain items of non-cash income. In addition, if the Company disposes of
any asset during its Recognition Period, the Company will be required, pursuant
to Treasury regulations which have not yet been promulgated, to distribute at
least 95% of the Built-in Gain (after tax), if any, recognized on the
disposition of such asset. Such distributions must be paid in the taxable year
to which they relate, or in the following taxable year if declared before the
Company timely files its tax return for such year and if paid on or before the
first regular dividend payment after such declaration. To the extent that the
Company does not distribute all of its net capital gain or distributes at least
95%, but less than 100%, of its "real estate investment trust taxable income,"
as adjusted, it will be subject to tax thereon at regular ordinary and capital
gain corporate tax rates. Furthermore, if the Company should fail to distribute
during each calendar year at least the sum of (i) 85% of its ordinary income for
such year, (ii) 95% of its capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. The Company intends to satisfy the annual distribution
requirements.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of the Company. In the event that
such timing differences occur, in order to meet the 95% distribution
requirement, the Company 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, the Company 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 the Company's
deduction for dividends paid for the earlier year. Thus, the Company may be able
to avoid being taxed on amounts distributed as deficiency dividends; however,
the Company will be required to pay interest based upon the amount of any
deduction taken for deficiency dividends.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to shareholders will be taxable as
ordinary income and, subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions,
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the Company will also be disqualified from taxation as a REIT for the four
taxable years following the year during which qualification was lost. It is not
possible to state whether in all circumstances the Company would be entitled to
such statutory relief.
TAXATION OF HOLDERS OF DEBT SECURITIES
As used herein, the term "U.S. Holder" means a holder of a Debt Security
who (for United States Federal income tax purposes) is (i) a citizen or resident
of the United States, (ii) a domestic corporation or (iii) otherwise subject to
United States Federal income taxation on a net income basis in respect of the
Debt Security and "U.S. Alien Holder" means a holder of a Debt Security who (for
United States Federal income tax purposes) is (i) a nonresident alien individual
or (ii) a foreign corporation, partnership or estate or trust which is not
subject to United States Federal income tax on a net income basis in respect of
income or gain from the Debt Security.
U.S. Holders
Payments of Interest. Interest on a Debt Security will be taxable to a
U.S. Holder as ordinary income at the time it is received or accrued, depending
on the holder's method of accounting for tax purposes.
Purchase, Sale and Retirement of the Debt Securities. A U.S. Holder's tax
basis in a Debt Security will generally be its U.S. dollar cost (including, in
the case of a Debt Security acquired through the exercise of a Debt Warrant,
both the cost of the Debt Warrant and the amount paid on exercise of the Debt
Warrant). A U.S. Holder will generally recognize gain or loss on the sale or
retirement of a Debt Security equal to the difference between the amount
realized on the sale or retirement and the U.S. Holder's tax basis in the Debt
Security. Except to the extent attributable to accrued but unpaid interest, gain
or loss recognized on the sale or retirement of a Debt Security will be capital
gain or loss and will be long-term capital gain or loss if the Debt Security was
held for more than one year.
U.S. Alien Holders
This discussion assumes that the Debt Security is not subject to the rules
of Section 871(h)(4)(A) of the Code (relating to interest payments that are
determined by reference to the income, profits, changes in the value of property
or other attributes of the debtor or a related party).
Under present United States federal income and estate tax law, and subject
to the discussion of backup withholding below:
(i) payments of principal, premium (if any) and interest by the Company or
any of its paying agents to any holder of a Debt Security that is a U.S. Alien
Holder will not be subject to United States Federal withholding tax if, in the
case of interest (a) the beneficial owner of the Debt Security does not actually
or constructively own 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote, (b) the beneficial owner of
the Debt Security is not a controlled foreign corporation that is related to the
Company through stock ownership, and (c) either (A) the beneficial owner of the
Debt Security certifies to the Company or its agent, under penalties of perjury,
that it is not a U.S. person and provides its name and address or (B) a
securities clearing organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or business (a
"financial institution") and holds the Debt Security certifies to the Company or
its agent under penalties of perjury that such statement has been received from
the beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof;
(ii) a U.S. Alien Holder of a Debt Security will not be subject to United
States Federal withholding tax on any gain realized on the sale or exchange of a
Debt Security; and
(iii) a Debt Security held by an individual who at death is not a citizen
or resident of the United States will not be includible in the individual's
gross estate for purposes of the United States Federal estate tax as a result of
the individual's death if (a) the individual did not actually or constructively
own 10% or more of the total combined voting power of all classes of stock of
the Company entitled to vote
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and (b) the income on the Debt Security would not have been effectively
connected with a United States trade or business of the individual at the time
of the individual's death.
Information Reporting and Backup Withholding
U.S. Holders. In general, information reporting requirements will apply to
payments of principal, any premium and interest on a Debt Security and the
proceeds of the sale of a Debt Security before maturity within the United States
to non-corporate U.S. Holders, and "backup withholding" at a rate of 31% will
apply to such payments if the U.S. Holder fails to provide an accurate taxpayer
identification number or to report all interest and dividends required to be
shown on its federal income tax returns.
U.S. Alien Holders. Information reporting and backup withholding will not
apply to payments of principal, premium (if any) and interest made by the
Company or a paying agent to a U.S. Alien Holder on a Debt Security if the
certification described in clause (i)(c) under "U.S. Alien Holders" above is
received, provided that the payor does not have actual knowledge that the holder
is a U.S. person.
Payments of the proceeds from the sale by a U.S. Alien Holder of a Debt
Security made to or through a foreign office of a broker will not be subject to
information reporting or backup withholding, except that if the broker is a U.S.
person, a controlled foreign corporation for United States Federal income tax
purposes or a foreign person 50% or more of whose gross income is effectively
connected with a United States trade or business for a specified three-year
period, information reporting may apply to such payments. Payments of the
proceeds from the sale of a Debt Security to or through the United States office
of a broker is subject to information reporting and backup withholding unless
the holder or beneficial owner certifies as to its non-United States status or
otherwise establishes an exemption from information reporting and backup
withholding.
The applicable Prospectus Supplement will contain a discussion of any
special United States Federal income tax rules with respect to Debt Securities
that are issued at a discount or premium or as a unit with other Securities,
have a maturity of one year or less, provide for conversion rights, contingent
payments, early redemption or payments that are denominated in or determined by
reference to a currency other than the U.S. dollar or otherwise subject to
special United States Federal income tax rules.
TAXATION OF HOLDERS OF DEBT WARRANTS
Sale or Expiration
Generally, a holder of a Debt Warrant will recognize gain or loss upon the
sale or other disposition of a Debt Warrant in an amount equal to the difference
between the amount realized on such sale or other disposition and the holder's
tax basis in the Debt Warrant. A holder of a Debt Warrant that expires
unexercised will generally recognize loss in an amount equal to such holder's
tax basis in the Debt Warrant. Gain or loss resulting from the sale, other
disposition or expiration of a Debt Warrant will generally be capital gain or
loss and will be long-term if the Debt Warrant was held for more than one year.
Exercise
The exercise of a Debt Warrant with cash will not be a taxable event for
the exercising holder. Such holder's basis in the Debt Securities received on
exercise of the Debt Warrant will equal the sum of such holder's tax basis in
the exercised Debt Warrant and the exercise price of the Debt Warrant. The
holding period in a Debt Security received on exercise of a Debt Warrant will
not include the period during which the Debt Warrant was held.
The applicable Prospectus Supplement will contain a discussion of any
special United States Federal income tax rules with respect to Debt Warrants
that are issued as a unit with other Securities.
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TAXATION OF HOLDERS OF COMMON SHARES OR PREFERRED SHARES
U.S. Shareholders
As used herein, the term "U.S. Shareholder" means a holder of Common Shares
or Preferred Shares ("Shares") who (for United States Federal income tax
purposes) is (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or of any political subdivision thereof, or (iii) an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
As long as the Company qualifies as a REIT, distributions made by the
Company 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. Such distributions will not be
eligible for the dividends-received deduction in the case of U.S. Shareholders
that are corporations. Distributions made by the Company that are properly
designated by the Company as capital gain dividends will be taxable to U.S.
Shareholders as long-term capital gains (to the extent that they do not exceed
the Company's actual net capital gain for the taxable year) without regard to
the period for which a U.S. Shareholder has held his shares. 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 the Company makes distributions (not designated as
capital gain dividends) in excess of its current and accumulated earnings and
profits, such distributions will be treated first as a tax-free return of
capital to each U.S. Shareholder, reducing the adjusted basis which such U.S.
Shareholder has in his shares for tax purposes by the amount of such
distribution (but not below zero), with distributions in excess of a U.S.
Shareholder's adjusted basis in his shares 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 a 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
declared by the Company in October, November, or December of any year and
payable to a shareholder of record on a specified date in any such month shall
be treated as both paid by the Company and received by the shareholder on
December 31 of such year, provided that the dividend is actually paid by the
Company 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 the Company.
Distributions made by the Company and gain arising from the sale or
exchange by a U.S. Shareholder of Shares will not be treated as passive activity
income, and, as a result, U.S. Shareholders generally will not be able to apply
any "passive losses" against such income or gain. Distributions made by the
Company (to the extent they do not constitute a return of capital or capital
gain dividends) generally will be treated as investment income for purposes of
computing the investment interest deduction limitation. Gain arising from the
sale or other disposition of Shares, however, will not be treated as investment
income unless the U.S. Shareholder elects to reduce the amount of his total net
capital gain eligible for the 28% maximum capital gains rate by the amount of
such gain with respect to the Shares.
Upon any sale or other disposition of Shares, a U.S. Shareholder will
recognize gain or loss for federal income tax purposes in an amount equal to the
difference between (i) the amount of cash and the fair market value of any
property received on such sale or other disposition, and (ii) the holder's
adjusted basis in the Shares for tax purposes. Such gain or loss will be capital
gain or loss if the Shares have been held by the U.S. Shareholders as a capital
asset, and will be long-term gain or loss if such Shares have been held for more
than one year. In general, any loss recognized by a U.S. Shareholder upon the
sale or other disposition of shares of the Company that have been held for six
months or less (after applying certain holding period rules) will be treated as
a long-term capital loss, to the extent of distributions received by such U.S.
Shareholder from the Company which were required to be treated as long-term
capital gains.
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Backup Withholding. The Company will report to its U.S. Shareholders and
the Internal Revenue Service (the "IRS") the amount of dividends paid during
each calendar year, and the amount of tax withheld, if any. Under the backup
withholdings rules, a shareholder may be subject to backup withholding at the
rate of 31% with respect to dividends paid unless such 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. A U.S.
Shareholder that does not provide the Company with his correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the shareholder's
income tax liability. In addition, the Company may be required to withhold a
portion of capital gain distributions to any shareholders who fail to certify
their non-foreign status to the Company.
Taxation of Tax-Exempt Shareholders. Generally, a tax-exempt investor that
is exempt from tax on its investment income, such as an individual retirement
account (IRA) or a 401(k) plan, that holds the Common Shares as an investment
will not be subject to tax on dividends paid by the Company. However, if such
tax-exempt investor is treated as having purchased its Common Shares with
borrowed funds, some or all of its dividends will be subject to tax.
Non-U.S. Shareholders
The rules governing United States federal income taxation of the ownership
and dispositions of Shares by persons that are, for purposes of such taxation,
nonresident alien individuals, foreign corporations, foreign partnerships or
foreign estates or trusts (collectively, "Non-U.S. Shareholders") are complex,
and no attempt is made herein to provide more than a brief summary of such
rules. Accordingly, the discussion does not address all aspects of United States
Federal income taxation and does not address state, local or foreign tax
consequences that may be relevant to a Non-U.S. Shareholder in light of its
particular circumstances. In addition, this discussion is based on current law,
which is subject to change, and assumes that the Company qualifies for taxation
as a REIT. Prospective Non-U.S. Shareholders are urged to consult with their own
tax advisers to determine the impact of federal, state, local and foreign income
tax laws with regard to an investment in stock, including any reporting
requirements.
Distributions. Distributions by the Company to a Non-U.S. Shareholder that
are neither attributable to gain from sales or exchanges by the Company of
United States real property interests nor designated by the Company as capital
gains dividends will be treated as dividends of ordinary income to the extent
that they are made out of current or accumulated earnings and profits of the
Company. Such distributions ordinarily will be subject to withholding of United
States federal tax on a gross basis (that is, without allowance of deductions)
at a 30% rate or such lower rate as may be specified by an applicable income tax
treaty, unless the dividends are treated as effectively connected with the
conduct by the Non-U.S. Shareholder of a United States trade or business.
Dividends that are effectively connected with such a trade or business will be
subject to tax on a net basis (that is, after allowance of deductions) at
graduated rates, in the same manner as domestic shareholders are taxed with
respect to such dividends and are generally not subject to withholding. Any such
dividends received by a Non-U.S. Shareholder that is a corporation may also be
subject to an additional branch profits tax at a 30% rate or such lower rate as
may be specified by an applicable income tax treaty.
Pursuant to current Treasury regulations, dividends paid to an address in a
country outside the United States are generally presumed to be paid to a
resident of such country for purposes of determining the applicability of
withholding discussed above and the applicability of a tax treaty rate. Under
proposed Treasury regulations, which are not currently in effect, however, a
Non-U.S. Shareholder who wished to claim the benefit of an applicable treaty
rate would be required to satisfy certain certification and other requirements.
Under certain treaties, lower withholding rates generally applicable to
dividends do not apply to dividends from a REIT, such as the Company. Certain
certification and
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<PAGE> 44
disclosure requirements must be satisfied to be exempt from withholding under
the effectively connected income exemption discussed above.
Distributions in excess of current or accumulated earnings and profits of
the Company will not be taxable to a Non-U.S. Shareholder to the extent that
they do not exceed the adjusted basis of the shareholder's Shares, but rather
will reduce the adjusted basis of such stock. To the extent that such
distributions exceed the adjusted basis of a Non-U.S. Shareholder's stock, they
will give rise to gain from the sale or exchange of his stock, the tax treatment
of which is described below. For withholding purposes, the Company is required
to treat all distributions as if made out of current or accumulated earnings and
profits. However, amounts thus withheld are generally refundable if it is
subsequently determined that such distribution was, in fact, in excess of
current or accumulated earnings and profits of the Company.
Distributions to a Non-U.S. Shareholder that are designated by the Company
at the time of distributions as capital gains dividends (other than those
arising from the disposition of a United States real property interest)
generally will not be subject to United States federal income taxation, unless
(i) investment in the Shares is effectively connected with the Non-U.S.
Shareholder's United States trade or business, in which case the Non-U.S.
Shareholder will be subject to the same treatment as domestic shareholders with
respect to such gain (except that a shareholder that is a foreign corporation
may also be subject to the 30% branch profits tax, as discussed above), or (ii)
the Non-U.S. Shareholder is a nonresident alien individual who is present in the
United States for 183 or more days during the taxable year and has a "tax home"
in the United States, in which case the nonresident alien individual will be
subject to a 30% tax on the individual's capital gains.
Distributions to a Non-U.S. Shareholder that are attributable to gain from
sales or exchanges by the Company of United States real property interests will
cause the Non-U.S. Shareholder to be treated as recognizing such gain as income
effectively connected with a United States trade or business. Non-U.S.
Shareholders would thus generally be taxed at the same rates applicable to
domestic shareholders (subject to a special alternative minimum tax in the case
of nonresident alien individuals). The Company is required to withhold 35% of
any such distribution. That amount is creditable against the Non-U.S.
Shareholder's United States federal income tax liability. Also, such
distribution may be subject to a 30% branch profits tax in the hands of a
Non-U.S. Shareholder that is a corporation, as discussed above.
Sale of Stock. Gain recognized by a Non-U.S. Shareholder upon the sale or
exchange of Shares generally will not be subject to United States taxation
unless the Shares constitute a "United States real property interest" within the
meaning of the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA").
The Shares will not constitute a "United States real property interest" so long
as the Company is a "domestically controlled REIT." A "domestically controlled
REIT" is a REIT in which at all times during a specified testing period less
than 50% in value of its stock is held directly or indirectly by Non-U.S.
Shareholders. Notwithstanding the foregoing, gain from the sale or exchange of
Shares not otherwise subject to FIRPTA will be taxable to a Non-U.S. Shareholder
if the Non-U.S. Shareholder is a nonresident alien individual who is present in
the United States for 183 days or more during the taxable year and has a "tax
home" in the United States. In such case, the nonresident alien individual will
be subject to a 30% United States withholding tax in the amount of such
individual's gain.
If the Company is not or ceases to be a "domestically-controlled REIT,"
whether gain arising from the sale or exchange by a Non-U.S. Shareholder of
Shares would be subject to United States taxation under FIRPTA as a sale of a
"United States real property interest" will depend on whether the Shares are
"regularly traded" (as defined by applicable Treasury regulations) on an
established securities market (e.g., the New York Stock Exchange) and on the
size of the selling Non-U.S. Shareholder's interest in the Company. If gain on
the sale or exchange of Shares were subject to taxation under FIRPTA, the
Non-U.S. Shareholder would be subject to regular United States income tax with
respect to such gain in the same manner as a U.S. Shareholder (subject to any
applicable alternative minimum tax and a special alternative minimum tax in the
case of nonresident alien individuals) and the purchaser of the Shares would be
required to withhold and remit to the IRS 10% of the purchase price.
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Backup Withholding and Information Reporting. Backup withholding tax
(which generally is a withholding tax imposed at the rate of 31% on certain
payments to persons that fail to furnish certain information under the United
States information reporting requirements) and information reporting will
generally not apply to distributions paid to Non-U.S. Shareholders outside the
United States that are treated as (i) dividends subject to the 30% (or lower
treaty rate) withholding tax discussed above, (ii) capital gains dividends or
(iii) distributions attributable to gain from the sale or exchange by the
Company of United States real property interests. As a general matter, backup
withholding and information reporting will not apply to a payment of the
proceeds of a sale of Shares by or through a foreign office of a foreign broker.
Information reporting (but not backup withholding) will apply, however, to a
payment of the proceeds of a sale of Shares by or through a foreign office of a
broker that (a) is a U.S. person, (b) derives 50% or more of its gross income
for certain periods from the conduct of a trade or business in the United States
or (c) is a "controlled foreign corporation" (generally, a foreign corporation
controlled by United States shareholders) for United States Federal income tax
purposes, unless the broker has documentary evidence in its records that the
holder is a Non-U.S. Shareholder and certain other conditions are met, or the
shareholder otherwise establishes an exemption. Payment to or through a United
States office of a broker of the proceeds of a sale of Shares is subject to both
backup withholding and information reporting unless the shareholder certifies
under penalties of perjury that the shareholder is a Non-U.S. Shareholder, or
otherwise establishes an exemption. A Non-U.S. Shareholder may obtain a refund
of any amounts withheld under the backup withholding rules by filing the
appropriate claim for refund with the IRS.
Estate Tax. Shares owned by an individual who is not a citizen or resident
of the United States (as determined for purposes of U.S. Federal estate tax law)
at the time of death will generally be includible in such individual's gross
estate for federal estate tax purposes unless an applicable estate tax treaty
provides otherwise.
OTHER TAX CONSEQUENCES
The Company and its shareholders may be subject to state or local taxation
in various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of the Company
and its shareholders may not conform to the federal income tax consequences
discussed above. Consequently, prospective shareholders are urged to consult
their own tax advisors regarding the effect of state and local tax laws on an
investment in the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the related Prospectus Supplement. The Company
has reserved the right to sell the Securities directly to investors on its own
behalf in those jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices
that may be changed or at negotiated prices. The Company also may, from time to
time, authorize dealers, acting as the Company's agents, to offer and sell the
Securities upon such terms and conditions as set forth in the related Prospectus
Supplement. In connection with the sale of the Securities, underwriters may
receive compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell the Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concession or commissions from the underwriters and/or commissions
(which may be changed from time to time) from the purchasers for whom they may
act as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the related Prospectus Supplement. Dealers and agents
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participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with the Company, to
indemnification against and contribution towards certain civil liabilities,
including any liabilities under the Securities Act.
If so indicated in the related Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit agreements by
certain institutions to purchase the Securities from the Company at the public
offering price set forth in the related Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in a Prospectus Supplement. Each Contract will be for
an amount specified in the applicable Prospectus Supplement. Institutions, with
whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be subject
to the approval of the Company. Contracts will not be subject to any conditions
except that (i) the purchase by an institution of the Securities covered by
Contracts will not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject and (ii)
if the Securities are being sold to Underwriters, the Company shall have sold to
such Underwriters such amount specified in the applicable Prospectus Supplement.
Any Securities issued hereunder (other than Common Shares) will be new
issues of securities with no established trading market. Any underwriters or
agents to or through whom such Securities are sold by the Company for public
offering and sale may make a market in such Securities, but such underwriters or
agents will not be obligated to do so and may discontinue any market at any time
without notice. No assurance can be given as to the liquidity of the trading
market for any such Securities.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with, and perform services for, the Company and certain
of its affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedules incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1994
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 such firm given upon their authority
as experts in accounting and auditing.
The consolidated financial statements and the related consolidated
financial statement schedules of Alexander's, Inc. and the financial statements
of Kings Plaza Shopping Center and Marina incorporated in this Prospectus by
reference from the Annual Report on Form 10-K/A of Alexander's, Inc. for the
year ended December 31, 1994 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
The validity of any Debt Securities or Debt Warrants issued hereunder will
be passed upon for the Company by Sullivan & Cromwell, New York, New York,
counsel to the Company, and the validity of any Preferred Shares, Depositary
Shares or Common Shares issued hereunder will be passed upon for the Company by
Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland, counsel to the Company.
The validity of any Securities issued hereunder will be passed upon for any
underwriters by the counsel named in the applicable Prospectus Supplement.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Company............................. S-2
The Offering............................ S-3
Use of Proceeds......................... S-3
Capitalization.......................... S-4
Price Range of the Common Shares and
Distributions......................... S-5
Certain Federal Income Tax
Considerations........................ S-5
Underwriting............................ S-7
Available Information................... S-7
Validity of the Common Shares........... S-7
PROSPECTUS
Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 2
Risk Factors............................ 3
The Company............................. 6
Use of Proceeds......................... 8
Consolidated Ratios of Earnings to Fixed
Charges and Combined Fixed Charges and
Preferred Share Dividend
Requirements.......................... 8
Description of Debt Securities.......... 8
Description of Shares of Beneficial
Interest.............................. 17
Description of Debt Warrants............ 27
Federal Income Tax Considerations....... 28
Plan of Distribution.................... 38
Experts................................. 39
Validity of the Securities.............. 39
</TABLE>
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1,500,000 SHARES
LOGO
COMMON SHARES
OF BENEFICIAL INTEREST
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PROSPECTUS SUPPLEMENT
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GOLDMAN, SACHS & CO.
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