Use these links to rapidly review the document
Table of Contents
PART IV
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
|
|
|
|
ý
|
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the fiscal year ended December 31, 2009
|
or
|
o
|
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Commission file number 1-9317
HRPT PROPERTIES TRUST
(Exact Name of Registrant as Specified in Its Charter)
|
|
|
|
Maryland
(State of Organization)
|
|
04-6558834
(IRS Employer Identification No.)
|
400 Centre Street, Newton, Massachusetts 02458
(Address of Principal Executive Offices) (Zip Code)
|
617-332-3990
(Registrant's telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Act:
|
|
|
|
|
Title Of Each Class
|
|
Name of Each Exchange On Which Registered
|
|
Common Shares of Beneficial Interest
|
|
New York Stock Exchange
|
|
8
3
/
4
% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest
|
|
New York Stock Exchange
|
|
7
1
/
8
% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest
|
|
New York Stock Exchange
|
|
6
1
/
2
% Series D Cumulative Convertible Preferred Shares of Beneficial Interest
|
|
New York Stock Exchange
|
|
7.50% Senior Notes due 2019
|
|
New York Stock Exchange
|
Securities
registered pursuant to section 12(g) of the Act: None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes
ý
No
o
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the
Act. Yes
o
No
ý
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the
past 90 days. Yes
ý
No
o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter
period that the registrant was required to submit and post such
files). Yes
o
No
o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not
be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K.
ý
Indicate by check mark whether the registrant is a large accelerated filer, and accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of "large accelerated flier," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
|
|
Large accelerated filer
ý
|
|
Accelerated filer
o
|
|
Non-accelerated filer
o
(Do not check if a
smaller reporting company)
|
|
Smaller reporting company
o
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange
Act). Yes
o
No
ý
The aggregate market value of the voting common shares of the registrant held by non-affiliates was $899.7 million based on the $4.06 closing
price per common share for such stock on the New York Stock Exchange on June 30, 2009. For purposes of this calculation, an aggregate of 1,101,784 common shares of beneficial interest, $0.01
par value, held directly or by affiliates of the trustees and the officers of the registrant, plus 1,000,000 common shares held by Senior Housing Properties Trust, have been included in the number of
common shares held by affiliates.
Number
of the registrant's common shares outstanding as of February 23, 2010: 223,860,241.
References
in this Annual Report on Form 10-K to the "Company", "HRP", "we", "us" or "our" include consolidated subsidiaries, unless the context indicates otherwise.
DOCUMENTS INCORPORATED BY REFERENCE
Certain Information required by Items 10, 11, 12, 13 and 14 of Part III of this Annual Report on
Form 10-K is incorporated herein by reference to our to be filed definitive Proxy Statement for the 2010 Annual Meeting of Shareholders scheduled to be held on April 14,
2010, or our definitive Proxy Statement.
Table of Contents
WARNING CONCERNING FORWARD LOOKING STATEMENTS
THIS ANNUAL REPORT ON FORM 10-K CONTAINS STATEMENTS AND IMPLICATIONS WHICH CONSTITUTE FORWARD LOOKING STATEMENTS WITHIN THE
MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND OTHER FEDERAL SECURITIES LAWS. WHENEVER WE USE WORDS SUCH AS "BELIEVE", "EXPECT", "ANTICIPATE", "INTEND", "PLAN", "ESTIMATE"
OR SIMILAR EXPRESSIONS, WE ARE MAKING FORWARD LOOKING STATEMENTS. THESE FORWARD LOOKING STATEMENTS ARE BASED UPON OUR PRESENT INTENT, BELIEFS OR EXPECTATIONS, BUT FORWARD LOOKING STATEMENTS ARE NOT
GUARANTEED TO OCCUR AND MAY NOT OCCUR. FORWARD LOOKING STATEMENTS IN THIS REPORT RELATE TO VARIOUS ASPECTS OF OUR BUSINESS, INCLUDING:
-
•
-
THE CREDIT QUALITY OF OUR TENANTS,
-
•
-
THE LIKELIHOOD THAT OUR TENANTS WILL PAY RENT, RENEW LEASES, SIGN NEW LEASES OR BE AFFECTED BY CYCLICAL ECONOMIC
CONDITIONS,
-
•
-
OUR ACQUISITIONS AND SALES OF PROPERTIES,
-
•
-
OUR ABILITY TO COMPETE EFFECTIVELY,
-
•
-
OUR ABILITY TO PAY INTEREST ON AND PRINCIPAL OF OUR DEBT,
-
•
-
OUR ABILITY TO PAY DISTRIBUTIONS TO SHAREHOLDERS, AND THE AMOUNT OF SUCH DISTRIBUTIONS,
-
•
-
OUR POLICIES AND PLANS REGARDING INVESTMENTS AND FINANCINGS,
-
•
-
THE FUTURE AVAILABILITY OF BORROWINGS UNDER, AND OUR ABILITY TO RENEW OR REFINANCE, OUR REVOLVING CREDIT FACILITY,
-
•
-
OUR TAX STATUS AS A REAL ESTATE INVESTMENT TRUST, OR REIT,
-
•
-
OUR ABILITY TO RAISE EQUITY OR DEBT,
-
•
-
OUR EXPECTATION THAT WE WILL BENEFIT FINANCIALLY BY PARTICIPATING IN THE INSURANCE COMPANY FORMED WITH REIT
MANAGEMENT & RESEARCH LLC, OR RMR, AND COMPANIES TO WHICH RMR PROVIDES MANAGEMENT SERVICES, AND
-
•
-
OTHER MATTERS.
OUR
ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE CONTAINED IN OR IMPLIED BY THE FORWARD LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS. FACTORS THAT COULD HAVE A MATERIAL ADVERSE
EFFECT ON OUR FORWARD LOOKING STATEMENTS AND UPON OUR BUSINESS, RESULTS OF OPERATIONS, FINANCIAL CONDITION, FUNDS FROM OPERATIONS, CASH FLOWS, LIQUIDITY AND PROSPECTS INCLUDE, BUT ARE NOT LIMITED
TO:
-
•
-
THE IMPACT OF CHANGES IN THE ECONOMY AND THE CAPITAL MARKETS ON US AND OUR TENANTS,
-
•
-
COMPETITION WITHIN THE REAL ESTATE INDUSTRY OR THOSE INDUSTRIES IN WHICH OUR TENANTS OPERATE,
-
•
-
ACTUAL AND POTENTIAL CONFLICTS OF INTEREST WITH OUR MANAGING TRUSTEES AND RMR AND ITS RELATED ENTITIES AND CLIENTS,
-
•
-
COMPLIANCE WITH, AND CHANGES TO, FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS, ACCOUNTING RULES, TAX RATES AND SIMILAR
MATTERS, AND
Table of Contents
-
•
-
LIMITATIONS IMPOSED ON OUR BUSINESS AND OUR ABILITY TO SATISFY COMPLEX RULES IN ORDER FOR US TO QUALIFY AS A REIT FOR U.S.
FEDERAL INCOME TAX PURPOSES.
FOR
EXAMPLE:
-
•
-
IF THE AVAILABILITY OF DEBT CAPITAL REMAINS OR BECOMES MORE RESTRICTED, WE MAY BE UNABLE TO REFINANCE OR REPAY OUR DEBT
OBLIGATIONS WHEN THEY BECOME DUE OR ON TERMS WHICH ARE AS FAVORABLE AS WE NOW HAVE,
-
•
-
THE CURRENT HIGH UNEMPLOYMENT RATE IN THE U.S. MAY CONTINUE FOR A LONG TIME OR BECOME WORSE IN THE FUTURE. SUCH
CIRCUMSTANCES MAY FURTHER REDUCE DEMAND FOR LEASING OFFICE AND INDUSTRIAL SPACE. IF THE DEMAND FOR LEASING OFFICE AND INDUSTRIAL SPACE BECOMES SERIOUS OR FURTHER DEPRESSED, OCCUPANCY AND OPERATING
RESULTS OF OUR PROPERTIES MAY DECLINE,
-
•
-
CONTINGENCIES IN OUR COMMITTED ACQUISITIONS MAY CAUSE THESE TRANSACTIONS NOT TO OCCUR OR TO BE DELAYED,
-
•
-
OUR ABILITY TO MAKE FUTURE DISTRIBUTIONS DEPENDS UPON A NUMBER OF FACTORS, INCLUDING OUR FUTURE EARNINGS. WE MAY BE UNABLE
TO MAINTAIN OUR CURRENT RATE OF DISTRIBUTIONS ON OUR COMMON SHARES OR PREFERRED SHARES AND FUTURE DISTRIBUTIONS MAY BE SUSPENDED OR PAID AT A LESSER RATE THAN THE DISTRIBUTIONS WE NOW PAY,
-
•
-
OUR ABILITY TO GROW OUR BUSINESS AND INCREASE OUR DISTRIBUTIONS DEPENDS IN LARGE PART UPON OUR ABILITY TO BUY PROPERTIES
AND LEASE THEM FOR RENTS THAT EXCEED OUR CAPITAL COSTS. WE MAY BE UNABLE TO IDENTIFY PROPERTIES THAT WE WANT TO ACQUIRE OR TO NEGOTIATE ACCEPTABLE PURCHASE PRICES, ACQUISITION FINANCING OR LEASE TERMS
FOR NEW PROPERTIES,
-
•
-
SOME OF OUR TENANTS MAY NOT RENEW EXPIRING LEASES, AND WE MAY BE UNABLE TO LOCATE NEW TENANTS TO MAINTAIN THE HISTORICAL
OCCUPANCY RATES OF OUR PROPERTIES,
-
•
-
OUR PARTICIPATION IN AFFILIATES INSURANCE COMPANY, OR AIC, INVOLVES POTENTIAL FINANCIAL RISKS AND REWARDS TYPICAL OF ANY
START UP BUSINESS VENTURE AS WELL AS OTHER FINANCIAL RISKS AND REWARDS SPECIFIC TO INSURANCE COMPANIES. AMONG THE RISKS THAT ARE SPECIFIC TO INSURANCE COMPANIES IS THE RISK THAT AIC MAY NOT BE ABLE TO
ADEQUATELY PAY CLAIMS. TO THE EXTENT WE PURCHASE INSURANCE FROM AIC IN THE FUTURE AND AIC IS UNABLE TO FINANCE CLAIMS, WE COULD BE UNDERINSURED AND FACE INCREASED COSTS FOR CLAIMS THAT MIGHT OTHERWISE
HAVE BEEN FUNDED IF INSURANCE WAS PURCHASED FROM FINANCIALLY MORE SECURE INSURERS. ACCORDINGLY, OUR EXPECTED FINANCIAL BENEFITS FROM OUR INITIAL OR FUTURE INVESTMENTS IN AIC MAY BE DELAYED OR MAY NOT
OCCUR AND AIC MAY REQUIRE A LARGER INVESTMENT THAN WE EXPECT, AND
-
•
-
OTHER RISKS MAY ADVERSELY IMPACT US, AS DESCRIBED MORE FULLY UNDER "ITEM 1A. RISK FACTORS".
THESE
RESULTS COULD OCCUR DUE TO MANY DIFFERENT CIRCUMSTANCES, SOME OF WHICH ARE BEYOND OUR CONTROL, SUCH AS CHANGES IN OUR TENANTS' FINANCIAL CONDITIONS OR THE MARKET DEMAND FOR LEASED
SPACE, OR CHANGES IN THE CAPITAL MARKETS OR THE ECONOMY GENERALLY.
Table of Contents
THE
INFORMATION CONTAINED ELSEWHERE IN THIS ANNUAL REPORT ON FORM 10-K OR INCORPORATED HEREIN BY REFERENCE IDENTIFIES OTHER IMPORTANT FACTORS THAT COULD CAUSE DIFFERENCES
FROM OUR FORWARD LOOKING STATEMENTS.
YOU
SHOULD NOT PLACE UNDUE RELIANCE UPON OUR FORWARD LOOKING STATEMENTS.
EXCEPT
AS REQUIRED BY LAW, WE DO NOT INTEND TO UPDATE OR CHANGE ANY FORWARD LOOKING STATEMENTS AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
STATEMENT CONCERNING LIMITED LIABILITY
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING HRPT PROPERTIES TRUST, DATED JULY 1, 1994, AS AMENDED AND SUPPLEMENTED, AS
FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HRPT PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HRPT PROPERTIES TRUST. ALL PERSONS DEALING WITH HRPT PROPERTIES TRUST IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF HRPT
PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
HRPT PROPERTIES TRUST
2009 FORM 10-K ANNUAL REPORT
Table of Contents
-
*
-
Incorporated
by reference to our Proxy Statement to be filed pursuant to Regulation 14A.
Table of Contents
PART I
Item 1. Business.
The Company.
We are a real estate investment trust, or REIT, formed in 1986 under the laws of the State of Maryland. Our primary
business is the
ownership and operation of real estate, including office and industrial buildings and leased industrial land. For a discussion and information regarding our operating segments, see our financial
statements beginning on page F-1.
As
of December 31, 2009, we owned 518 properties for a total investment of $6.3 billion at cost, and a depreciated book value of $5.4 billion, excluding properties
classified as held for sale. Our portfolio, exclusive of properties held for sale, includes 332 office properties with 35.3 million square feet and 186 industrial and other properties with
31.5 million square feet. Our 186 industrial and other properties include 17.9 million square feet of leased industrial and commercial lands in Oahu, Hawaii. In addition, we owned
9,950,000, or 46.3%, at December 31, 2009, and 31.8% at February 23, 2010, of the common shares of beneficial interest of Government Properties Income Trust, or GOV, a former subsidiary
that is now separately listed on the New York Stock Exchange, or the NYSE. GOV is a REIT that owns properties that are majority leased to government tenants.
Our
principal executive offices are located at 400 Centre Street, Newton, Massachusetts 02458, and our telephone number is (617) 332-3990.
Our
investment, financing and disposition policies are established by our Board of Trustees and may be changed by our Board of Trustees at any time without shareholder approval. Our
investment goals are current income for distribution to shareholders and capital growth from appreciation in the value of properties. Our income is derived primarily from rents.
Investment Policies.
In evaluating potential investments and asset sales, we consider various factors, including but not limited to,
the
following:
-
•
-
the historic and projected rents received and likely to be received from the property;
-
•
-
the historic and expected operating expenses, including real estate taxes, incurred and expected to be incurred at the
properties;
-
•
-
the growth, tax and regulatory environments of the market in which the property is located;
-
•
-
the quality, experience, and credit worthiness of the property's tenants;
-
•
-
occupancy and demand for similar properties in the same or nearby markets;
-
•
-
the construction quality, physical condition and design of the property;
-
•
-
the geographic area and type of property; and
-
•
-
the pricing of comparable properties as evidenced by recent arm's length market sales.
We
attempt to acquire properties which will enhance the diversity of our portfolio with respect to tenants and locations. However, we have no policies which specifically limit the
percentage of our assets which may be invested in any individual property, in any one type of property, in properties in one geographic area, in properties leased to any one tenant or in properties
leased to an affiliated group of tenants. We have, however, entered into separate agreements with two of our former wholly owned subsidiaries, GOV and Senior Housing Properties Trust, or SNH, that
place certain restrictions on our ability to invest, in the case of GOV's agreement, in properties majority leased to government tenants or, in the case of SNH's agreement, in medical office, clinic
and biomedical, pharmaceutical and laboratory buildings (subject, in the case of mixed use buildings, to our retaining the right to invest in any mixed use building for which the rentable square
footage is less than 50% medical office, clinic
1
Table of Contents
and
biomedical, pharmaceutical and laboratory use). We do not believe that these restrictions limit our ability to achieve a diverse portfolio with respect to tenants.
We
prefer wholly owned investments in fee interests. However, circumstances may arise in which we may invest in leaseholds, joint ventures, mortgages and other real estate interests. We
may invest in real estate joint ventures if we conclude that by doing so we may benefit from the participation of co-venturers or that our opportunity to participate in the investment is
contingent on the use of a joint venture structure. We may invest in participating, convertible or other types of mortgages if we conclude that by doing so we may benefit from the cash flow or
appreciation in the value of a property which is not available for purchase.
In
the past, we have considered the possibility of entering into mergers or strategic combinations with other companies. We may undertake such considerations in the future. A principal
goal of any such transaction will be to increase our revenues and profits and diversify their sources.
Disposition Policies.
From time to time we consider the sale of properties or investments. Disposition decisions are made based on a
number of
factors including, those set forth above under Investment Policies, and the following:
-
•
-
the proposed sale price;
-
•
-
the strategic fit of the property or investment with the rest of our portfolio; and
-
•
-
the existence of alternative sources, uses or needs for capital.
Financing Policies.
We currently have a $750.0 million revolving credit facility (which is guaranteed by most of our subsidiaries)
that we use
for working capital and general business purposes and for acquisition funding on an interim basis until we refinance with equity or long term debt. This credit facility matures in August 2010, and we
have an option to extend the facility an additional year for a fee. The annual interest payable for amounts drawn under the facility is LIBOR plus 0.55%. At December 31, 2009,
$110.0 million was outstanding under our revolving credit facility. We continue to monitor banking market conditions and to date have not made a decision to either pursue a new or amended
revolving credit facility, or exercise our one year extension option.
Our
revolving credit facility agreement and our senior note indenture and its supplements contain financial covenants that, among other things, restrict our ability to incur indebtedness
and require us to maintain certain financial ratios and a minimum net worth. Our Board of Trustees may determine to replace our current credit facility or to seek additional capital through equity
offerings, debt financings, retention of cash flows in excess of distributions to shareholders or a combination of these methods. Some of our properties are encumbered by mortgages. To the extent that
our Board of Trustees decides to obtain additional debt financing: we may do so on an unsecured basis or a secured basis, subject to
limitations in existing financing or other contractual arrangements; we may seek to obtain other lines of credit or to issue securities senior to our common and/or preferred shares, including
preferred shares or debt securities which may be convertible into common shares or be accompanied by warrants to purchase common shares; or we may engage in transactions which involve a sale or other
conveyance of properties to affiliated or unaffiliated entities. We may finance acquisitions by an exchange of properties, by borrowing under our credit facility or by the issuance of additional
equity or debt securities. The proceeds from any of our financings may be used to pay distributions, to provide working capital, to refinance existing indebtedness or to finance acquisitions and
expansions of existing or new properties.
The
borrowing guidelines established by our Board of Trustees and covenants in various debt agreements prohibit us from maintaining a debt to total asset value, as defined, of greater
than 60%. Our declaration of trust also limits our borrowings. We may from time to time re-evaluate and modify our financing policies in light of then current market conditions, relative
availability and costs of debt
2
Table of Contents
and
equity capital, market values of properties, growth and acquisition opportunities and other factors, and we may increase or decrease our ratio of debt to total capitalization accordingly.
Manager.
Our day to day operations are conducted by Reit Management & Research LLC, or RMR. RMR originates and presents
investment and
divestment opportunities to our Board of Trustees and provides management and administrative services to us. RMR is a Delaware limited liability company beneficially owned by Barry M. Portnoy and Adam
D. Portnoy, our Managing Trustees. RMR has a principal place of business at 400 Centre Street, Newton Massachusetts, 02458, and its telephone number is (617) 332-3990. RMR also acts
as the manager to GOV, Hospitality Properties Trust, or HPT, and SNH, and provides management services to other public and private companies, including Five Star Quality Care, Inc., or Five
Star, and TravelCenters of America LLC, or TA. Barry M. Portnoy is the Chairman and a director of RMR and its other directors are Adam D. Portnoy, Gerard M. Martin, formerly one of our Managing
Trustees, and David J. Hegarty. The executive officers of RMR are: Adam D. Portnoy, President and Chief Executive Officer; Jennifer B. Clark, Executive Vice President and General Counsel; David J.
Hegarty, Executive Vice President and Secretary; Mark L. Kleifges, Executive Vice President; John G. Murray, Executive Vice President; Thomas M. O'Brien, Executive Vice President; John C. Popeo,
Executive Vice President, Treasurer and Chief Financial Officer; David M. Blackman, Senior Vice President; Ethan S. Bornstein, Senior Vice President; Richard A. Doyle, Senior Vice President; Paul V.
Hoagland, Senior Vice President; David M. Lepore, Senior Vice President; Bruce J. Mackey Jr., Senior Vice President; John A. Mannix, Senior Vice President; and Andrew J. Rebholz, Senior Vice
President. David M. Lepore, John A. Mannix and John C. Popeo are also our executive officers. Other executive officers of RMR also serve as officers of other companies to which RMR provides management
services.
Employees.
We have no employees. Services which would be provided by employees are provided by RMR and by our Managing Trustees and
officers. As of
February 23, 2010, RMR had approximately 600 full time employees, including a headquarters staff and regional offices and personnel located throughout the United States.
Competition.
Investing in and operating office and industrial real estate is a very competitive business. We compete against other
REITs, numerous
financial institutions, individuals and public and private companies who are actively engaged in this business. Also, we compete for tenants and investments based on a number of factors including
pricing, underwriting criteria and reputation. Our ability to successfully compete is also impacted by economic and population trends, availability of acceptable investment opportunities, our ability
to negotiate beneficial leasing and investment terms, availability and cost of capital and new and existing laws and regulations. We do not believe we have a dominant position in any of the geographic
markets in which we operate, but some of our competitors are dominant in selected markets. Many of our competitors have greater financial and other resources than we have. We believe the geographic
diversity of our investments, the experience and abilities of our management, the quality of our assets and the financial strength of many of our tenants affords us some competitive advantages which
have and will allow us to operate our business successfully despite the competitive nature of our business.
For
additional information on competition and the risks associated with our business, please see "Item 1A. Risk Factors" of this Annual Report on Form 10-K.
Environmental and Climate Change Matters.
Under various laws, owners as well as tenants and operators of real estate may be required to
investigate
and clean up or remove hazardous substances present at or migrating from properties they own, lease or operate and may be held liable for property damage or personal injuries that result from
hazardous substances. These laws also expose us to the possibility that we may become liable to reimburse governments for damages and costs they incur in connection with hazardous substances. We
estimate the cost to remove hazardous substances at some of our properties based in part on environmental surveys of the properties we own prior to their purchase
3
Table of Contents
and
we considered those costs when determining an acceptable purchase price. Estimated liabilities related to hazardous substances at properties we own are reflected in our consolidated balance sheets
and included in the cost of the real estate acquired. Some of our industrial lands in Oahu, HI have been historically used for environmentally dangerous purposes; and we may have to engage in
potentially expensive environmental clean up at these properties in the future, especially if we change the use of these properties. Certain of our buildings contain asbestos. We believe any asbestos
in our buildings is contained in accordance with current regulations, and we have no current plans to remove it. If we remove the asbestos or renovate or demolish these properties, certain
environmental regulations govern the manner in which the asbestos must be handled and removed. We do not believe that there are environmental conditions at any of our properties that have had or will
have a material
adverse effect on us. However, no assurances can be given that conditions are not present at our properties or that costs we may be required to incur in the future to remediate contamination will not
have a material adverse effect on our business or financial condition.
The
current political debate about climate change has resulted in various treaties, laws and regulations which are intended to limit carbon emissions. We believe these laws being enacted
or proposed may cause energy costs at our properties to increase, but we do not expect the direct impact of these increases to be material to our results of operations because the increased costs
either would be the responsibility of our tenants directly or in large part may be passed through by us to our tenants as additional lease payments. Although we do not believe it is likely in the
foreseeable future, laws enacted to mitigate climate change may make some of our buildings obsolete or cause us to make material investments in our properties which could materially and adversely
affect our financial condition.
Internet Website.
Our internet website address is www.hrpreit.com. Copies of our governance guidelines, or Governance Guidelines, code
of business
conduct and ethics, or Code of Conduct, and the charters of our audit, compensation and nominating and governance committees are posted on our website and may be obtained free of charge by writing to
our Secretary, HRPT Properties Trust, 400 Centre Street, Newton, Massachusetts, 02458. We make available, free of charge, on our website, our Annual Reports on Form 10-K, our
Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, or the Exchange Act, as soon as reasonably practicable after these forms are filed with, or furnished to, the Securities and Exchange Commission, or
SEC. Any shareholder or other interested party who desires to communicate with our Independent Trustees, individually or as a group, may do so by filling out a report on our website. Our Board of
Trustees also provides a process for security holders to send communications to the entire Board of Trustees. Information about the process for sending communications to our Board of Trustees can be
found on our website. Our website address is included several times in this Annual Report on Form 10-K as a textual reference only and none of the information on our website is
incorporated by reference into this Annual Report on Form 10-K.
4
Table of Contents
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of federal income tax considerations is based on existing law and is limited to investors who own our shares as
investment assets rather than as inventory or as property used in a trade or business. The summary does not discuss all of the particular tax consequences that might be relevant to you if you are
subject to special rules under federal income tax law, for example if you are:
-
•
-
a bank, life insurance company, regulated investment company, or other financial institution;
-
•
-
a broker, dealer or trader in securities or foreign currency;
-
•
-
a person who has a functional currency other than the U.S. dollar;
-
•
-
a person who acquires our shares in connection with employment or other performance of services;
-
•
-
a person subject to alternative minimum tax;
-
•
-
a person who owns our shares as part of a straddle, hedging transaction, constructive sale transaction, constructive
ownership transaction, or conversion transaction; or
-
•
-
except as specifically described in the following summary, a tax-exempt entity or a foreign person.
The
Internal Revenue Code of 1986, as amended, or the IRC, sections that govern federal income tax qualification and treatment of a REIT and its shareholders are complex. This
presentation is a summary of applicable IRC provisions, related rules and regulations and administrative and judicial interpretations, all of which are subject to change, possibly with retroactive
effect. Future legislative, judicial, or administrative actions or decisions could also affect the accuracy of statements made in this summary. We have not received a ruling from the Internal Revenue
Service, or the IRS, with respect to any matter described in this summary, and we cannot assure you that the IRS or a court will agree with the statements made in this summary. The IRS or a court
could, for example, take a different position from that described in this summary with respect to our acquisitions, operations, restructurings or other matters, which, if successful, could result in
significant tax liabilities for applicable parties. In addition, this summary is not exhaustive of all possible tax consequences, and does not discuss any estate, gift, state, local, or foreign tax
consequences. For all these reasons, we urge you and any prospective acquiror of our shares to consult with a tax advisor about the federal income tax and other tax consequences of the acquisition,
ownership and disposition of our shares. Our intentions and beliefs described in this summary are based upon our understanding of applicable laws and regulations that are in effect as of the date of
this Annual Report on Form 10-K. If new laws or regulations are enacted which impact us directly or indirectly, we may change our intentions or beliefs.
Your
federal income tax consequences may differ depending on whether or not you are a "U.S. shareholder." For purposes of this summary, a "U.S. shareholder" for federal income tax
purposes is:
-
•
-
a citizen or resident of the United States, including an alien individual who is a lawful permanent resident of the United
States or meets the substantial presence residency test under the federal income tax laws;
-
•
-
an entity treated as a corporation for federal income tax purposes that is created or organized in or under the laws of
the United States, any state thereof or the District of Columbia;
-
•
-
an estate the income of which is subject to federal income taxation regardless of its source;
or
-
•
-
a trust if a court within the United States is able to exercise primary supervision over the administration of the trust
and one or more United States persons have the authority to control all substantial decisions of the trust, or an electing trust in existence on August 20, 1996, to the extent provided in
Treasury regulations;
5
Table of Contents
whose
status as a U.S. shareholder is not overridden by an applicable tax treaty. Conversely, a "non-U.S. shareholder" is a beneficial owner of our shares who is not a U.S. shareholder. If
a partnership (including any entity treated as a partnership for federal income tax purposes) is a beneficial owner of our shares, the tax treatment of a partner in the partnership generally will
depend upon the status of the partner and the activities of the partnership. A beneficial owner that is a partnership and partners in such a partnership should consult their tax advisors about the
federal income tax consequences of the acquisition, ownership and disposition of our shares.
Taxation as a REIT
We have elected to be taxed as a REIT under Sections 856 through 860 of the IRC, commencing with our taxable year ending
December 31, 1987. Our REIT election, assuming continuing compliance with the then applicable qualification tests, continues in effect for subsequent taxable years. Although no assurance can be
given, we believe that we have been organized and have operated, and will continue to be organized and to operate, in a manner that qualified and will continue to qualify us to be taxed under the IRC
as a REIT.
As
a REIT, we generally are not subject to federal income tax on our net income distributed as dividends to our shareholders. Distributions to our shareholders generally are included in
their income as dividends to the extent of our current or accumulated earnings and profits. Our dividends are not generally entitled to the favorable 15% rate on qualified dividend income (scheduled
to increase to ordinary income rates for taxable years beginning after December 31, 2010), but a portion of our dividends may be treated as capital gain dividends, all as explained below. No
portion of any of our dividends is eligible for the dividends received deduction for corporate shareholders. Distributions in excess of current or accumulated earnings and profits generally are
treated for federal income tax purposes as return of capital to the extent of a recipient shareholder's basis in our shares, and will reduce this basis. Our current or accumulated earnings and profits
are generally allocated first to distributions made on our preferred shares, and thereafter to distributions made on our common shares. For all these purposes, our distributions include both cash
distributions and any in kind distributions of property that we might make.
The
conversion formula of our series D cumulative convertible preferred shares may be adjusted under a number of circumstances; adjustments may include changes in the type or
amount of consideration a shareholder receives upon conversion. Section 305 of the IRC treats some of these adjustments as constructive distributions, in which case they would be taxable in a
similar manner to actual distributions. In general, a shareholder that holds our series D cumulative convertible preferred shares would be deemed to receive a constructive distribution if the
conversion price is adjusted for a taxable distribution to the holders of common shares. Such a shareholder's adjusted tax basis in series D cumulative convertible preferred shares would be
increased by constructive distributions that are taxable as dividends or gain, and would be unaffected by constructive distributions that are nontaxable returns of capital. Conversely, a failure to
appropriately adjust the conversion price of the series D cumulative convertible preferred shares could result in a constructive distribution to shareholders that hold our common shares, which
would be taxable to them in a similar manner as actual distributions. A shareholder may also receive a constructive distribution if a conversion of its series D cumulative convertible preferred
shares is accompanied by a change in the conversion formula.
If
a shareholder actually or constructively owns none or a small percentage of our common shares, and such shareholder surrenders its preferred shares to us to be repurchased for cash
only, then the repurchase of the preferred shares is likely to qualify for sale or exchange treatment because the repurchase would not be "essentially equivalent to a dividend" as defined by the IRC.
More specifically, a cash repurchase of preferred shares will be treated under Section 302 of the IRC as a distribution, and hence taxable as a dividend to the extent of our allocable current
or accumulated earnings and profits, as discussed above, unless the repurchase satisfies one of the tests set forth in
6
Table of Contents
Section 302(b)
of the IRC and is therefore treated as a sale or exchange of the repurchased shares. The repurchase will be treated as a sale or exchange if it (1) is "substantially
disproportionate" with respect to the surrendering shareholder's ownership in us, (2) results in a "complete termination" of the surrendering shareholder's common and preferred share interest
in us, or (3) is "not essentially equivalent to a dividend" with respect to the surrendering shareholder, all within the meaning of Section 302(b) of the IRC. In determining whether any
of these tests have been met, a shareholder must generally take into account our common and preferred shares considered to be owned by such shareholder by reason of constructive ownership rules set
forth in the IRC, as well as our common and preferred shares actually owned by such shareholder. In addition, if a repurchase is treated as a distribution under the preceding tests, then a
shareholder's tax basis in the repurchased preferred shares generally will be transferred to the shareholder's remaining shares of our common or preferred shares, if any, and if such shareholder owns
no other shares of our common or preferred shares, such basis generally may be transferred to a related person or may be lost entirely. Because the determination as to whether a shareholder will
satisfy any of the tests of Section 302(b) of the IRC depends upon the facts and circumstances at the time that the preferred shares are repurchased, we encourage you to consult your own tax
advisor to determine your particular tax treatment.
Our
counsel, Sullivan & Worcester LLP, has opined that we have been organized and have qualified as a REIT under the IRC for our 1987 through 2009 taxable years, and that
our current investments and plan of operation enable us to continue to meet the requirements for qualification and taxation as a REIT under the IRC. Our continued qualification and taxation as a REIT
will depend upon our compliance with various qualification tests imposed under the IRC and summarized below. While we believe that we will satisfy these tests, our counsel does not review compliance
with these tests on a continuing basis. If we fail to qualify as a REIT, we will be subject to federal income taxation as if we were a C corporation and our shareholders will be taxed like
shareholders of C corporations. In this event, we could be subject to significant tax liabilities, and the amount of cash available for distribution to our shareholders may be reduced or eliminated.
If
we qualify as a REIT and meet the tests described below, we generally will not pay federal income tax on amounts we distribute to our shareholders. However, even if we qualify as a
REIT, we may be subject to federal tax in the following circumstances:
-
•
-
We will be taxed at regular corporate rates on any undistributed "real estate investment trust taxable income," including
our undistributed net capital gains.
-
•
-
If our alternative minimum taxable income exceeds our taxable income, we may be subject to the corporate alternative
minimum tax on our items of tax preference.
-
•
-
If we have net income from the disposition of "foreclosure property" that is held primarily for sale to customers in the
ordinary course of business or from other nonqualifying income from foreclosure property, we will be subject to tax on this income at the highest regular corporate rate, currently 35%.
-
•
-
If we have net income from prohibited transactions, including dispositions of inventory or property held primarily for
sale to customers in the ordinary course of business other than foreclosure property, we will be subject to tax on this income at a 100% rate.
-
•
-
If we fail to satisfy the 75% gross income test or the 95% gross income test discussed below, but nonetheless maintain our
qualification as a REIT, we will be subject to tax at a 100% rate on the greater of the amount by which we fail the 75% or the 95% test, with adjustments, multiplied by a fraction intended to reflect
our profitability.
-
•
-
If we fail to distribute for any calendar year at least the sum of 85% of our REIT ordinary income for that year, 95% of
our REIT capital gain net income for that year, and any
7
Table of Contents
If
we fail to qualify or elect not to qualify as a REIT, we will be subject to federal income tax in the same manner as a C corporation. Distributions to our shareholders if we do not
qualify as a REIT will not be deductible by us nor will distributions be required under the IRC. In that event, distributions to our shareholders will generally be taxable as ordinary dividends
potentially eligible for the 15% income tax rate (scheduled to increase to ordinary income rates for taxable years beginning after December 31, 2010) discussed below in "Taxation of U.S.
Shareholders" and, subject to limitations in the IRC, will be eligible for the dividends received deduction for corporate shareholders. Also, we will generally be disqualified from qualification as a
REIT for the four taxable years following disqualification. If we do not qualify as a REIT for even one year, this could result in reduction or elimination of distributions to
our shareholders, or in our incurring substantial indebtedness or liquidating substantial investments in order to pay the resulting corporate-level taxes. The IRC provides certain relief provisions
under which we might avoid automatically ceasing to be a REIT for failure to meet certain REIT requirements, all as discussed in more detail below.
8
Table of Contents
REIT Qualification Requirements
General Requirements.
Section 856(a) of the IRC defines a REIT as a corporation, trust or association:
-
(1)
-
that
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)
-
that
would be taxable, but for Sections 856 through 859 of the IRC, as a C corporation;
-
(4)
-
that
is not a financial institution or an insurance company subject to special provisions of the IRC;
-
(5)
-
the
beneficial ownership of which is held by 100 or more persons;
-
(6)
-
that
is not "closely held" as defined under the personal holding company stock ownership test, as described below; and
-
(7)
-
that
meets other tests regarding income, assets and distributions, all as described below.
Section 856(b)
of the IRC provides that conditions (1) through (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 pro rata part of a taxable year of less than 12 months. Section 856(h)(2) of the IRC provides that neither
condition (5) nor (6) need be met for our first taxable year as a REIT. We believe that we have met conditions (1) through (7) during each of the requisite periods ending
on or before our most recently completed taxable year, and that we can continue to meet these conditions in future taxable years. There can, however, be no assurance in this regard.
By
reason of condition (6), we will fail to qualify as a REIT for a taxable year if at any time during the last half of a year more than 50% in value of our outstanding shares is
owned directly or indirectly by five or fewer individuals. To help comply with condition (6), our declaration of trust and bylaws restrict transfers of our shares. In addition, if we comply
with applicable Treasury regulations to ascertain the ownership of our shares and do not know, or by exercising reasonable diligence would not have known, that we failed condition (6), then we
will be treated as having met condition (6). However, our failure to comply with these regulations for ascertaining ownership may result in a penalty of $25,000, or $50,000 for intentional
violations. Accordingly, we have complied and will continue to comply with these regulations, including requesting annually from record holders of significant percentages of our shares information
regarding the ownership of our shares. Under our declaration of trust and bylaws, our shareholders are required to respond to these requests for information.
For
purposes of condition (6), the term "individuals" is defined in the IRC to include natural persons, supplemental unemployment compensation benefit plans, private foundations
and portions of a trust permanently set aside or used exclusively for charitable purposes, but not other entities or qualified pension plans or profit-sharing trusts. As a result, REIT shares owned by
an entity that is not an "individual" are considered to be owned by the direct and indirect owners of the entity that are individuals (as so defined), rather than to be owned by the entity itself.
Similarly, REIT shares held by a qualified pension plan or profit-sharing trust are treated as held directly by the beneficiaries in proportion to their actuarial interests in such plan or trust.
Consequently, five or fewer such trusts could own more than 50% of the interests in an entity without jeopardizing that entity's federal income tax qualification as a REIT. However, as discussed
below, if a REIT is a "pension-held REIT," each qualified pension plan or profit-sharing pension trust owning more than 10% of the REIT's shares by value generally may be taxed on a
portion of the dividends it receives from the REIT.
The
IRC provides that we will not automatically fail to be a REIT if we do not meet conditions (1) through (6), provided we can establish reasonable cause for any such failure.
Each such
9
Table of Contents
excused
failure will result in the imposition of a $50,000 penalty instead of REIT disqualification. It is impossible to state whether in all circumstances we would be entitled to the benefit of this
relief provision. This relief provision applies to any failure of the applicable conditions, even if the failure first occurred in a prior taxable year.
Our Wholly-Owned Subsidiaries and Our Investments through Partnerships.
Except in respect of taxable REIT subsidiaries as discussed
below,
Section 856(i) of the IRC provides that any corporation, 100% of whose stock is held by a REIT, is a qualified REIT subsidiary and shall not be treated as a separate corporation. The assets,
liabilities and items of income, deduction and credit of a qualified REIT subsidiary are treated as the REIT's. We believe that each of our direct and indirect wholly-owned subsidiaries, other than
the taxable REIT subsidiaries discussed below, will be either a qualified REIT subsidiary within the meaning of Section 856(i) of the IRC or a noncorporate entity that for federal income tax
purposes is not treated as separate from its owner under regulations issued under Section 7701 of the IRC. Thus, except for the taxable REIT subsidiaries discussed below, in applying all the
federal income tax REIT qualification requirements described in this summary, all assets, liabilities and items of income, deduction and credit of our direct and indirect wholly-owned subsidiaries are
treated as ours.
We
have invested and may invest in real estate through one or more limited or general partnerships or limited liability companies that are treated as partnerships for federal income tax
purposes. In the case of a REIT that is a partner in a partnership, regulations under the IRC provide that, for purposes of the REIT qualification requirements regarding income and assets discussed
below, the REIT is deemed to own its proportionate share of the assets of the partnership corresponding to the REIT's proportionate capital interest in the partnership and is deemed to be entitled to
the income of the partnership attributable to this proportionate share. In addition, for these purposes, the character of the assets and gross income of the partnership generally retain the same
character in the hands of the REIT. Accordingly, our proportionate share of the assets, liabilities, and items of income of each partnership in which we are a partner is treated as ours for purposes
of the income tests and asset tests discussed below. In contrast, for purposes of the distribution requirement discussed below, we must take into account as a partner our share of the partnership's
income as determined under the general federal income tax rules governing partners and partnerships under Sections 701 through 777 of the IRC.
Taxable REIT Subsidiaries.
We are permitted to own any or all of the securities of a "taxable REIT subsidiary" as defined in
Section 856(l) of
the IRC, provided that no more than 25% of our assets, at
the close of each quarter, is comprised of our investments in the stock or securities of our taxable REIT subsidiaries. (For our 2001 through 2008 taxable years, no more than 20% of our assets, at the
close of each quarter, was permitted to be comprised of our investments in the stock or securities of our taxable REIT subsidiaries; before the introduction of taxable REIT subsidiaries in 2001, our
ability to own separately taxable corporate subsidiaries was more limited.) Among other requirements, a taxable REIT subsidiary must:
-
(1)
-
be
a non-REIT corporation for federal income tax purposes in which we directly or indirectly own shares;
-
(2)
-
join
with us in making a taxable REIT subsidiary election;
-
(3)
-
not
directly or indirectly operate or manage a lodging facility or a health care facility; and
-
(4)
-
not
directly or indirectly provide to any person, under a franchise, license, or otherwise, rights to any brand name under which any lodging facility or
health care facility is operated, except that in limited circumstances a subfranchise, sublicense or similar right can be granted to an independent contractor to operate or manage a lodging facility
or, after our 2008 taxable year, a health care facility.
10
Table of Contents
In
addition, a corporation other than a REIT in which a taxable REIT subsidiary directly or indirectly owns more than 35% of the voting power or value will automatically be treated as a
taxable REIT subsidiary. Subject to the discussion below, we believe that we and each of our taxable REIT subsidiaries have complied with, and will continue to comply with, the requirements for
taxable REIT subsidiary status at all times during which we intend for the subsidiary's taxable REIT subsidiary election to be in effect, and we believe that the same will be true for any taxable REIT
subsidiary that we later form or acquire.
Our
ownership of stock and securities in taxable REIT subsidiaries is exempt from the 10% and 5% REIT asset tests discussed below. Also, as discussed below, taxable REIT subsidiaries can
perform services for our tenants without disqualifying the rents we receive from those tenants under the 75% or 95% gross income tests discussed below. Moreover, because taxable REIT subsidiaries are
taxed as C corporations that are separate from us, their assets, liabilities and items of income, deduction and credit generally are not imputed to us for purposes of the REIT qualification
requirements described in this summary. Therefore, taxable REIT subsidiaries can generally undertake third-party management and development activities and activities not related to real estate.
Restrictions
are imposed on taxable REIT subsidiaries to ensure that they will be subject to an appropriate level of federal income taxation. For example, a taxable REIT subsidiary may
not deduct interest paid in any year to an affiliated REIT to the extent that the interest payments exceed, generally, 50% of the taxable REIT subsidiary's adjusted taxable income for that year.
However, the taxable REIT subsidiary may carry forward the disallowed interest expense to a succeeding year, and deduct the interest in that later year subject to that year's 50% adjusted taxable
income limitation. In addition, if a taxable REIT subsidiary pays interest, rent, or other amounts to its affiliated REIT in an amount that exceeds what an unrelated third party would have paid in an
arm's length transaction, then the REIT generally will be subject to an excise tax equal to 100% of the excessive portion of the payment. Finally, if in comparison to an arm's length transaction, a
tenant has overpaid rent to the REIT in exchange for underpaying the taxable REIT subsidiary for services rendered, then the REIT may be subject to an excise tax equal to 100% of the overpayment.
There can be no assurance that arrangements involving our taxable REIT subsidiaries will not result in the imposition of one or more of these deduction limitations or excise taxes, but we do not
believe that we are or will be subject to these impositions.
Income Tests.
There are two gross income requirements for qualification as a REIT under the IRC:
-
•
-
At least 75% of our gross income (excluding: (a) gross income from sales or other dispositions of property held
primarily for sale; (b) any income arising from "clearly identified" hedging transactions that we enter into after July 30, 2008 to manage interest rate or price fluctuations with
respect to borrowings we incur to acquire or carry real estate assets; (c) any income arising from "clearly identified" hedging transactions that we enter into after July 30, 2008
primarily to manage risk of currency fluctuations relating to any item that qualifies under the 75% or 95% gross income tests; (d) real estate foreign exchange gain (as defined in
Section 856(n)(2) of the IRC) that we recognize after July 30, 2008; and (e) income from the repurchase or discharge of indebtedness) must be derived from investments relating to
real property, including "rents from real property" as defined under Section 856 of the IRC, interest and gain from mortgages on real property, income and gain from foreclosure property, or
dividends and gain from shares in other REITs. When we receive new capital in exchange for our shares or in a public offering of five-year or longer debt instruments, income attributable
to the temporary investment of this
11
Table of Contents
For
purposes of the 75% and 95% gross income tests outlined above, income derived from a "shared appreciation provision" in a mortgage loan is generally treated as gain recognized on the sale of the
property to which it relates. Although we will use our best efforts to ensure that the income generated by our investments will be of a type that satisfies both the 75% and 95% gross income tests,
there can be no assurance in this regard.
In
order to qualify as "rents from real property" under Section 856 of the IRC, several requirements must be met:
-
•
-
The amount of rent received generally must not be based on the income or profits of any person, but may be based on
receipts or sales.
-
•
-
Rents do not qualify if the REIT owns 10% or more by vote or value of the tenant, whether directly or after application of
attribution rules. While we intend not to lease property to any party if rents from that property would not qualify as rents from real property, application of the 10% ownership rule is dependent upon
complex attribution rules and circumstances that may be beyond our control. For example, an unaffiliated third party's ownership directly or by attribution of 10% or more by value of our shares, as
well as an ownership position in the stock of one of our tenants which, when added to our own ownership position in that tenant, totals 10% or more by vote or value of the stock of that tenant, would
result in that tenant's rents not qualifying as rents from real property. Our declaration of trust and bylaws disallow transfers or purported acquisitions, directly or by attribution, of our shares to
the extent necessary to maintain our REIT status under the IRC. Similarly, for as long as we own more than 9.8% of GOV's outstanding shares, the transaction agreement provides that we and GOV will
limit ownership in any of our tenants to no more than 4.9% by each party, so that our combined ownership will remain under 10%, and also that we and GOV agree to take reasonable actions to facilitate
the REIT status under the IRC of the other. Nevertheless, there can be no assurance that these provisions in our declaration of trust and bylaws and in the transaction agreement will be effective to
prevent our REIT status from being jeopardized under the 10% affiliated tenant rule. Furthermore, there can be no assurance that we will be able to monitor and enforce these restrictions, nor will our
shareholders necessarily be aware of ownership of shares attributed to them under the IRC's attribution rules.
-
•
-
There is a limited exception to the above prohibition on earning "rents from real property" from a 10% affiliated tenant,
if the tenant is a taxable REIT subsidiary. If at least 90% of the leased space of a property is leased to tenants other than taxable REIT subsidiaries and 10% affiliated
12
Table of Contents
tenants,
and if the taxable REIT subsidiary's rent for space at that property is substantially comparable to the rents paid by nonaffiliated tenants for comparable space at the property, then
otherwise qualifying rents paid by the taxable REIT subsidiary to the REIT will not be disqualified on account of the rule prohibiting 10% affiliated tenants.
-
•
-
In order for rents to qualify, we generally must not manage the property or furnish or render services to the tenants of
the property, except through an independent contractor from whom we derive no income or through one of our taxable REIT subsidiaries. There is an exception to this rule permitting a REIT to perform
customary tenant services of the sort that a tax-exempt organization could perform without being considered in receipt of "unrelated business taxable income" as defined in
Section 512(b)(3) of the IRC. In addition, a de minimis amount of noncustomary services will not disqualify income as "rents from real property" so long as the value of the impermissible
services does not exceed 1% of the gross income from the property.
-
•
-
If rent attributable to personal property leased in connection with a lease of real property is 15% or less of the total
rent received under the lease, then the rent attributable to personal property will qualify as "rents from real property"; if this 15% threshold is exceeded, the rent attributable to personal property
will not so qualify. The portion of rental income treated as attributable to personal property is determined according to the ratio of the fair market value of the personal property to the total fair
market value of the real and personal property that is rented.
We
believe that all or substantially all our rents have qualified and will qualify as rents from real property for purposes of Section 856 of the IRC.
In
order to qualify as mortgage interest on real property for purposes of the 75% test, interest must derive from a mortgage loan secured by real property with a fair market value, at
the time the loan is made, at least equal to the amount of the loan. If the amount of the loan exceeds the fair market value of the real property, the interest will be treated as interest on a
mortgage loan in a ratio equal to the ratio of the fair market value of the real property to the total amount of the mortgage loan.
Absent
the "foreclosure property" rules of Section 856(e) of the IRC, a REIT's receipt of business operating income from a property would not qualify under the 75% and 95% gross
income tests. But as foreclosure property, gross income from such a business operation would so qualify. In the case of property leased by a REIT to a tenant, foreclosure property is defined under
applicable Treasury regulations to include generally the real property and incidental personal property that the REIT reduces to possession upon a default or imminent default under the lease by the
tenant, and as to which a foreclosure property election is made by attaching an appropriate statement to the REIT's federal income tax return.
Any
gain that a REIT recognizes on the sale of foreclosure property, plus any income it receives from foreclosure property that would not qualify under the 75% gross income test in the
absence of foreclosure property treatment, reduced by expenses directly connected with the production of those items of income, would be subject to income tax at the maximum corporate rate, currently
35%, under the foreclosure property income tax rules of Section 857(b)(4) of the IRC. Thus, if a REIT should lease
foreclosure property in exchange for rent that qualifies as "rents from real property" as described above, then that rental income is not subject to the foreclosure property income tax.
Other
than sales of foreclosure property, any gain we realize on the sale of property held as inventory or other property held primarily for sale to customers in the ordinary course of
business will be treated as income from a prohibited transaction that is subject to a penalty tax at a 100% rate. This prohibited transaction income also may adversely affect our ability to satisfy
the 75% and 95% gross income tests for federal income tax qualification as a REIT. We cannot provide assurances as to
13
Table of Contents
whether
or not the IRS might successfully assert that one or more of our dispositions is subject to the 100% penalty tax. However, we believe that dispositions of assets that we have made or that we
might make in the future will not be subject to the 100% penalty tax, because we intend to:
-
•
-
own our assets for investment with a view to long-term income production and capital appreciation;
-
•
-
engage in the business of developing, owning and managing our existing properties and acquiring, developing, owning and
managing new properties; and
-
•
-
make occasional dispositions of our assets consistent with our long-term investment objectives.
If
we fail to satisfy one or both of the 75% or the 95% gross income tests in any taxable year, we may nevertheless qualify as a REIT for that year if we satisfy the following
requirements:
-
•
-
our failure to meet the test is due to reasonable cause and not due to willful neglect, and
-
•
-
after we identify the failure, we file a schedule describing each item of our gross income included in the 75% or
95% gross income tests for that taxable year.
It
is impossible to state whether in all circumstances we would be entitled to the benefit of this relief provision for the 75% and 95% gross income tests. Even if this relief provision does apply, a
100% tax is imposed upon the greater of the amount by which we failed the 75% test or the 95% test, with adjustments, multiplied by a fraction intended to reflect our profitability. This relief
provision applies to any failure of the applicable income tests, even if the failure first occurred in a prior taxable year.
Asset Tests.
At the close of each quarter of each taxable year, we must also satisfy the following asset percentage tests in order to
qualify as a
REIT for federal income tax purposes:
-
•
-
At least 75% of our total assets must consist of real estate assets, cash and cash items, shares in other REITs,
government securities, and temporary investments of new capital (that is, stock or debt instruments purchased with proceeds of a stock offering or a public offering of our debt with a term of at least
five years, but only for the one-year period commencing with our receipt of the offering proceeds).
-
•
-
Not more than 25% of our total assets may be represented by securities other than those securities that count favorably
toward the preceding 75% asset test.
-
•
-
Of the investments included in the preceding 25% asset class, the value of any one non-REIT issuer's
securities that we own may not exceed 5% of the value of our total assets. In addition, we may not own more than 10% of the vote or value of any one non-REIT issuer's outstanding
securities, unless that issuer is our taxable REIT subsidiary or the securities are "straight debt" securities or otherwise excepted as discussed below.
-
•
-
Our stock and securities in a taxable REIT subsidiary are exempted from the preceding 10% and 5% asset tests. However, no
more than 25% (for our 2008 taxable year and earlier, 20%) of our total assets may be represented by stock or securities of taxable REIT subsidiaries.
When
a failure to satisfy the above asset tests results from an acquisition of securities or other property during a quarter, the failure can be cured by disposition of sufficient
nonqualifying assets within 30 days after the close of that quarter.
In
addition, if we fail the 5% value test or the 10% vote or value tests at the close of any quarter and do not cure such failure within 30 days after the close of that quarter,
that failure will nevertheless be excused if (a) the failure is de minimis and (b) within 6 months after the last day of the quarter in which we identify the failure, we either
dispose of the assets causing the failure or otherwise satisfy the 5% value and 10% vote and value asset tests. For purposes of this relief provision, the failure will be "de minimis" if the value of
the assets causing the failure does not exceed the lesser of (a) 1% of the
14
Table of Contents
total
value of our assets at the end of the relevant quarter or (b) $10,000,000. If our failure is not de minimis, or if any of the other REIT asset tests have been violated, we may
nevertheless qualify as a REIT if (a) we provide the IRS with a description of each asset causing the failure, (b) the failure was due to reasonable cause and not willful neglect,
(c) we pay a tax equal to the greater of (i) $50,000 or (ii) the highest rate of corporate tax imposed (currently 35%) on the net income generated by the assets causing the
failure during the period of the failure, and (d) within 6 months after the last day of the quarter in which we identify the failure, we either dispose of the assets causing the failure
or otherwise satisfy all of the REIT asset tests. These relief provisions apply to any failure of the applicable asset tests, even if the failure first occurred in a prior taxable year.
The
IRC also provides an excepted securities safe harbor to the 10% value test that includes among other items (a) "straight debt" securities, (b) certain rental agreements
in which payment is to be made in subsequent years, (c) any obligation to pay rents from real property, (d) securities issued by governmental entities that are not dependent in whole or
in part on the profits of or payments from a nongovernmental entity, and (e) any security issued by another REIT.
We
have maintained and will continue to maintain records of the value of our assets to document our compliance with the above asset tests, and intend to take actions as may be required
to cure any failure to satisfy the tests within 30 days after the close of any quarter.
Our Former Investment in SNH.
For several years, we owned a significant minority, in excess of 10%, of SNH shares, and we believe that
SNH during
these years qualified as a REIT under the IRC. We sold all our SNH shares in 2006 and no longer own any material stake in that company. For any of our taxable years in which SNH qualified as a REIT,
our investment in SNH counted favorably toward the REIT asset tests and our gains and dividends from SNH shares counted as qualifying income under both REIT gross income tests. However, because we did
not and could not control SNH's compliance with the federal income tax requirements for REIT qualification, we joined with SNH in filing a
protective taxable REIT subsidiary election under Section 856(l) of the IRC, effective January 1, 2001, and we reaffirmed this protective election every January 1 since then
through January 1, 2006. Pursuant to this protective taxable REIT subsidiary election, we believe that if SNH was not a REIT, it would instead be considered one of our taxable REIT
subsidiaries. As one of our taxable REIT subsidiaries, we believe that SNH's failure to qualify as a REIT would not have jeopardized our own qualification as a REIT even though we owned more than 10%
of it.
Annual Distribution Requirements.
In order to qualify for taxation as a REIT under the IRC, we are required to make annual
distributions other than
capital gain dividends to our shareholders in an amount at least equal to the excess of:
-
(A)
-
the
sum of 90% of our "real estate investment trust taxable income," as defined in Section 857 of the IRC, computed by excluding any net capital gain
and before taking into account any dividends paid deduction for which we are eligible, and 90% of our net income after tax, if any, from property received in foreclosure, over
-
(B)
-
the
sum of our qualifying noncash income,
e.g
., imputed rental income or income from transactions
inadvertently failing to qualify as like-kind exchanges.
The
distributions must be paid in the taxable year to which they relate, or in the following taxable year if declared before we timely file our tax return for the earlier taxable year and if paid on
or before the first regular distribution payment after that declaration. If a dividend is declared in October, November, or December to shareholders of record during one of those months and is paid
during the following January, then for federal income tax purposes the dividend will be treated as having been both paid and received on December 31 of the prior taxable year. A distribution
which is not pro rata within a class of our beneficial interests entitled to a distribution, or which is not consistent with the rights to distributions among our classes of beneficial interests, is a
preferential distribution that is not
15
Table of Contents
taken
into consideration for purposes of the distribution requirements, and accordingly the payment of a preferential distribution could affect our ability to meet the distribution requirements.
Taking into account our distribution policies, including the dividend reinvestment plan we have adopted, we do not believe that we have made or will make any preferential distributions. The
distribution requirements may be waived by the IRS if a REIT establishes that it failed to meet them by reason of distributions previously made to meet the requirements of the 4% excise tax discussed
below. To the extent that we do not distribute all of our net capital gain and all of our real estate investment trust taxable income, as adjusted, we will be subject to tax on undistributed amounts.
In
addition, we will be subject to a 4% nondeductible excise tax to the extent we fail within a calendar year to make required distributions to our shareholders of 85% of our ordinary
income and 95% of our capital gain net income plus the excess, if any, of the "grossed up required distribution" for the preceding calendar year over the amount treated as distributed for that
preceding calendar year. For this purpose, the term "grossed up required distribution" for any calendar year is the sum of our taxable income for the calendar year without regard to the deduction for
dividends paid and all amounts from earlier years that are not treated as having been distributed under the provision. We will be treated as having sufficient earnings and profits to treat as a
dividend any distribution by us up to the amount required to be distributed in order to avoid imposition of the 4% excise tax.
Pursuant
to Revenue Procedure 2010-12 and for taxable years ending on or before December 31, 2011, the IRS has indicated that it will respect certain distributions
from a publicly traded REIT paid partly in cash and partly in stock as distributions that count toward the REIT's annual distribution requirements. Under Revenue Procedure 2010-12, a
publicly traded REIT may pay a distribution partly in shares if each shareholder is permitted to elect to receive his or her distribution in either shares or cash, provided that: (a) the amount
of cash that is set aside to be distributed, or cash limitation, is not less than 10% of the total distribution; and (b) if the aggregate amount of cash that shareholders elect to receive
exceeds the cash limitation, the full amount of the allocated cash will be distributed pro rata to each shareholder electing to receive cash, such amount being at least 10% of each such shareholder's
total distribution. Accordingly, if we elect to pay a distribution to our common shareholders partly in cash and partly in shares with a cash election feature in accordance with this Revenue Procedure
2010-12, then the total distribution will include both the stock component and the cash component, and your tax liability with respect to that distribution may exceed the amount of cash
that you receive.
If
we do not have enough cash or other liquid assets to meet the 90% distribution requirements, we may find it necessary and desirable to arrange for new debt or equity financing to
provide funds for required distributions in order to maintain our REIT status. We can provide no assurance that financing would be available for these purposes on favorable terms.
We
may be able to rectify a failure to pay sufficient dividends for any year by paying "deficiency dividends" to shareholders in a later year. These deficiency dividends may be included
in our deduction for dividends paid for the earlier year, but an interest charge would be imposed upon us for the delay in distribution.
In
addition to the other distribution requirements above, to preserve our status as a REIT we are required to timely distribute C corporation earnings and profits that we inherit from
acquired corporations.
Under
Section 108(i) of the IRC, we may elect to defer recognition of income from the 2009 or 2010 discharge of indebtedness arising from our repurchase and retirement of our
outstanding debt. To the extent we make such an election, we will recognize the deferred income ratably over a
five-year period commencing in 2014, subject to possible acceleration upon the occurrence of certain events. As a REIT, the amount and timing of our receipt of earnings and profits
generally will follow the amount and timing of our recognition of taxable income pursuant to the election. Once made, an election under Section 108(i) of the IRC is irrevocable.
16
Table of Contents
Our Relationship with GOV
Our formation of GOV, followed by GOV's issuance of its shares to the public in its initial public offering, or IPO, impacted our own
REIT qualification and taxation under the IRC in the following manner.
Formation of GOV.
Prior to its IPO, GOV and its wholly-owned subsidiaries were wholly owned by us. During this period, GOV and its
subsidiaries were
disregarded as entities separate from us for federal income tax purposes, either under the regulations issued under Section 7701 of the IRC or under the qualified REIT subsidiary rules of
Section 856(i), all as described above. Accordingly, all assets, liabilities and items of income, deduction and credit of GOV and its subsidiaries during this period, including in particular
the outstanding indebtedness on the GOV credit facility, were treated as ours. Under the transaction agreement we entered with GOV at the time of GOV's initial public offering, or the transaction
agreement, the federal income tax liabilities and federal income tax filings for GOV and its subsidiaries for this period are our responsibility.
Our Taxation upon GOV's IPO.
When GOV first issued shares to persons other than us (the "Effective Time"), GOV ceased to be wholly owned
by us. As a
consequence, GOV and its subsidiaries ceased to be our disregarded entities for federal income tax purposes. Instead, at that time, GOV became regarded as a separate corporation that is expected to
satisfy the requirements for qualification and taxation as a REIT under the IRC, and its subsidiaries ceased to be treated as part of us and became disregarded entities treated as part of the newly
separate GOV. In particular, there was a "Deemed Exchange" for federal income tax purposes at the time when GOV ceased to be wholly owned by us, and this Deemed Exchange encompassed the following
features:
-
•
-
The cash, assets, and liabilities distributed from GOV to us prior to its issuance of shares in the IPO were treated as
cash, assets, and liabilities retained by us and not included in the Deemed Exchange.
-
•
-
The assets retained by GOV were treated as though contributed by us to GOV in the Deemed Exchange.
-
•
-
The liabilities retained by GOV (other than the approximately $6 million reimbursement obligation to us), including
in particular the outstanding balance on the GOV credit facility, were treated as liabilities of ours that were assumed by GOV in the Deemed Exchange.
-
•
-
We were treated as receiving, as consideration in the Deemed Exchange, (1) the GOV shares that we owned immediately
after the Effective Time, (2) the liabilities retained by GOV and treated as assumed by it from us in the Deemed Exchange, plus (3) GOV's obligation to reimburse us for approximately
$6 million that we advanced to GOV.
For
the Deemed Exchange to have been nontaxable to us for federal income tax purposes (except up to the extent of the approximately $6 million reimbursement obligation to us from GOV), each of
the three issues discussed below must be concluded upon favorably. Based on representations from us and from GOV, our tax counsel, Sullivan & Worcester LLP, opined that the Deemed
Exchange should be governed by Sections 351(a) and 357(a) of the IRC, except for up to approximately $6 million of gain recognized by us under Section 351(b) of the IRC in respect
of GOV's obligation to reimburse us for certain amounts that we advanced to GOV, all for the reasons discussed below.
First,
Section 351(e) of the IRC must not have applied to the Deemed Exchange, or else it would have disqualified the Deemed Exchange from Sections 351(a) and 351(b)
treatment altogether. Section 351(e) and applicable regulations provide that, if our contribution of assets to GOV in the Deemed Exchange resulted, directly or indirectly, in diversification
for us, then Sections 351(a) and
17
Table of Contents
351(b)
would not apply to the Deemed Exchange. Because GOV is expected to be a REIT for its taxable year that commenced at the Effective Time and because the public was viewed as having contributed
cash to GOV in the Deemed Exchange, our contribution of assets to GOV in the Deemed Exchange was automatically treated as resulting in diversification for us unless the assets we contributed to GOV in
the Deemed Exchange were already a diversified portfolio. That is, if the GOV portfolio was already a diversified portfolio, then the Deemed Exchange did not result in diversification for us, and thus
Section 351(e) did not apply. Regulations under Section 351(e) provide a diversification standard for investment securities, including a provision that treats federal government
securities as automatically diversified; but these regulations do not provide a diversification standard for real estate. Still, the IRS has over the years issued several private letter rulings on
diversified real estate portfolios, in each instance concluding that the real estate portfolio in question was a diversified portfolio and thus that Section 351(e) was inapplicable. These
private letter rulings do not consistently cite the same diversification factors, but cumulatively they reference similar factors such as geographic diversity, tenant diversity, lease length diversity
and asset type diversity. Although private letter rulings are not precedential and cannot be relied upon by taxpayers other than the ones to whom they are addressed, they do provide insight into how
the IRS interprets and applies the federal income tax law.
We
believe that the GOV real estate portfolio at the Effective Time was diversified for Section 351(e) purposes, given the properties' diversity in geography, size, age, operating
history and remaining lease length. We believe that having the federal government as the principal tenant in most of the GOV portfolio did not detract from the diversified nature of these properties
for several reasons, including:
-
•
-
notwithstanding the presence or absence of tenant diversification, the owner of the portfolio continued to have an
economic stake in each individual property through its residual interest in each property at the expiration of each property's lease(s);
-
•
-
the portfolio's modest number of tenants was consistent with the business model of other publicly traded REITs and with
prudent real estate practices generally;
-
•
-
tenant diversity may be a proxy for diverse outcomes as to lease renewals, and the GOV portfolio's outcomes as to lease
renewals were sufficiently diversified because the properties were leased to many different government agencies, some of which may have had renewal needs and others of which may not have;
-
•
-
tenant diversity may also be a proxy for exposure to diverse credit profiles, but as with federal government securities,
which are treated as automatically diversified in the context of an investment securities portfolio, presumably on the theory that there is little or no credit risk, so too should real estate tenanted
by the federal government be treated as automatically diversified in the context of a real estate portfolio.
Based
on the above analysis, we believe that Section 351(e) did not apply to the Deemed Exchange.
Second,
Section 357(a) provides that liabilities assumed by a transferee from a transferor, in connection with a transfer of assets from the transferor to the transferee governed
by Sections 351(a) and 351(b), will not be taxable consideration to the transferor. However, Section 357(b) provides that Section 357(a) will not apply, and thus all assumed
liabilities will constitute taxable consideration (up to the amount of actual realized gains), if any liability assumption in the transaction was made either with a purpose to avoid federal income tax
or without a bona fide business purpose. In Revenue Ruling 79-258, 1979-2 C.B. 143, and in several subsequent private letter rulings, the IRS applied Sections 357(a) and
357(b) to conclude that a proportional part of the total debt of a parent corporation can be allocated to the properties and assets contributed to a new subsidiary and that this proportional part can
be assigned to and assumed by the subsidiary as follows: the subsidiary may
18
Table of Contents
assume
a new debt, the loan proceeds of which are used by the parent to pay down the parent's other, older debt. In effect, the new debt is successor indebtedness of the parent which has been
proportionately assigned to and assumed by the subsidiary. We and GOV attempted to structure the Deemed Exchange so as to come within the principles articulated in these published and private rulings,
and we believe that we did so. For example, based on our computations, in the Deemed Exchange we and GOV believe that we allocated, and therefore that GOV assumed in the form of the GOV credit
facility and GOV's other liabilities, no more than a proportional part of our overall indebtedness prior to the Deemed Exchange. Accordingly, we believe that GOV's assumption of liabilities from us in
the Deemed Exchange was nontaxable consideration to us under Section 357(a) of the Code.
Third,
related to but perhaps distinct from the preceding issue under Sections 357(a) and 357(b) of the IRC, Waterman Steamship v. Commissioner, 430 F.2d 1185
(5th Cir. 1970), and subsequent tax cases apply a judicial recharacterization rule to pre-transaction dividends funded from newly borrowed proceeds. Under this case law, part or all
of a pre-transaction dividend funded
from a new borrowing is recharacterized as a taxable sale for cash, if the borrowing is paid off post-transaction with proceeds from cash investors, and if the new borrowing is temporary
and supported by the impending cash investment. This case law, to the extent it was applicable to our transactions with GOV, would have overturned our nontaxable treatment of the debt funded, cash
dividend paid by GOV to us prior to the Deemed Exchange, and instead would have recharacterized that cash flow as our cash sale of a portion of GOV to the new public shareholders of GOV, a
characterization which would have rendered Sections 351(a) and 351(b) of the IRC inapplicable. For a number of reasons, we believe that this case law did not apply to our transactions with GOV,
and thus that the Deemed Exchange was properly governed by Sections 351(a), 351(b) and 357(a) of the IRC. As discussed above, under the authority of Revenue Ruling 79-258,
1979-2 C.B. 143, and subsequent private letter rulings, the GOV credit facility and the dividend to us funded from that credit facility were not properly viewed as a new borrowing and
associated dividend but instead as the mechanism by which no more than a proportional amount of our overall debt was fairly assigned to and assumed by GOV. Further, the GOV credit facility and the
associated dividend were put in place and completed before the outcome of GOV's IPO was known. In our view, this timing not only demonstrates that the GOV credit facility and associated dividend were
a separate, independent step from the IPO for federal income tax purposes, but also demonstrates that the lenders underwriting GOV's credit facility, which has a four-year term inclusive
of renewal options, looked to the security of GOV's portfolio and revenues rather than the success of GOV's IPO. In addition, when the GOV credit facility was put in place, the amount of cash that
might have been raised in a potential IPO was not known, and thus that cash amount could have been greater than or less than the amount outstanding on the GOV credit facility at the Effective Time.
Finally, the case law at issue involves pre-transaction dividends where the underlying transaction is already a sale of subsidiary stock between a seller and a buyer, typically for cash,
and so the effect of the judicial recharacterization is merely to convert the subject dividend proceeds into additional sale proceeds. However, our transactions with GOV and the Deemed Exchange were
different because there was no sale by us to the public of GOV shares included in the baseline set of transactions, and we thus believe it would have been improper to recharacterize a
pre-transaction dividend as a sale in circumstances in which no sale is formally occurring.
Consequences if Deemed Exchange Were Taxable.
Based on representations from us and from GOV, our tax counsel, Sullivan &
Worcester LLP,
opined that the Deemed Exchange should be governed by Sections 351(a) and 357(a) of the IRC, except for up to approximately $6 million of gain recognized by us under
Section 351(b) of the IRC in respect of GOV's obligation to reimburse us for certain amounts that we advanced to GOV. However, upon review the IRS or a court might conclude otherwise. For
example, contrary to Sullivan & Worcester LLP's opinion and our belief, the IRS or a court might take one or more of the following views: that the GOV portfolio was not a diversified
19
Table of Contents
portfolio
for purposes of Section 351(e) of the IRC; that the assumption of liabilities by GOV from us in the Deemed Exchange was governed by Section 357(b) rather than
Section 357(a) of the IRC; or that the debt funded, cash dividend paid by GOV to us was properly recharacterized as sale proceeds that preclude the application of Sections 351(a) and
351(b) of the IRC. If we were unsuccessful in challenging any such adverse determination, then we would recognize most or all of the taxable gain in the GOV portfolio, computed as discussed below. We
expect that any taxable gain that we recognized or may be required to recognize, including the up to approximately $6 million of gain we recognized
under Section 351(b), would be treated as capital gain, subject to ordinary income treatment for any depreciation recaptured under Sections 1245 and 1250 of the IRC.
If
the Deemed Exchange were not governed by Sections 351(a), 351(b) and 357(a), our recognized taxable gain in the GOV portfolio would generally have equaled our aggregate amount
realized in the Deemed Exchange, minus our aggregate adjusted tax basis in the GOV portfolio immediately before the Effective Time. Our aggregate amount realized in the Deemed Exchange equaled the sum
of (1) the fair market value of the GOV shares that we owned immediately after the Effective Time, (2) the liabilities that GOV was treated as assuming from us in the Deemed Exchange,
and (3) the approximately $6 million reimbursement obligation from GOV to us. Employing the valuation methodologies described below, we estimate that, if contrary to our expectation we
recognized significant gain as a result of the Deemed Exchange, then this taxable gain would have been approximately $85 million.
In
computing our aggregate amount realized, we were required to value for federal income tax purposes the GOV shares that we owned immediately after the Effective Time. Under applicable
judicial precedent, it is possible that the following two valuations may differ for federal income tax purposes: (1) the per share fair market value of the GOV shares that we owned immediately
after the Effective Time, versus (2) the average of the reported high and low trading prices for the GOV shares in the public market on the date of the Effective Time (called the "Initial
Price"). Because of the factual nature of the value of GOV shares, Sullivan & Worcester LLP is unable to render an opinion on the valuation of GOV shares generally or on the valuation of
the GOV shares that we owned immediately after the Effective Time. Nevertheless, we believe that the per share fair market value of any and all GOV shares at the Effective Time was properly valued at
the Initial Price for federal income tax purposes. Accordingly, the Initial Price will be used for all of our tax reporting, including for purposes of computing any gain we may have recognized in the
Deemed Exchange.
Prior
to the Deemed Exchange, we held the assets comprising the GOV portfolio for investment with a view to long-term income production and capital appreciation, and the
conversion of GOV into a separate REIT by means of its IPO represented a new, unique opportunity to realize the value of that investment. Accordingly, we believe that any gains we recognized in the
GOV portfolio as a result of the Deemed Exchange, including in any event the up to approximately $6 million recognized as a result of Section 351(b), would not have been subject to the
100% penalty tax of Section 857(b)(6) of the IRC, described above, applicable to gains from the disposition of inventory or other property held primarily for sale to customers. Moreover, we
believe that any such recognized gains from the Deemed Exchange qualified as gains from disposition of real property, and therefore counted favorably toward our compliance with the 75% and 95% gross
income tests, as described above.
If
in a later year it is ultimately determined, contrary to our expectation, that we recognized additional gain or income as a result of the Deemed Exchange not qualifying under
Sections 351(a), 351(b) or 357(a) of the IRC, then we may be required to amend our tax reports, including those sent to our shareholders, and we will owe federal income tax on the undistributed
gain and income unless we elect to pay a sufficient deficiency dividend to our shareholders. As discussed above, deficiency dividends may be included in our deduction for dividends paid for the year
in which such gain or income is recognized, but an interest charge would be imposed upon us for the delay in distribution.
20
Table of Contents
Our Investment in GOV.
Following the Effective Time, we owned and continue to own a significant amount, in excess of 10%, of GOV
shares. In general,
our aggregate initial tax basis in these shares equaled our aggregate adjusted tax basis in the GOV portfolio immediately before the Effective Time, minus the liabilities accrued for federal income
tax purposes and assumed by GOV from us in the Deemed Exchange, plus any gain we recognized in the Deemed Exchange, minus the approximately $6 million reimbursement obligation received by us
from GOV. As discussed above, we believe that we did not recognize, and our counsel Sullivan & Worcester LLP opined that we should not have recognized, any gain in the Deemed Exchange,
except up to the extent of GOV's approximately $6 million reimbursement obligation to us.
For
any of our taxable years in which GOV qualifies as a REIT, our investment in GOV will count as a qualifying REIT asset toward the REIT gross asset tests and our gains and dividends
from GOV shares will count as qualifying income under the 75% and 95% gross income tests, all as described above. However, because we cannot control GOV's compliance with the federal income tax
requirements for REIT qualification and taxation, we joined with GOV in filing a protective taxable REIT subsidiary election under Section 856(l) of the IRC, effective June 9, 2009, and
we have reaffirmed this protective election with GOV every January 1 thereafter, and may continue to do so, unless and until our ownership of GOV falls below 9.8%. Pursuant to this protective
taxable REIT subsidiary election, we believe that even if GOV is not a REIT for some reason, then it would instead be considered one of our taxable REIT subsidiaries and treated in the manner
described above. As one of our taxable REIT subsidiaries, we believe that GOV's failure to qualify as a REIT would not jeopardize our own qualification as a REIT even though we own more than 10% of
it.
As
discussed above, the transaction agreement contains provisions that require GOV and us, due to our ongoing affiliation, to refrain from taking actions that may jeopardize the other's
qualifications as a REIT under the IRC. For example, each of us is obligated to limit its investment in any tenant of the other, so that neither owns more than 4.9% of any such tenant, and each of us
is obligated to cooperate reasonably with the other's requests motivated by REIT qualification and taxation.
Acquisition of C Corporations
On July 17, 2008, we acquired a C corporation in a transaction where the C corporation was ultimately merged into our
disregarded entity under Treasury regulations issued under Section 7701 of the IRC, all as described in Section 381(a) of the IRC. Thus, after the acquisition,
all assets, liabilities and items of income, deduction and credit of the acquired corporation, and a proportionate share of the assets, liabilities and items of income, deduction and credit of the
partnership in which the acquired corporation was a partner, have been treated as ours for purposes of the various REIT qualification tests described above. In addition, we generally were treated as
the successor to the acquired corporate entity's federal income tax attributes, such as the entity's adjusted tax bases in its assets and its depreciation schedules; we were also treated as the
successor to the acquired corporate entity's earnings and profits for federal income tax purposes.
Built-in Gains from C Corporations.
As described above, notwithstanding our qualification and taxation as a REIT, we may still be
subject
to corporate taxation in particular circumstances. Specifically, if we acquire an asset from a corporation in a transaction in which our adjusted tax basis in the asset is determined by reference to
the adjusted tax basis of that asset in the hands of a present or former C corporation, and if we subsequently recognize gain on the disposition of that asset during the ten year period beginning on
the date on which the asset ceased to be owned by the C corporation, then we will generally pay tax at the highest regular corporate tax rate, currently 35%, on the lesser of (1) the excess, if
any, of the asset's fair market value over its adjusted tax basis, each determined as of the time the asset ceased to be owned by the C corporation, or (2) our gain recognized in the
disposition. Accordingly, any taxable disposition of an asset so acquired during the applicable ten year
21
Table of Contents
period
could be subject to tax under these rules. However, we have not disposed, and have no present plan or intent to dispose, of any material assets acquired in such transactions.
To
the extent of our gains in a taxable year that are subject to the built-in gains tax described above, net of any taxes paid on such gains with respect to that taxable
year, our taxable dividends paid to you in the following year are eligible for treatment as qualified dividends that are taxed to our noncorporate shareholders at the maximum capital gain rate of 15%
(scheduled to expire for taxable years beginning after December 31, 2010).
Earnings and Profits.
A REIT may not have any undistributed C corporation earnings and profits at the end of any taxable year. Upon the
closing of
the July 17, 2008 transaction, we succeeded to the undistributed earnings and profits, if any, of the acquired corporate entity. Thus, we needed to distribute any such earnings and profits no
later than the end of the applicable tax year. If we failed to do so, we would not qualify to be taxed as a REIT for that year and a number of years thereafter, unless we are able to rely on the
relief provision described below.
Although
Sullivan & Worcester LLP is unable to render an opinion on factual determinations such as the amount of undistributed earnings and profits, we retained accountants
to compute the amount of
undistributed earnings and profits that we inherited in the July 17, 2008 transaction. Based on these calculations, we believe that we did not inherit any undistributed earnings and profits
that remained undistributed at the end of the applicable tax year. However, there can be no assurance that the IRS would not, upon subsequent examination, propose adjustments to our calculation of the
undistributed earnings and profits that we inherited, including adjustments that might be deemed necessary by the IRS as a result of its examination of the companies we acquired. In any such
examination, the IRS might consider all taxable years of the acquired subsidiaries as open for review for purposes of its proposed adjustments. If it is subsequently determined that we had
undistributed earnings and profits as of the end of the applicable tax year, we may be eligible for a relief provision similar to the "deficiency dividends" procedure described above. To utilize this
relief provision, we would have to pay an interest charge for the delay in distributing the undistributed earnings and profits; in addition, we would be required to distribute to our shareholders, in
addition to our other REIT distribution requirements, the amount of the undistributed earnings and profits less the interest charge paid.
Acquisition of Publicly Traded Partnership
In 2004, we acquired all of the limited partnership interests and the general partnership interest of a publicly traded partnership as
well as certain of the partnership's affiliated entities. Prior to our acquisition of the publicly traded partnership and its affiliates, the acquired entities directly or indirectly owned
substantially all of the outstanding equity interests in various noncorporate subsidiaries and four C corporations. However, before our acquisition of these entities, all four C corporation
subsidiaries were converted into disregarded entities under Treasury regulations issued under Section 7701 of the IRC and thus considered liquidated for federal income tax purposes. Upon our
acquisition, the publicly traded partnership itself and its affiliates and subsidiaries became disregarded entities of ours under Treasury regulations issued under Section 7701 of the IRC.
Thus, after the 2004 acquisition, all assets, liabilities and items of income, deduction and credit of these acquired entities have been treated as ours for purposes of the various REIT qualification
tests described above. Our initial tax basis in the acquired assets is our cost for acquiring them, and we believe that we did not succeed to any C corporation earnings and profits in this
acquisition.
Depreciation and Federal Income Tax Treatment of Leases
Our initial tax bases in our assets will generally be our acquisition cost. We will generally depreciate our real property on a
straight-line basis over 40 years and our personal property over the
22
Table of Contents
applicable
shorter periods. These depreciation schedules may vary for properties that we acquire through tax-free or carryover basis acquisitions.
We
are entitled to depreciation deductions from our facilities only if we are treated for federal income tax purposes as the owner of the facilities. This means that the leases of the
facilities must be classified for federal income tax purposes as true leases, rather than as sales or financing arrangements, and we believe this to be the case. In the case of
sale-leaseback arrangements, the IRS could assert that we realized prepaid rental income in the year of purchase to the extent that the value of a leased property, at the time of purchase,
exceeded the purchase price for that property. While we believe that the value of leased property at the time of purchase did not exceed purchase prices, because of the lack of clear precedent we
cannot provide assurances as to whether the IRS might successfully assert the existence of prepaid rental income in any of our sale-leaseback transactions.
Like-Kind Exchanges
In May 2008, we entered into a series of agreements to sell 48 medical office, clinic and biotech laboratory buildings to SNH. Each of
these properties was sold during 2008 or 2009 except for one, which is no longer subject to an agreement for sale. On advice of counsel, we believe that each of these agreements should be viewed as a
separate transaction for federal income tax purposes. We therefore entered into IRC Section 1031 like-kind exchanges for some, but not all, of the disposed properties and reported
those exchanges as dispositions and exchanges separate from each other and from any cash sales.
If,
contrary to our view, the IRS recharacterizes these agreements as a composite transaction, then some or all of our realized gain on the several dispositions that were intended to be
like-kind exchanges may, contrary to our expectation of nonrecognition, be recognized in full. In that event, we will not have distributed all of our capital gain for 2008 and 2009, and we
may owe federal income tax on the undistributed capital gain unless we elect to pay deficiency dividends to our shareholders. As discussed above, deficiency dividends may be included in our deduction
for dividends paid for the year in which such gain is recognized, but an interest charge would be imposed upon us for the delay in distribution.
Taxation of U.S. Shareholders
The maximum individual federal income tax rate for long-term capital gains is generally 15% (scheduled to increase to 20%
for taxable years beginning after December 31, 2010) and for most corporate dividends is generally also 15% (scheduled to increase to ordinary income rates for taxable years beginning after
December 31, 2010). However, because we are not generally subject to federal income tax on the portion of our REIT taxable income or capital gains distributed to our shareholders, dividends on
our shares generally are not eligible for
such 15% tax rate on dividends while that rate is in effect. As a result, our ordinary dividends continue to be taxed at the higher federal income tax rates applicable to ordinary income. However, the
favorable federal income tax rates for long-term capital gains, and while in effect, for dividends, generally apply to:
-
(1)
-
your
long-term capital gains, if any, recognized on the disposition of our shares;
-
(2)
-
our
distributions designated as long-term capital gain dividends (except to the extent attributable to real estate depreciation recapture, in
which case the distributions are subject to a maximum 25% federal income tax rate);
-
(3)
-
our
dividends attributable to dividends, if any, received by us from non-REIT corporations such as taxable REIT subsidiaries; and
23
Table of Contents
-
(4)
-
our
dividends to the extent attributable to income upon which we have paid federal corporate income tax.
As
long as we qualify as a REIT for federal income tax purposes, a distribution to our U.S. shareholders (including any constructive distributions on our common shares or on our
series D cumulative convertible preferred shares) that we do not designate as a capital gain dividend will be treated as an ordinary income dividend to the extent of our current or accumulated
earnings and profits. Distributions made out of our current or accumulated earnings and profits that we properly designate as capital gain dividends will be taxed as long-term capital
gains, as discussed below, to the extent they do not exceed our actual net capital gain for the taxable year. However, corporate shareholders may be required to treat up to 20% of any capital gain
dividend as ordinary income under Section 291 of the IRC.
In
addition, we may elect to retain net capital gain income and treat it as constructively distributed. In that case:
-
(1)
-
we
will be taxed at regular corporate capital gains tax rates on retained amounts;
-
(2)
-
each
U.S. shareholder will be taxed on its designated proportionate share of our retained net capital gains as though that amount were distributed and
designated a capital gain dividend;
-
(3)
-
each
U.S. shareholder will receive a credit for its designated proportionate share of the tax that we pay;
-
(4)
-
each
U.S. shareholder will increase its adjusted basis in our shares by the excess of the amount of its proportionate share of these retained net capital
gains over its proportionate share of the tax that we pay; and
-
(5)
-
both
we and our corporate shareholders will make commensurate adjustments in our respective earnings and profits for federal income tax purposes.
If
we elect to retain our net capital gains in this fashion, we will notify our U.S. shareholders of the relevant tax information within 60 days after the close of the affected taxable year.
As
discussed above, for noncorporate U.S. shareholders, long-term capital gains are generally taxed at maximum rates of 15% (scheduled to increase to 20% for taxable years
beginning after December 31, 2010) or 25%, depending upon the type of property disposed of and the previously claimed depreciation with respect to this property. If for any taxable year we
designate capital gain dividends for U.S. shareholders, then a portion of the capital gain dividends we designate will be allocated to the holders of a particular class of shares on a percentage basis
equal to the ratio of the amount of the total dividends paid or made available for the year to the holders of that class of shares to the total dividends paid or made available for the year to holders
of all classes of our shares. We will similarly designate the portion of any capital gain dividend that is to be taxed to noncorporate U.S. shareholders at the maximum rates of 15% (scheduled to
increase to 20% for taxable years beginning
after December 31, 2010) or 25% so that the designations will be proportionate among all classes of our shares.
Distributions
in excess of current or accumulated earnings and profits will not be taxable to a U.S. shareholder to the extent that they do not exceed the shareholder's adjusted tax
basis in the shareholder's shares but will reduce the shareholder's basis in those shares. To the extent that these excess distributions exceed the adjusted basis of a U.S. shareholder's shares, they
will be included in income as capital gain, with long-term gain generally taxed to noncorporate U.S. shareholders at a maximum rate of 15% (scheduled to increase to 20% for taxable years
beginning after December 31,
24
Table of Contents
2010).
No U.S. shareholder may include on his federal income tax return any of our net operating losses or any of our capital losses.
If
a dividend is declared in October, November, or December to shareholders of record during one of those months, and is paid during the following January, then for federal income tax
purposes the dividend will be treated as having been both paid and received on December 31 of the prior taxable year. Also, items that are treated differently for regular and alternative
minimum tax purposes are to be allocated between a REIT and its shareholders under Treasury regulations which are to be prescribed. It is possible that these Treasury regulations will require tax
preference items to be allocated to our shareholders with respect to any accelerated depreciation or other tax preference items that we claim.
A
U.S. shareholder will generally recognize gain or loss equal to the difference between the amount realized and the shareholder's adjusted basis in our shares that are sold or
exchanged. This gain or loss will be capital gain or loss and will be long-term capital gain or loss if the shareholder's holding period in the shares exceeds one year. In addition, any
loss upon a sale or exchange of our shares held for six months or less will generally be treated as a long-term capital loss to the extent of our long-term capital gain
dividends during the holding period.
In
contrast to the typical redemption of preferred shares for cash only, discussed above, if a U.S. shareholder receives a number of our common shares as a result of a conversion or
repurchase of series D cumulative convertible preferred shares, then the transaction will be treated as a recapitalization. As such, the shareholder would recognize income or gain only to the
extent of the lesser of (1) the excess, if any, of the value of the cash and common shares received over such shareholder's adjusted tax basis in its series D cumulative convertible
preferred shares surrendered or (2) the cash received. Any cash a shareholder receives, up to the amount of income or gain recognized, would generally be characterized as a dividend to the
extent that a surrender of series D cumulative convertible preferred shares to us for cash only would be taxable as a dividend, taking into account the surrendering shareholder's continuing
actual or constructive ownership interest in our shares, if any, as discussed above, and the balance of the recognized amount, if any, will be gain. A U.S. shareholder's basis in its common shares
received would be equal to the basis for the series D cumulative convertible
preferred shares surrendered less any cash received plus any income or gain recognized. A U.S. shareholder's holding period in the common shares received would be the same as the holding period for
the series D cumulative convertible preferred shares surrendered. If, in addition to common shares, upon conversion or repurchase a U.S. shareholder receives rights or warrants to acquire our
common shares or other of our securities, then the receipt of the rights or warrants may be taxable, and we encourage you to consult your tax advisor as to the consequences of the receipt of rights or
warrants upon conversion or repurchase.
A
U.S. shareholder generally will not recognize any income, gain or loss upon conversion of series D cumulative convertible preferred shares into common shares except with respect
to cash, if any, received in lieu of a fractional common share. A U.S. shareholder's basis in its common shares received would be equal to the basis for the series D cumulative convertible
preferred shares surrendered less any basis allocable to any fractional share exchanged for cash. A U.S. shareholder's holding period in the common shares received would be the same as the holding
period for the series D cumulative convertible preferred shares surrendered. Any cash received in lieu of a fractional common share upon conversion will be treated as a payment in exchange for
the fractional common share. Accordingly, receipt of cash in lieu of a fractional share generally will result in capital gain or loss, measured by the difference between the cash received for the
fractional share and the adjusted tax basis attributable to the fractional share. If, in addition to common shares, upon conversion a U.S. shareholder receives rights or warrants to acquire our common
shares or other of our securities, then
25
Table of Contents
the
receipt of the rights or warrants may be taxable, and we encourage you to consult your tax advisor as to the consequences of the receipt of rights or warrants upon conversion.
The
IRC imposes a penalty for the failure to properly disclose a "reportable transaction." A reportable transaction currently includes, among other things, a sale or exchange of our
shares resulting in a tax loss in excess of (i) $10 million in any single year or $20 million in any combination of years in the case of our shares held by a C corporation or by a
partnership with only C corporation partners or (ii) $2 million in any single year or $4 million in any combination of years in the case of our shares held by any other
partnership or an S corporation, trust or individual, including losses that flow through pass through entities to individuals. A taxpayer discloses a reportable transaction by filing IRS
Form 8886 with its federal income tax return, and, in the first year of filing, a copy of Form 8886 must be sent to the IRS's Office of Tax Shelter Analysis. The penalty for failing to
disclose a reportable transaction is generally $10,000 in the case of a natural person and $50,000 in any other case.
Noncorporate
U.S. shareholders who borrow funds to finance their acquisition of our shares could be limited in the amount of deductions allowed for the interest paid on the indebtedness
incurred. Under Section 163(d) of the IRC, interest paid or accrued on indebtedness incurred or continued to purchase or carry property held for investment is generally deductible only to the
extent of the investor's net investment income. A U.S. shareholder's net investment income will include ordinary income dividend distributions received from us and, if an appropriate election is made
by the shareholder, capital gain dividend distributions received from us; however, distributions treated as a nontaxable return of the shareholder's basis will not enter into the computation of net
investment income.
Taxation of Tax-Exempt Shareholders
In Revenue Ruling 66-106, the IRS ruled that amounts distributed by a REIT to a tax-exempt employees' pension
trust did not constitute "unrelated business taxable income," even though the REIT may have financed some of its activities with acquisition indebtedness. Although revenue rulings are interpretive in
nature and subject to revocation or modification by the IRS, based upon the analysis and conclusion of Revenue Ruling 66-106, our distributions made to shareholders that are
tax-exempt pension plans, individual retirement accounts, or other qualifying tax-exempt entities should not constitute unrelated business taxable income, provided that the
shareholder has not financed its acquisition of our shares with "acquisition indebtedness" within the meaning of the IRC, and provided further that, consistent with our present intent, we do not hold
a residual interest in a real estate mortgage investment conduit.
Tax-exempt
pension trusts that own more than 10% by value of a "pension-held REIT" at any time during a taxable year may be required to treat a percentage of all
dividends received from the pension-held REIT during the year as unrelated business taxable income. This percentage is equal to the ratio of:
-
(1)
-
the
pension-held REIT's gross income derived from the conduct of unrelated trades or businesses, determined as if the pension-held
REIT were a tax-exempt pension fund, less direct expenses related to that income, to
-
(2)
-
the
pension-held REIT's gross income from all sources, less direct expenses related to that income,
except
that this percentage shall be deemed to be zero unless it would otherwise equal or exceed 5%. A REIT is a pension-held REIT if:
-
•
-
the REIT is "predominantly held" by tax-exempt pension trusts; and
26
Table of Contents
-
•
-
the REIT would fail to satisfy the "closely held" ownership requirement discussed above if the stock or beneficial
interests in the REIT held by tax-exempt pension trusts were viewed as held by tax-exempt pension trusts rather than by their respective beneficiaries.
A
REIT is predominantly held by tax-exempt pension trusts if at least one tax-exempt pension trust owns more than 25% by value of the REIT's stock or beneficial interests or if
one or more tax-exempt pension trusts, each owning more than 10% by value of the REIT's stock or beneficial interests, own in the aggregate more than 50% by value of the REIT's stock or
beneficial interests. Because of the share ownership concentration restrictions in our declaration of trust and bylaws, we believe that we are not and will not be a pension-held REIT.
However, because our shares are publicly traded, we cannot completely control whether or not we are or will become a pension-held REIT.
Social
clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts and qualified group legal services plans exempt from federal income taxation under
Sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of the IRC, respectively, are subject to different unrelated business taxable income rules, which generally will require them to characterize
distributions from a REIT as unrelated business taxable income. In addition, these prospective investors should consult their own tax advisors concerning any "set aside" or reserve requirements
applicable to them.
Taxation of Non-U.S. Shareholders
The rules governing the United States federal income taxation of non-U.S. shareholders are complex, and the following
discussion is intended only as a summary of these rules. If you are a non-U.S. shareholder, we urge you to consult with your own tax advisor to determine the impact of United States
federal, state, local, and foreign tax laws, including any tax return filing and other reporting requirements, with respect to your investment in our shares.
In
general, a non-U.S. shareholder will be subject to regular United States federal income tax in the same manner as a U.S. shareholder with respect to its investment in our
shares if that investment is effectively connected with the non-U.S. shareholder's conduct of a trade or business in the United States (and, if provided by an applicable income tax treaty,
is attributable to a permanent establishment or fixed base the non-U.S. shareholder maintains in the United States). In addition, a corporate non-U.S. shareholder that receives
income that is or is deemed effectively connected with a trade or business in the United States may also be subject to the 30% branch profits tax under Section 884 of the IRC, which is payable
in addition to regular United States federal corporate income tax. The balance of this discussion of the United States federal income taxation of non-U.S. shareholders addresses only those
non-U.S. shareholders whose investment in our shares is not effectively connected with the conduct of a trade or business in the United States.
A
distribution by us to a non-U.S. shareholder that is not attributable to gain from the sale or exchange of a United States real property interest and that is not designated
as a capital gain dividend will be treated as an ordinary income dividend to the extent that it is made out of current or accumulated earnings and profits. A distribution of this type will generally
be subject to United States federal income tax and withholding at the rate of 30%, or at a lower rate if the non-U.S. shareholder has in the manner prescribed by the IRS demonstrated its
entitlement to benefits under a tax treaty. In the case of any in kind distributions of property, we or other applicable withholding agents will collect the amount required to be withheld by reducing
to cash for remittance to the IRS a sufficient portion of the property that the non-U.S. shareholder would otherwise receive, and the non-U.S. shareholder may bear brokerage or
other costs for this withholding procedure. Because we cannot determine our current and accumulated earnings and profits until the end of the taxable year, withholding at the rate of 30% or applicable
lower treaty rate will generally be imposed on the gross amount of any distribution to a non-U.S. shareholder that we make and do not designate a capital gain dividend.
27
Table of Contents
Notwithstanding
this withholding on distributions in excess of our current and accumulated earnings and profits, these distributions are a nontaxable return of capital to the extent that they do not
exceed the non-U.S. shareholder's adjusted basis in our shares, and the nontaxable return of capital will reduce the adjusted basis in these shares. To the extent that distributions in
excess of current and accumulated earnings and profits exceed the non-U.S. shareholder's adjusted basis in our shares, the distributions will give rise to tax liability if the
non-U.S. shareholder would otherwise be subject to tax on any gain from the sale or exchange of these shares, as discussed below. A non-U.S. shareholder may seek a refund from
the IRS of amounts withheld on distributions to him in excess of our current and accumulated earnings and profits.
From
time to time, some of our distributions may be attributable to the sale or exchange of United States real property interests. However, capital gain dividends that are received by a
non-U.S. shareholder, including dividends attributable to our sales of United States real property interests, and that are deductible by us in respect of our 2005 taxable year and
thereafter will be subject to the taxation and withholding regime applicable to ordinary income dividends and the branch profits tax will not apply, provided that (1) the capital gain dividends
are received with respect to a class of shares that is "regularly traded" on a domestic "established securities market" such as the NYSE both as defined by applicable Treasury regulations, and
(2) the non-U.S.
shareholder does not own more than 5% of that class of shares at any time during the one-year period ending on the date of distribution of the capital gain dividends. If both of these
provisions are satisfied, qualifying non-U.S. shareholders will not be subject to withholding on capital gain dividends as though those amounts were effectively connected with a United
States trade or business, and qualifying non-U.S. shareholders will not be required to file United States federal income tax returns or pay branch profits tax in respect of these capital
gain dividends. Instead, these dividends will be subject to United States federal income tax and withholding as ordinary dividends, currently at a 30% tax rate unless reduced by applicable treaty, as
discussed below. Although there can be no assurance in this regard, we believe that our common shares and each class of our preferred shares have been and will remain "regularly traded" on a domestic
"established securities market" within the meaning of applicable Treasury regulations; however, we can provide no assurance that our shares will continue to be "regularly traded" on a domestic
"established securities market" in future taxable years.
Except
as discussed above, for any year in which we qualify as a REIT, distributions that are attributable to gain from the sale or exchange of a United States real property interest are
taxed to a non-U.S. shareholder as if these distributions were gains effectively connected with a trade or business in the United States conducted by the non-U.S. shareholder.
Accordingly, a non-U.S. shareholder that does not qualify for the special rule above will be taxed on these amounts at the normal capital gain rates applicable to a U.S. shareholder,
subject to any applicable alternative minimum tax and to a special alternative minimum tax in the case of nonresident alien individuals; such a non-U.S. shareholder will be required to
file a United States federal income tax return reporting these amounts, even if applicable withholding is imposed as described below; and such a non-U.S. shareholder that is also a
corporation may owe the 30% branch profits tax under Section 884 of the IRC in respect of these amounts. We or other applicable withholding agents will be required to withhold from
distributions to such non-U.S. shareholders, and remit to the IRS, 35% of the maximum amount of any distribution that could be designated as a capital gain dividend. In addition, for
purposes of this withholding rule, if we designate prior distributions as capital gain dividends, then subsequent distributions up to the amount of the designated prior distributions will be treated
as capital gain dividends. The amount of any tax withheld is creditable against the non-U.S. shareholder's United States federal income tax liability, and the non-U.S.
shareholder may file for a refund from the IRS of any amount of withheld tax in excess of that tax liability.
Effective
generally from and after 2006, a special "wash sale" rule applies to a non-U.S. shareholder who owns any class of our shares if (1) the shareholder owns more
than 5% of that class
28
Table of Contents
of
shares at any time during the one-year period ending on the date of the distribution described below, or (2) that class of our shares is not, within the meaning of applicable
Treasury regulations, "regularly traded" on a domestic "established securities market" such as the NYSE. Although there can be no assurance in this regard, we believe that our common shares and each
class of our preferred shares have been and will remain "regularly traded" on a domestic "established securities market" within the meaning of applicable Treasury regulations, all as discussed above;
however, we can provide no assurance that our shares will continue to be "regularly traded" on a domestic "established securities market" in future taxable years. We thus anticipate this wash sale
rule to apply, if at all, only to a non-U.S. shareholder that owns more than 5% of either our
common shares or any class of our preferred shares. Such a non-U.S. shareholder will be treated as having made a "wash sale" of our shares if it (1) disposes of an interest in our
shares during the 30 days preceding the ex-dividend date of a distribution by us that, but for such disposition, would have been treated by the non-U.S. shareholder in
whole or in part as gain from the sale or exchange of a United States real property interest, and then (2) acquires or enters into a contract to acquire a substantially identical interest in
our shares, either actually or constructively through a related party, during the 61-day period beginning 30 days prior to the ex-dividend date. In the event of such a
wash sale, the non-U.S. shareholder will have gain from the sale or exchange of a United States real property interest in an amount equal to the portion of the distribution that, but for
the wash sale, would have been a gain from the sale or exchange of a United States real property interest. As discussed above, a non-U.S. shareholder's gain from the sale or exchange of a
United States real property interest can trigger increased United States taxes, such as the branch profits tax applicable to non-U.S. corporations, and increased United States tax filing
requirements.
If
for any taxable year we designate capital gain dividends for our shareholders, then a portion of the capital gain dividends we designate will be allocated to the holders of a
particular class of shares on a percentage basis equal to the ratio of the amount of the total dividends paid or made available for the year to the holders of that class of shares to the total
dividends paid or made available for the year to holders of all classes of our shares.
Tax
treaties may reduce the withholding obligations on our distributions. Under some treaties, however, rates below 30% that are applicable to ordinary income dividends from United
States corporations may not apply to ordinary income dividends from a REIT or may apply only if the REIT meets certain additional conditions. You must generally use an applicable IRS
Form W-8, or substantially similar form, to claim tax treaty benefits. If the amount of tax withheld with respect to a distribution to a non-U.S. shareholder exceeds the
shareholder's United States federal income tax liability with respect to the distribution, the non-U.S. shareholder may file for a refund of the excess from the IRS. The 35% withholding
tax rate discussed above on some capital gain dividends corresponds to the maximum income tax rate applicable to corporate non-U.S. shareholders but is higher than the current 15% and 25%
maximum rates on capital gains generally applicable to noncorporate non-U.S. shareholders. Treasury regulations also provide special rules to determine whether, for purposes of determining
the applicability of a tax treaty, our distributions to a non-U.S. shareholder that is an entity should be treated as paid to the entity or to those owning an interest in that entity, and
whether the entity or its owners are entitled to benefits under the tax treaty. In the case of any in kind distributions of property, we or other applicable withholding agents will have to collect the
amount required to be withheld by reducing to cash for remittance to the IRS a sufficient portion of the property that the non-U.S. shareholder would otherwise receive, and the
non-U.S. shareholder may bear brokerage or other costs for this withholding procedure.
If
our shares are not "United States real property interests" within the meaning of Section 897 of the IRC, then a non-U.S. shareholder's gain on sale of these shares
(including for this purpose a conversion of our series D cumulative convertible preferred shares into common shares) generally will not be subject to United States federal income taxation,
except that a nonresident alien individual who
29
Table of Contents
was
in the United States for 183 days or more during the taxable year may be subject to a 30% tax on this gain. Our shares will not constitute a United States real property interest if we are a
"domestically controlled REIT." A domestically controlled REIT is a REIT in which at all times during the preceding five-year period less than 50% in value of its shares is held directly
or indirectly by foreign persons. We believe that we have been and will remain a domestically controlled REIT and thus a non-U.S. shareholder's gain on sale of our shares will not be
subject to United States federal income taxation. However, because our shares are publicly traded, we can provide no assurance that we have been or will remain a domestically controlled REIT. If we
are not a domestically controlled REIT, a non-U.S. shareholder's gain on sale of our shares will not be subject to United States federal income taxation as a sale of a United States real
property interest, if that class of shares is "regularly traded," as defined by applicable Treasury regulations, on an established securities market like the NYSE, and the non-U.S.
shareholder has at all times during the preceding five years owned 5% or less by value of that class of shares. In this regard, because the shares of others may be redeemed, and in the case of the
series D cumulative convertible preferred shares, are convertible, a non-U.S. shareholder's percentage interest in a class of our shares may increase even if it acquires no
additional shares in that class. If the gain on the sale of our shares were subject to United States federal income taxation, the non-U.S. shareholder will generally be subject to the same
treatment as a U.S. shareholder with respect to its gain, will be required to file a United States federal income tax return reporting that gain, and a corporate non-U.S.
shareholder might owe branch profits tax under Section 884 of the IRC. A purchaser of our shares from a non-U.S. shareholder will not be required to withhold on the purchase price
if the purchased shares are regularly traded on an established securities market or if we are a domestically controlled REIT. Otherwise, a purchaser of our shares from a non-U.S.
shareholder may be required to withhold 10% of the purchase price paid to the non-U.S. shareholder and to remit the withheld amount to the IRS.
Backup Withholding and Information Reporting
Information reporting and backup withholding may apply to distributions or proceeds paid to our shareholders under the circumstances
discussed below. The backup withholding rate is currently 28% and is scheduled to increase to 31% after 2010. Amounts withheld under backup withholding are generally not an additional tax and may be
refunded by the IRS or credited against the shareholder's federal income tax liability. In the case of any in kind distributions of property by us to a shareholder, we or other applicable withholding
agents will have to collect any applicable backup withholding by reducing to cash for remittance to the IRS a sufficient portion of the property that our shareholder would otherwise receive, and the
shareholder may bear brokerage or other costs for this withholding procedure.
A
U.S. shareholder will be subject to backup withholding when it receives distributions on our shares or proceeds upon the sale, exchange, redemption, retirement or other disposition of
our shares, unless the U.S. shareholder properly executes, or has previously properly executed, under penalties of perjury an IRS Form W-9 or substantially similar form
that:
-
•
-
provides the U.S. shareholder's correct taxpayer identification number; and
-
•
-
certifies that the U.S. shareholder is exempt from backup withholding because it is a corporation or comes within another
exempt category, it has not been notified by the IRS that it is subject to backup withholding, or it has been notified by the IRS that it is no longer subject to backup withholding.
If
the U.S. shareholder has not provided and does not provide its correct taxpayer identification number on the IRS Form W-9 or substantially similar form, it may be subject to
penalties imposed by the IRS, and we or other applicable withholding agents may have to withhold a portion of any
30
Table of Contents
distributions
or proceeds paid to such U.S. shareholder. Unless the U.S. shareholder has established on a properly executed IRS Form W-9 or substantially similar form that it is a
corporation or comes within another exempt category, distributions or proceeds on our shares paid to it during the calendar year, and the amount of tax withheld, if any, will be reported to it and to
the IRS.
Distributions
on our shares to a non-U.S. shareholder during each calendar year and the amount of tax withheld, if any, will generally be reported to the non-U.S.
shareholder and to the IRS. This information reporting requirement applies regardless of whether the non-U.S. shareholder is subject to withholding on distributions on our shares or
whether the withholding was reduced or eliminated by an applicable tax treaty. Also, distributions paid to a non-U.S. shareholder on our shares may be subject to backup withholding, unless
the non-U.S. shareholder properly certifies its non-U.S. shareholder status on an IRS Form W-8 or substantially similar form in the manner described above.
Similarly, information reporting and backup withholding will not apply to proceeds a non-U.S. shareholder receives upon the sale, exchange, redemption, retirement or other disposition of
our shares, if the non-U.S. shareholder properly certifies its non-U.S. shareholder status on an IRS Form W-8 or substantially similar form. Even without
having executed an IRS Form W-8 or substantially similar form, however, in some cases information reporting and backup withholding will not apply to proceeds that a
non-U.S.
shareholder receives upon the sale, exchange, redemption, retirement or other disposition of our shares if the non-U.S. shareholder receives those proceeds through a broker's foreign
office.
Other Tax Consequences
Our tax treatment and that of our shareholders may be modified by legislative, judicial, or administrative actions at any time, which
actions may be retroactive in effect. The rules dealing with federal income taxation are constantly under review by the Congress, the IRS and the Treasury Department, and statutory changes, new
regulations, revisions to existing regulations, and revised interpretations of established concepts are issued frequently. Likewise, the rules regarding taxes other than federal income taxes may also
be modified. No prediction can be made as to the likelihood of passage of new tax legislation or other provisions, or the direct or indirect effect on us and our shareholders. Revisions to tax laws
and interpretations of these laws could adversely affect the tax or other consequences of an investment in our shares. We and our shareholders may also be subject to taxation by state, local or other
jurisdictions, including those in which we or our shareholders transact business or reside. These tax consequences may not be comparable to the federal income tax consequences discussed above.
ERISA PLANS, KEOGH PLANS AND INDIVIDUAL RETIREMENT ACCOUNTS
General Fiduciary Obligations
Fiduciaries of a pension, profit-sharing or other employee benefit plan subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended, or ERISA, must consider whether:
-
•
-
their investment in our shares satisfies the diversification requirements of ERISA;
-
•
-
the investment is prudent in light of possible limitations on the marketability of our shares;
-
•
-
they have authority to acquire our shares under the applicable governing instrument and Title I of ERISA; and
-
•
-
the investment is otherwise consistent with their fiduciary responsibilities.
31
Table of Contents
Trustees
and other fiduciaries of an ERISA plan may incur personal liability for any loss suffered by the plan on account of a violation of their fiduciary responsibilities. In addition,
these fiduciaries may be subject to a civil penalty of up to 20% of any amount recovered by the plan on account of a violation. Fiduciaries of any IRA, Roth IRA, Keogh Plan or other qualified
retirement plan not subject to Title I of ERISA, referred to as "non-ERISA plans," should consider that a plan may only make investments that are authorized by the appropriate governing
instrument.
Fiduciaries
considering an investment in our securities should consult their own legal advisors if they have any concern as to whether the investment is consistent with the foregoing
criteria or is otherwise appropriate. The sale of our securities to a plan is in no respect a representation by us or any underwriter of the securities that the investment meets all relevant legal
requirements with respect to investments by plans generally or any particular plan, or that the investment is appropriate for plans generally or any particular plan.
Prohibited Transactions
Fiduciaries of ERISA plans and persons making the investment decision for an IRA or other non-ERISA plan should consider
the application of the prohibited transaction provisions of ERISA and the IRC in making their investment decision. Sales and other transactions between an ERISA or non-ERISA plan, and
persons related to it, are prohibited transactions. The particular facts concerning the sponsorship, operations and other investments of an ERISA plan or non-ERISA plan may cause a wide
range of other
persons to be treated as disqualified persons or parties in interest with respect to it. A prohibited transaction, in addition to imposing potential personal liability upon fiduciaries of ERISA plans,
may also result in the imposition of an excise tax under the IRC or a penalty under ERISA upon the disqualified person or party in interest with respect to the plan. If the disqualified person who
engages in the transaction is the individual on behalf of whom an IRA or Roth IRA is maintained or his beneficiary, the IRA or Roth IRA may lose its tax-exempt status and its assets may be
deemed to have been distributed to the individual in a taxable distribution on account of the prohibited transaction, but no excise tax will be imposed. Fiduciaries considering an investment in our
securities should consult their own legal advisors as to whether the ownership of our securities involves a prohibited transaction.
"Plan Assets" Considerations
The Department of Labor, which has administrative responsibility over ERISA plans as well as non-ERISA plans, has issued a
regulation defining "plan assets." The regulation generally provides that when an ERISA or non-ERISA plan acquires a security that is an equity interest in an entity and that security is
neither a "publicly offered security" nor a security issued by an investment company registered under the Investment Company Act of 1940, as amended, the ERISA plan's or non-ERISA plan's
assets include both the equity interest and an undivided interest in each of the underlying assets of the entity, unless it is established either that the entity is an operating company or that equity
participation in the entity by benefit plan investors is not significant.
Each
class of our shares (that is, our common shares and any class of preferred shares that we have issued or may issue) must be analyzed separately to ascertain whether it is a publicly
offered security. The regulation defines a publicly offered security as a security that is "widely held," "freely transferable" and either part of a class of securities registered under the Exchange
Act, or sold under an effective registration statement under the Securities Act of 1933, as amended, provided the securities are registered under the Exchange Act within 120 days after the end
of the fiscal year of the issuer during which the offering occurred. Each class of our outstanding shares has been registered under the Exchange Act within the necessary time frame to satisfy the
foregoing condition.
32
Table of Contents
The
regulation provides that a security is "widely held" only if it is part of a class of securities that is owned by 100 or more investors independent of the issuer and of one another.
However, a security will not fail to be "widely held" because the number of independent investors falls below 100 subsequent to the initial public offering as a result of events beyond the issuer's
control. We believe our common
shares and our preferred shares are and will remain widely held, and we expect the same to be true of any additional class of preferred shares that we may issue, but we can give no assurances in this
regard.
The
regulation provides that whether a security is "freely transferable" is a factual question to be determined on the basis of all relevant facts and circumstances. The regulation
further provides that, where a security is part of an offering in which the minimum investment is $10,000 or less, some restrictions on transfer ordinarily will not, alone or in combination, affect a
finding that these securities are freely transferable. The restrictions on transfer enumerated in the regulation as not affecting that finding include:
-
•
-
any restriction on or prohibition against any transfer or assignment which would result in a termination or
reclassification for federal or state tax purposes or would otherwise violate any state or federal law or court order;
-
•
-
any requirement that advance notice of a transfer or assignment be given to the issuer and any requirement that either the
transferor or transferee, or both, execute documentation setting forth representations as to compliance with any restrictions on transfer which are among those enumerated in the regulation as not
affecting free transferability, including those described in the preceding clause of this sentence;
-
•
-
any administrative procedure which establishes an effective date, or an event prior to which a transfer or assignment will
not be effective; and
-
•
-
any limitation or restriction on transfer or assignment that is not imposed by the issuer or a person acting on behalf of
the issuer.
We
believe that the restrictions imposed under our declaration of trust and bylaws on the transfer of shares do not result in the failure of our shares to be "freely transferable."
Furthermore, we believe that there exist no other facts or circumstances limiting the transferability of our shares which are not included among those enumerated as not affecting their free
transferability under the regulation, and we do not expect or intend to impose in the future, or to permit any person to impose on our behalf, any limitations or restrictions on transfer which would
not be among the enumerated permissible limitations or restrictions.
Assuming
that each class of our shares will be "widely held" and that no other facts and circumstances exist which restrict transferability of these shares, we have received an opinion
of our counsel, Sullivan & Worcester LLP, that our shares will not fail to be "freely transferable" for purposes of the regulation due to the restrictions on transfer of the shares under
our declaration of trust and bylaws and that under the regulation each class of our currently outstanding shares is publicly offered and our assets will not be deemed to be "plan assets" of any ERISA
plan or non-ERISA plan that invests in our shares.
33
Table of Contents
Item 1A. Risk Factors.
Our business faces many risks. The risks described below may not be the only risks we face but are the risks we know of that we believe
may be material at this time. Additional risks that we do not yet know of, or that we currently think are immaterial, may also impair our business operations or financial results. If any of the events
or circumstances described in the following risks occurs, our business, financial condition or results of operations could suffer and the trading price of our securities could decline. Investors and
prospective investors should consider the following risks and the information contained under the heading "Warning Concerning Forward Looking Statements" before deciding whether to invest in our
securities.
Risks Related to Our Business
Financial markets are still recovering from a period of disruption and recession, and we are unable to predict if and when the economy will stabilize or improve.
The financial markets are still recovering from a recession, which created volatile market conditions, resulted in a decrease in
availability of business credit and led to the insolvency, closure or acquisition of a number of financial institutions. While the markets showed signs of stabilizing in the end of 2009, it remains
unclear when the economy will fully recover to pre-recession levels. Continued economic weakness in the U.S. economy generally or a new recession would likely adversely affect our
financial condition and that of our tenants and could impact the ability of our tenants to pay rent to us.
We may be unable to access the capital necessary to repay debts, invest in our properties or fund acquisitions.
To retain our status as a REIT, we are required to distribute at least 90% of our annual REIT taxable income (excluding capital gains)
and satisfy a number of organizational and operational requirements to which REITs are subject. Accordingly, we generally will not be able to retain sufficient cash from operations to repay debts,
invest in our properties or fund acquisitions. Our business and growth strategies depend, in part, upon our ability to raise additional capital at reasonable costs to repay our debts, invest in our
properties and fund new acquisitions. We believe we will be able to raise additional debt and equity capital at reasonable costs to refinance our debts at or prior to their maturities, to maintain our
properties and to invest at yields that exceed our cost of capital. However, recently there has been a significant reduction in the amount of business capital available on a global basis. Our ability
to raise reasonably priced capital is not guaranteed; we may be unable to raise reasonably priced capital because of reasons related to our business or for reasons beyond our control, such as market
conditions. If we are unable to raise reasonably priced capital, our business and growth strategies will fail.
If the current high unemployment rate in the U.S. continues or worsens, the occupancy and rents at our properties may decline.
If the current high unemployment rate in the U.S. worsens or continues for a prolonged period, the demand to lease office and
industrial space may continue to decline. Reductions in tenant demand to lease space are likely to result in reduced occupancy and rents at our properties. Many of our operating costs, such as
utilities, real estate taxes, insurance, etc., are fixed. If our rents decline our income and cash flow available for distribution will decline and we may become unable to maintain our current rate of
distributions to shareholders.
34
Table of Contents
We are currently dependent upon economic conditions in our four core markets: Metro Philadelphia, Pennsylvania; Oahu, Hawaii; Metro Washington, DC and Metro Boston,
Massachusetts.
Approximately 36.0% of our revenues in fiscal year 2009 were derived from properties located in our four core markets: Metro
Philadelphia, PA; Oahu, HI; Metro Washington, DC and Metro Boston, MA. A continued slowing in economic conditions in these markets will likely result in reduced demand from tenants for our properties.
A significant economic downturn in one or more of these areas could adversely affect our results of operations.
We face significant competition.
We face competition for acquisition opportunities from other investors, and this competition may subject us to the following
risks:
-
•
-
we may be unable to acquire a desired property because of competition from other well capitalized real estate investors,
including other REITs, numerous financial institutions, individuals and public and private companies who are actively engaged in our business; and
-
•
-
competition from other real estate investors, which may increase if access to credit becomes more readily available and
lending terms become more lenient, may significantly increase the purchase price we must pay to acquire properties.
In
addition, substantially all of our properties face competition for tenants. Some competing properties may be newer, better located and more attractive to tenants. Competing properties
may have lower rates of occupancy than our properties, which may result in competing owners leasing available space at lower effective rents than we offer at our properties. This competition may
affect our ability to attract and retain tenants and may reduce the net rents we are able to charge.
Increasing interest rates may adversely affect us and the value of your investment in our shares.
There are three principal ways that increasing interest rates may adversely affect us and the value of your investment in our
shares:
-
•
-
Funds borrowed under our revolving credit facility and certain of our other debt bear interest at variable rates. As of
December 31, 2009, we had approximately $278.2 million of debt outstanding at variable interest rates. If interest rates increase, so will our interest costs, which could adversely
affect our cash flow, our ability to pay principal and interest on our debt, our cost of refinancing our debt when it becomes due and our ability to pay distributions to you.
-
•
-
An increase in interest rates could decrease the amount buyers may be willing to pay for our properties, thereby reducing
the market value of our properties and limiting our ability to sell properties or to obtain mortgage financing secured by our properties.
-
•
-
We expect to pay regular distributions on our shares. When interest rates on investments available to investors rise, the
market prices of distribution paying securities often decline. Accordingly, if interest rates rise, the market price of your shares may decline.
Changes in the government's requirements for leased space may adversely affect us.
Approximately 5% of our total rents pursuant to signed leases as of December 31, 2009, come from government tenants. Including
rents from properties which we continue to own and our 46.3% ownership of GOV as of December 31, 2009, approximately 9% of our total rents pursuant to signed leases as of December 31,
2009, were directly or indirectly from governments. Many of our leases with government agencies allow the tenants to vacate the leased premises before the stated term expires with little or no
liability. Historically, our government tenants have only rarely exercised lease termination rights and have regularly renewed leases. Nonetheless, for fiscal policy reasons, security
35
Table of Contents
concerns
or otherwise, some or all of our government tenants may decide to vacate our properties. If a significant number of such terminations occur, our income and cash flow may materially decline
and our ability to pay regular distributions to shareholders may be jeopardized.
Our acquisitions may not be successful.
Our business strategy contemplates acquisitions of additional properties. We cannot assure you that acquisitions we make will prove to
be successful. We might encounter unanticipated difficulties and expenditures relating to any acquired properties. Newly acquired properties might require significant management attention that would
otherwise be devoted to our ongoing business. We might never realize the anticipated benefits of our acquisitions. Notwithstanding pre-acquisition due diligence, we do not believe that it
is possible to fully understand a property before it is owned and operated for an extended period of time. For example, we could acquire a property that contains undisclosed defects in design or
construction. In addition, after our acquisition of a property, the market in which the acquired property is located may experience unexpected changes that adversely affect the property's value. Also,
property operating costs for acquisitions may be higher than we anticipate and acquisitions of properties may not yield the returns we expect and, if financed using debt or new equity issuances, may
result in shareholder dilution. For these reasons, among others, our property acquisitions may cause us to experience losses.
Acquisition and ownership of real estate is subject to environmental and climate change risks.
Acquisition and ownership of real estate is subject to risks associated with environmental hazards. We may be liable for environmental
hazards at our properties, including those created by prior owners or occupants, existing tenants, abutters or other persons. Our properties may be subject to environmental laws for certain hazardous
substances used to maintain these properties, such as chemicals used to clean, pesticides and lawn maintenance materials, and for other conditions, such as the presence of harmful mold. Various
federal and state laws impose environmental liabilities upon property owners, such as us, for any environmental damages arising on properties they own or occupy, and we are not assured that we will
not be held liable for environmental clean up at our properties, including environmental damages at sites we own and lease to our tenants. As an owner or previous owner of properties which contain
environmental hazards, we also may be liable to pay damages to governmental agencies or third parties for costs and damages they incur arising from environmental hazards at the properties. Moreover,
the costs and damages which may arise from environmental hazards are often difficult to project.
The
current political debate about climate change has resulted in various treaties, laws and regulations which are intended to limit carbon emissions. We believe these laws being enacted
or proposed may cause energy costs at our properties to increase, but we do not expect the direct impact of these increases to be material to our results of operations because the increased costs
either would be the responsibility of our tenants directly or in large part may be passed through by us to our tenants as additional lease payments. Although we do not believe it is likely in the
foreseeable future, laws enacted to mitigate climate change may make some of our buildings obsolete or cause us to make material investments in our properties which could materially and adversely
affect our financial condition.
Real estate ownership creates risks and liabilities.
Our business is subject to risks associated with real estate ownership, including:
-
•
-
increased supply of similar properties in our markets;
-
•
-
property and casualty losses, some of which may be uninsured;
36
Table of Contents
-
•
-
defaults and bankruptcies by our tenants;
-
•
-
the illiquid nature of real estate markets, which limits our ability to sell our assets rapidly to respond to changing
market conditions;
-
•
-
leases which are not renewed at expiration and may be relet at lower rents;
-
•
-
costs that may be incurred relating to property maintenance and repair, and the need to make expenditures due to changes
in governmental regulations, including the Americans with Disabilities Act; and
-
•
-
asbestos/lead related liabilities and costs of containment or removal and other environmental hazards at our properties
for which we may be liable, including those created by prior owners or occupants, existing tenants, adjacent properties or other parties.
We have substantial debt obligations and may incur additional debt.
As of December 31, 2009, we had $3.0 billion in debt outstanding, which was 50.9% of our total book capitalization. Our
note indenture and revolving credit facility permit us and our subsidiaries to incur additional debt, including secured debt. If we default in paying any of our debts or honoring our debt covenants,
it may create one or more cross defaults, our debts may be accelerated and we could be forced to liquidate our assets for less than the values we would receive in a more orderly process.
Risks Related to Our Organization and Structure
Ownership limitations and anti-takeover provisions in our declaration of trust, bylaws and rights agreement, as well as certain provisions of Maryland law, may
prevent shareholders from receiving a takeover premium or implementing changes.
Our declaration of trust or bylaws prohibit any shareholder other than RMR and its affiliates from owning more than 9.8% of any class
or series of our outstanding shares. These provisions may assist with our REIT compliance under the IRC. However, these provisions may also inhibit acquisitions of a significant stake in us and may
prevent a change in our control. Additionally, many provisions contained in our declaration of trust and bylaws and under Maryland law may further deter persons from attempting to acquire control of
us and implement changes that may be considered beneficial by some shareholders, including, for example, provisions relating to:
-
•
-
the division of our trustees into three classes, with the term of one class expiring each year and, in each case, until a
successor is elected and qualifies, which could delay a change in our control;
-
•
-
required qualifications for an individual to serve as a trustee and a requirement that certain of our trustees be
"Managing Trustees" and other trustees be "Independent Trustees";
-
•
-
limitations on the ability of shareholders to propose nominees for election as trustees and propose other business for a
meeting of shareholders;
-
•
-
the two-thirds shareholder vote required for removal of trustees;
-
•
-
the authority of our Board of Trustees, and not our shareholders, to adopt, amend or repeal our bylaws;
-
•
-
the fact that only the chief executive officer, a majority of the Independent Trustees, the Board of Trustees or the
holders of a majority of our shares entitled to vote at such meeting may call shareholder meetings; and
-
•
-
the authority of our Board of Trustees to adopt certain amendments to our declaration of trust without shareholder
approval, including the authority to increase or decrease the aggregate
37
Table of Contents
number
of authorized shares, to create new classes or series of shares (including a class or series of shares that could delay or prevent a transaction or a change in our control that might involve a
premium for our shares or otherwise be in the best interests of our shareholders), to increase or decrease the authorized number of shares of any class or series, and to classify or reclassify any
unissued shares from time to time by setting or changing the preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or
conditions of redemption of our shares or any new class of shares created by our Board of Trustees.
We
maintain a rights agreement whereby, in the event a person or group of persons acquires 10% or more of our outstanding common shares, our shareholders, other than such person or
group, will be entitled to purchase additional shares or other securities or property at a discount. In addition, certain provisions of Maryland law may have an anti-takeover effect. For
all of these reasons, our shareholders may be unable to realize a change of control premium for any of our shares they own.
We may change our operational and investment policies without shareholder approval.
Our Board of Trustees determines our operational and investment policies and may amend or revise our policies, including our policies
with respect to our intention to qualify for taxation as a REIT, acquisitions, dispositions, growth, operations, indebtedness, capitalization and distributions, or approve transactions that deviate
from these policies, without a vote of, or notice to, our shareholders. Such policy changes could adversely affect the market value of our shares and our ability to make distributions to you.
Our rights and the rights of our shareholders to take action against our trustees and officers are limited.
Our declaration of trust limits the liability of our trustees and officers to us and our shareholders for money damages to the maximum
extent permitted under Maryland law. Under current Maryland law, our trustees and officers will not have any liability to us and our shareholders for money damages other than liability resulting
from:
-
•
-
actual receipt of an improper benefit or profit in money, property or services; or
-
•
-
active and deliberate dishonesty by the trustee or officer that was established by a final judgment as being material to
the cause of action adjudicated.
Our
declaration of trust requires us to indemnify our trustees and officers for actions taken by them in those capacities to the maximum extent required or permitted by Maryland law. We
have similar obligations under individual indemnification agreements with each of our trustees and executive officers. In addition, we may be obligated to pay or reimburse the expenses incurred by our
present and former trustees and officers without requiring a preliminary determination of their ultimate entitlement to indemnification. As a result, we and our shareholders may have more limited
rights against our present and former trustees and officers than might otherwise exist absent the provisions in our declaration of trust or that might exist with other companies, which could limit
your recourse in the event of actions not in your best interest.
Disputes with GOV, SNH and RMR and shareholder litigation against us or our trustees and officers may be referred to arbitration proceedings.
Certain of our contracts with GOV, SNH and RMR provide that any dispute arising under those contracts may be referred to binding
arbitration proceedings. Similarly, our bylaws provide that actions by our shareholders against us or against our trustees and officers may be referred to binding arbitration proceedings. As a result,
we and our shareholders would not be able to pursue litigation for
38
Table of Contents
these
disputes in courts against GOV, SNH, RMR or our trustees and officers if the disputes were referred to arbitration. In addition, the ability to collect attorneys' fees or other damages may be
limited in the arbitration proceedings, which may discourage attorneys from agreeing to represent parties wishing to commence such a proceeding.
Risks Related to Our Taxation
The loss of our tax status as a REIT for U.S. federal income tax purposes could have significant adverse consequences.
As a REIT, we generally do not pay federal and state income taxes. However, our continued qualification as a REIT depends on satisfying
complex statutory requirements, for which there are only limited judicial and administrative interpretations. We believe we have operated, and are operating, as a REIT in compliance with the IRC.
However, we cannot be certain that, upon review or audit, the IRS will agree with this conclusion. If we cease to be a REIT, then our ability to raise capital might be adversely affected, we will be
in breach under our revolving credit facility, we may be subject to material amounts of federal and state income taxes and the value of our securities likely would decline. In addition, if we lose or
revoke our tax status as a REIT for a taxable year, we will generally be prevented from requalifying as a REIT for the next four taxable years.
Distributions to shareholders generally will not qualify for reduced tax rates.
The maximum tax rate for dividends payable by U.S. corporations to individual stockholders is 15% through 2010. Distributions paid by
REITs, however, are generally not eligible for this reduced rate. The more favorable rates for corporate dividends could cause investors to perceive that investment in REITs is less attractive than
investment in non-REIT entities that pay dividends, thereby reducing the demand and market price of our shares.
Risks Related to Our Relationship with RMR
Our management structure and our manager's other activities may create conflicts of interest.
We have no employees. Personnel and services that we require are provided to us under contract by RMR. RMR is authorized to follow
broad operating and investment guidelines and, therefore, has great latitude in determining the properties that will be proper investments for us, as well as our individual investment decisions. Our
Board of Trustees periodically reviews our operating and investment guidelines and our properties but does not review or approve each decision made by RMR on our behalf. In addition, in conducting
periodic reviews, our Board of Trustees relies primarily on information provided to it by RMR. RMR is beneficially owned by our Managing Trustees, Barry Portnoy and Adam Portnoy. Barry Portnoy is
Chairman and a director, and Adam Portnoy is President, Chief Executive Officer and a director, of RMR. All of the members of our Board of Trustees, including our Independent Trustees, are members of
one or more boards of trustees or directors of other companies managed by RMR. All of our executive officers are also executive officers of RMR. The foregoing individuals may hold equity in or
positions with other companies managed by RMR. Such equity ownership and positions by our trustees and officers could create, or appear to create, conflicts of interest with respect to matters
involving us, RMR and its affiliates.
RMR
also acts as the manager for three other publicly traded REITs: SNH, which owns senior living properties and medical office buildings; HPT, which owns hotels and travel centers; and
GOV, which owns properties that are majority leased to government tenants. RMR also provides management services to other public and private companies, including Five Star, which operates senior
living communities, including independent living and congregate care communities, assisted living communities, nursing homes and hospitals, and TA, which operates and franchises travel centers. These
39
Table of Contents
multiple
responsibilities to public companies and RMR's other businesses could create competition for the time and efforts of RMR and Messrs. Barry Portnoy and Adam Portnoy.
Our management agreements with RMR were negotiated between affiliated parties and may not be as favorable to us as they would have been if negotiated between unaffiliated
parties.
We pay RMR business management fees based upon the historical cost of our investments (including acquisition costs) which at any time
may be more or less than the fair market value thereof, plus an incentive fee based upon increases in our funds from operations, as defined in our business management agreement with RMR. We also pay
RMR property management fees based in part upon the gross rents we collect from tenants and the cost of construction we incur. For more information, see "Item 1. Business—Manager."
Our fee arrangements with RMR could encourage RMR to advocate acquisitions of properties, to undertake unnecessary construction activities or to overpay for acquisitions or construction. These
arrangements may also encourage RMR to discourage sales of properties by us. Our management agreements were negotiated between affiliated parties, and the terms, including the fees payable to RMR, may
not be as favorable to us as they would have been were they negotiated on an arm's length basis between unaffiliated parties.
Our management agreements with RMR may discourage our change of control.
Termination of our management agreements with RMR would be a default under our revolving credit facility unless approved by a majority
of our lenders. The quality and depth of management available to us by contracting with RMR may not be able to be duplicated by our being a self managed company or by our contracting with unrelated
third parties, without considerable cost increases. For these reasons, our management agreements may discourage a change of control of us.
The potential for conflicts of interest as a result of our management structure may provoke dissident shareholder activities that result in significant costs.
In the past, in particular following periods of volatility in the overall market and the market price of a company's securities,
shareholder litigation, dissident trustee nominations and dissident proposals have often been instituted against companies alleging conflicts of interest in business dealings with trustees, affiliated
persons and entities. Our relationship with RMR, with Messrs. Barry Portnoy and Adam Portnoy and with RMR affiliates may precipitate such activities. These activities, if instituted against us,
could result in substantial costs and a diversion of our management's attention and resources.
We depend upon RMR to manage our business and implement our growth strategy.
Our ability to achieve our business objectives depends on RMR and its ability to manage our properties, source and complete new
acquisitions for us on favorable terms and to execute our financing strategy on favorable terms. Because we are externally managed, our business is dependent upon RMR's business contacts, its ability
to successfully hire, train, supervise and manage its personnel and its ability to maintain its operating systems. If we lose the services provided by RMR or its key personnel, our business and growth
prospects may decline. We may be unable to duplicate the quality and depth of management available to us by becoming a self managed company or by hiring another manager. Also, in the event RMR is
unwilling or unable to continue to provide management services to us, our cost of obtaining substitute services may be greater than the management fees we pay RMR, and as a result our earnings and
cash flows may decline.
40
Table of Contents
Provisions in RMR's management agreements with us and with other entities managed by RMR and in transaction agreements between us and certain of those entities may restrict
our investing activities and create conflicts of interest.
RMR's management agreements with us and with other entities managed by RMR restrict our ability to make investments in properties that
are within the investment focus of another business now or in the future managed by RMR. In addition, RMR has discretion to determine whether a particular investment opportunity is within our
investment focus or that of another business managed by RMR. In addition, our transaction agreements with SNH and GOV have restrictions on our right to make investments in properties that are within
the investment focus of those other businesses. As a result of these contractual provisions, we have limited ability to invest in
properties that are within the investment focus of other businesses managed by RMR. These agreements do not restrict our ability, or the ability of other businesses managed by RMR, to lease properties
to any particular tenant, and, as a result, we may compete with other businesses managed by RMR for tenants. Our management agreements afford RMR discretion to determine which leasing opportunities to
present to us or to other businesses managed by RMR. Accordingly, we may compete with other businesses managed by RMR for investments in properties that are not within the investment focus of us or
another business managed by RMR and for tenants. There is no assurance that any conflicts of interest created by such competition will be resolved in our favor.
Risks Related to Our Securities
Any notes we may issue will be effectively subordinated to the debts of our subsidiaries and to our secured debt.
We conduct substantially all of our business through, and substantially all of our properties are owned by, subsidiaries. Consequently,
our ability to pay debt service on our outstanding notes and any notes we issue in the future will be dependent upon the cash flow of our subsidiaries and payments by those subsidiaries to us as
dividends or otherwise. Our subsidiaries are separate legal entities and have their own liabilities. Payments due on our outstanding notes, and any notes we may issue, are, or will be, effectively
subordinated to liabilities of our subsidiaries, including guaranty liabilities. Substantially all of our subsidiaries have guaranteed our revolving credit facility; none of our subsidiaries guaranty
our outstanding notes. In addition, as of December 31, 2009, our subsidiaries had $624.2 million of secured debt. Our outstanding notes are, and any notes we may issue will be,
effectively subordinated to any secured debt with regard to our assets pledged to secure those debts.
Our notes may permit redemption before maturity, and our noteholders may be unable to reinvest proceeds at the same or a higher rate.
The terms of our notes may permit us to redeem all or a portion of our outstanding notes after a certain amount of time, or up to a
certain percentage of the notes prior to certain dates. Generally, the redemption price will equal the principal amount being redeemed, plus accrued interest to the redemption date, plus any
applicable premium. If a redemption occurs, our noteholders may be unable to reinvest the money they receive in the redemption at a rate that is equal to or higher than the rate of return on the
applicable notes.
There may be no public market for notes we may issue and one may not develop.
Generally, any notes we may issue will be a new issue for which no trading market currently exists. We may not list our notes on any
securities exchange or seek approval for price quotations to be made available through any automated quotation system. There is no assurance that an active trading market for any of our notes will
exist in the future. Even if a market develops, the liquidity of the trading market for any of our notes and the market price quoted for any such notes may be adversely affected
41
Table of Contents
by
changes in the overall market for fixed income securities, by changes in our financial performance or prospects, or by changes in the prospects for REITs or for the real estate industry generally.
Also, we have repurchased and retired $109.5 million face amount of our outstanding notes. These purchases reduced the number and amount of our notes outstanding and may decrease the liquidity
of our notes.
Conversion of our series D preferred shares will dilute the ownership interests of existing shareholders.
The conversion of some or all of our series D preferred shares, including a conversion upon exercise of a "fundamental change"
(as such term is defined in the applicable articles supplementary), will dilute the ownership interests of existing shareholders. Any sales in the public market of the common shares issuable upon such
conversion could adversely affect prevailing market prices of our common shares. In addition, the existence of the series D preferred shares may encourage short selling by market participants
because the conversion of the series D preferred shares could depress the price of our common shares or for other reasons.
There is no assurance that we will continue to make distributions.
We intend to continue to pay regular quarterly distributions to our shareholders. However:
-
•
-
our ability to pay distributions will be adversely affected if any of the risks described herein occur;
-
•
-
our payment of distributions is subject to compliance with restrictions contained in our revolving credit facility and our
debt indenture; and
-
•
-
any distributions will be made in the discretion of our Board of Trustees and will depend upon various factors that our
Board of Trustees deems relevant, including our financial condition, maintenance of our REIT tax status, and our ability to access capital. Applicable federal income tax law permits us to defer for
tax purposes gains we realized in 2009 or may realize in 2010 as a result of early extinguishment of debt. As a result, differences between our income for financial reporting purposes and for
applicable federal income tax purposes may affect the determination of our common share distributions. Also, through 2011, IRS rulings have expanded the ability of REITs to pay distributions in
shares. There are no assurances of our ability to pay distributions or regarding the form of distributions in the future. In addition, our distributions in the past have included, and may in the
future include, a return of capital.
For
these reasons, among others, our distribution rate may decline or we may cease making distributions.
Rating agency downgrades may increase our cost of capital.
Both our senior notes and our preferred stock are rated by Moody's Investors' Service and Standard & Poor's Ratings Services.
These rating agencies may elect to downgrade their ratings on our senior notes and our preferred stock at any time. Such downgrades may negatively affect our access to the capital markets and increase
our cost of capital, including the interest rate and fees payable under our revolving credit facility.
Item 1B. Unresolved Staff Comments.
None.
42
Table of Contents
Item 2. Properties.
General.
At December 31, 2009, we had real estate investments totaling approximately $6.3 billion in 518 properties,
excluding
properties classified as held for sale, that were leased to over 2,000 tenants. Our properties are located in both suburban and central business district, or CBD, areas. We have concentrations of
properties in four major geographic segments: Metro Philadelphia, PA; Oahu, HI; Metro Washington, DC and Metro Boston, MA. For further information by geographic segment, see Note 9 to our consolidated
financial statements included in Item 15. "Exhibits and Financial Statement Schedules" of this Annual Report on Form 10-K.
The
states in which we owned real estate at December 31, 2009, excluding properties held for sale, were as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
|
Number of
Properties
|
|
Investment
Amount
(1)
|
|
Net Book Value
(1)
|
|
Rent
(2)
|
|
|
Alabama
|
|
|
2
|
|
$
|
34,995
|
|
$
|
32,969
|
|
$
|
4,283
|
|
|
Arizona
|
|
|
9
|
|
|
114,950
|
|
|
91,884
|
|
|
17,441
|
|
|
Arkansas
|
|
|
1
|
|
|
11,876
|
|
|
11,138
|
|
|
—
|
|
|
California
|
|
|
44
|
|
|
328,635
|
|
|
272,131
|
|
|
51,616
|
|
|
Colorado
|
|
|
7
|
|
|
231,104
|
|
|
210,104
|
|
|
35,688
|
|
|
Connecticut
|
|
|
19
|
|
|
155,734
|
|
|
139,627
|
|
|
18,998
|
|
|
Delaware
|
|
|
2
|
|
|
69,930
|
|
|
52,067
|
|
|
5,931
|
|
|
District of Columbia
|
|
|
4
|
|
|
162,123
|
|
|
134,836
|
|
|
20,484
|
|
|
Florida
|
|
|
2
|
|
|
48,065
|
|
|
46,417
|
|
|
6,953
|
|
|
Georgia
|
|
|
43
|
|
|
261,549
|
|
|
233,434
|
|
|
30,569
|
|
|
Hawaii
|
|
|
57
|
|
|
645,519
|
|
|
639,085
|
|
|
74,367
|
|
|
Illinois
|
|
|
7
|
|
|
141,899
|
|
|
129,800
|
|
|
20,445
|
|
|
Indiana
|
|
|
4
|
|
|
94,134
|
|
|
84,749
|
|
|
13,992
|
|
|
Iowa
|
|
|
2
|
|
|
21,628
|
|
|
20,702
|
|
|
1,360
|
|
|
Kansas
|
|
|
42
|
|
|
127,033
|
|
|
121,390
|
|
|
19,667
|
|
|
Kentucky
|
|
|
1
|
|
|
11,981
|
|
|
10,231
|
|
|
1,254
|
|
|
Maryland
|
|
|
10
|
|
|
325,649
|
|
|
267,297
|
|
|
46,330
|
|
|
Massachusetts
|
|
|
19
|
|
|
326,551
|
|
|
266,132
|
|
|
49,892
|
|
|
Michigan
|
|
|
18
|
|
|
66,899
|
|
|
57,203
|
|
|
10,685
|
|
|
Minnesota
|
|
|
14
|
|
|
155,530
|
|
|
120,376
|
|
|
19,174
|
|
|
Missouri
|
|
|
7
|
|
|
57,635
|
|
|
52,379
|
|
|
9,323
|
|
|
New Hampshire
|
|
|
1
|
|
|
22,170
|
|
|
16,868
|
|
|
2,501
|
|
|
New Jersey
|
|
|
5
|
|
|
168,379
|
|
|
158,279
|
|
|
29,267
|
|
|
New Mexico
|
|
|
16
|
|
|
112,783
|
|
|
93,550
|
|
|
18,460
|
|
|
New York
|
|
|
49
|
|
|
356,567
|
|
|
306,267
|
|
|
52,660
|
|
|
North Carolina
|
|
|
1
|
|
|
9,432
|
|
|
8,951
|
|
|
744
|
|
|
Ohio
|
|
|
23
|
|
|
212,092
|
|
|
196,746
|
|
|
31,436
|
|
|
Oklahoma
|
|
|
1
|
|
|
25,828
|
|
|
18,916
|
|
|
1,994
|
|
|
Pennsylvania
|
|
|
36
|
|
|
1,079,860
|
|
|
844,193
|
|
|
153,387
|
|
|
South Carolina
|
|
|
14
|
|
|
84,281
|
|
|
78,140
|
|
|
9,949
|
|
|
Tennessee
|
|
|
4
|
|
|
76,901
|
|
|
65,764
|
|
|
9,904
|
|
|
Texas
|
|
|
28
|
|
|
416,159
|
|
|
319,628
|
|
|
48,827
|
|
|
Virginia
|
|
|
7
|
|
|
84,912
|
|
|
68,002
|
|
|
12,218
|
|
|
Washington
|
|
|
17
|
|
|
213,452
|
|
|
205,465
|
|
|
29,775
|
|
|
Wisconsin
|
|
|
2
|
|
|
67,446
|
|
|
64,540
|
|
|
10,760
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total real estate
|
|
|
518
|
|
$
|
6,323,681
|
|
$
|
5,439,260
|
|
$
|
870,334
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Excludes
purchase price allocations for acquired real estate leases.
43
Table of Contents
-
(2)
-
Rent
is pursuant to signed leases as of December 31, 2009, plus estimated expense reimbursements; includes some triple net lease rents
and excludes lease value amortization. Excludes properties classified in discontinued operations.
At
December 31, 2009, 29 properties with an aggregate cost of $1,164.2 million were encumbered by mortgage notes payable totaling $624.2 million.
Item 3. Legal Proceedings.
On August 14, 2009, we commenced litigation in the U.S. District Court for the District of Hawaii to declare Hawaii state
legislation which seeks to limit rent increases at certain of our leased industrial and commercial lands in Hawaii to be in violation of the United States Constitution. On December 22, 2009,
the court denied all parties' motions for summary judgment, and invited all parties to the litigation to conduct discovery. We have conducted some discovery and recently filed a renewal motion for
summary judgment. We expect the State and certain intervener defendants may file cross motions for summary judgment. Although we expect this case may be decided in the near future, we have no
assurance to when this case may be decided or whether an appeal may be pursued by the defendants or us after it is decided.
In
the ordinary course of business we are involved in litigation incidental to our business; however, other than the litigation in Hawaii discussed above, we are not aware of any pending
legal proceeding affecting us or any of our properties for which we might become liable or the outcome of which we expect to have a material impact on us.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
PART II
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Our common shares are traded on the NYSE (symbol: HRP). The following table sets forth for the periods indicated the high and low sale
prices for our common shares as reported by the NYSE composite transactions reports:
|
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
8.56
|
|
$
|
6.58
|
|
|
|
Second Quarter
|
|
|
8.00
|
|
|
6.75
|
|
|
|
Third Quarter
|
|
|
8.33
|
|
|
6.43
|
|
|
|
Fourth Quarter
|
|
|
6.98
|
|
|
1.57
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
4.19
|
|
$
|
2.48
|
|
|
|
Second Quarter
|
|
|
5.13
|
|
|
3.00
|
|
|
|
Third Quarter
|
|
|
8.13
|
|
|
3.95
|
|
|
|
Fourth Quarter
|
|
|
7.55
|
|
|
6.04
|
|
The
closing price of our common shares on the NYSE on February 18, 2010, was $7.05 per share.
As
of February 18, 2010, there were approximately 2,600 shareholders of record, and we estimate that as of such date there were in excess of 72,800 beneficial owners of our common
shares.
44
Table of Contents
In
January 2009, we announced a new quarterly common share dividend rate of $0.12 per share ($0.48 per share per year). Information about distributions paid to common shareholders is
summarized in the table below. Common share distributions are generally paid in the quarter following the quarter to which they relate.
|
|
|
|
|
|
|
|
|
|
|
|
Cash Distributions
Per Common Share
|
|
|
|
2008
|
|
2009
|
|
|
First Quarter
|
|
$
|
0.21
|
|
$
|
0.12
|
|
|
Second Quarter
|
|
|
0.21
|
|
|
0.12
|
|
|
Third Quarter
|
|
|
0.21
|
|
|
0.12
|
|
|
Fourth Quarter
|
|
|
0.21
|
|
|
0.12
|
(1)
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
0.84
|
|
$
|
0.48
|
|
|
|
|
|
|
|
|
-
(1)
-
Excludes
$0.12 per common share distribution which was declared on December 11, 2009, and paid on January 29, 2010, to
shareholders of record as of the close of business on December 21, 2009.
All
common share distributions shown in the table above have been paid in cash. We currently intend to continue to declare and pay common share distributions on a quarterly basis in
cash. However, the amount and form of distributions are made at the discretion of our Board of Trustees and depend on our earnings, cash available for distribution, financial condition, capital market
conditions, growth prospects and other factors which our Board of Trustees deems relevant. Therefore, there can be no assurance that we will continue to pay distributions in the future in cash or that
the amount of any distributions we do pay will not decrease.
45
Table of Contents
Item 6. Selected Financial Data.
The following table sets forth selected financial data for the periods and dates indicated. This data should be read in conjunction
with, and is qualified in its entirety by reference to, Item 7. "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the consolidated financial statements
and accompanying notes included in Item 15. "Exhibits and Financial Statement Schedules" of this Annual Report on Form 10-K. Amounts are in thousands, except per share data.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Income Statement Data
|
|
2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
|
Total revenues
|
|
$
|
849,722
|
|
$
|
835,855
|
|
$
|
783,671
|
|
$
|
744,413
|
|
$
|
655,730
|
|
|
Income from continuing operations
|
|
|
76,666
|
|
|
83,559
|
|
|
94,626
|
|
|
222,215
|
|
|
127,528
|
|
|
Net income
(1)
|
|
|
164,674
|
|
|
244,645
|
|
|
124,255
|
|
|
250,580
|
|
|
164,984
|
|
|
Net income available for common shareholders
(2)
|
|
|
114,006
|
|
|
193,977
|
|
|
59,453
|
|
|
198,974
|
|
|
118,984
|
|
|
Common distributions declared
|
|
|
134,741
|
|
|
190,302
|
|
|
136,239
|
|
|
220,481
|
|
|
172,065
|
|
|
Weighted average common shares outstanding—basic
|
|
|
224,220
|
|
|
226,468
|
|
|
214,361
|
|
|
209,965
|
|
|
197,831
|
|
|
Weighted average common shares outstanding—diluted
|
|
|
253,413
|
|
|
255,661
|
|
|
243,554
|
|
|
216,524
|
|
|
197,831
|
|
|
Earnings per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations available for common shareholders—basic and diluted
|
|
$
|
0.12
|
|
$
|
0.15
|
|
$
|
0.14
|
|
$
|
0.81
|
|
$
|
0.41
|
|
|
|
Net income available for common shareholders—basic
(2)
|
|
$
|
0.51
|
|
|
0.86
|
|
|
0.28
|
|
|
0.95
|
|
|
0.60
|
|
|
|
Net income available for common shareholders—diluted
(2)
|
|
$
|
0.51
|
|
|
0.86
|
|
|
0.28
|
|
|
0.94
|
|
|
0.60
|
|
|
Common distributions declared
|
|
$
|
0.60
|
(3)
|
|
0.84
|
|
|
0.63
|
|
|
1.05
|
|
|
0.84
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
Balance Sheet Data
|
|
2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
|
Real estate properties
(4)
|
|
$
|
6,323,681
|
|
$
|
6,242,257
|
|
$
|
6,156,294
|
|
$
|
5,762,273
|
|
$
|
5,224,574
|
|
|
Equity investments
|
|
|
158,822
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
194,297
|
|
|
Total assets
|
|
|
6,121,321
|
|
|
6,016,099
|
|
|
5,859,332
|
|
|
5,575,949
|
|
|
5,327,167
|
|
|
Total indebtedness, net
|
|
|
2,992,650
|
|
|
2,889,918
|
|
|
2,774,160
|
|
|
2,397,231
|
|
|
2,520,156
|
|
|
Total shareholders' equity
|
|
|
2,889,066
|
|
|
2,921,112
|
|
|
2,902,883
|
|
|
2,950,768
|
|
|
2,645,486
|
|
-
(1)
-
Changes
in net income result from property acquisitions during all periods presented, the contribution of 29 properties to GOV during 2009,
gains of $99.8 million recognized in 2009 from the sale of properties and extinguishment of debt, losses of $31.9 million recognized in 2009 from asset impairment, gains of
$137.2 million recognized in 2008 from the sale of properties, gains of $116.3 million recognized in 2006 from the sale of all 7.7 million SNH common shares and 4.0 million
HPT common shares we owned and gains of $11.8 million recognized in 2005 from equity transactions of equity investments and the sale of 950,000 of our SNH common shares.
-
(2)
-
Net
income available for common shareholders is net income reduced by preferred distributions and the excess redemption price paid over the
carrying value of preferred shares.
-
(3)
-
Includes
$0.12 per common share distribution which was declared on December 11, 2009, and paid on January 29, 2010, to
shareholders of record as of the close of business on December 21, 2009.
-
(4)
-
Excludes
value of acquired real estate leases.
46
Table of Contents
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.
The following information should be read in conjunction with our consolidated financial statements and accompanying notes included
elsewhere in this Annual Report on Form 10-K.
OVERVIEW
We primarily own office and industrial buildings located throughout the United States. We also own 17.9 million square feet of
leased industrial and commercial lands located in Oahu, Hawaii.
Property Operations
As of December 31, 2009, 87.4% of our total square feet was leased, compared to 90.4% leased as of December 31, 2008.
These results reflect a 3.2 percentage point decrease in occupancy at properties we owned continuously since January 1, 2008. Occupancy data for 2009 and 2008 is as follows (square feet
in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Properties
(1)
|
|
Comparable Properties
(2)
|
|
|
|
As of the Year Ended
December 31,
|
|
As of the Year Ended
December 31,
|
|
|
|
2009
|
|
2008
|
|
2009
|
|
2008
|
|
|
Total properties
|
|
|
518
|
|
|
538
|
|
|
453
|
|
|
453
|
|
|
Total square feet
|
|
|
66,838
|
|
|
66,897
|
|
|
58,774
|
|
|
58,774
|
|
|
Percent leased
(3)
|
|
|
87.4%
|
|
|
90.4%
|
|
|
86.8%
|
|
|
90.0%
|
|
-
(1)
-
Excludes
properties sold or under contract for sale as of December 31, 2009.
-
(2)
-
Based
on properties owned continuously since January 1, 2008, and excludes properties sold or under contract for sale as of
December 31, 2009.
-
(3)
-
Percent
leased includes (i) space being fitted out for occupancy pursuant to signed leases and (ii) space which is leased, but
is not occupied or is being offered for sublease by tenants.
During
the year ended December 31, 2009, we signed lease renewals for 3.2 million square feet and new leases for 1.5 million square feet, at weighted average rental
rates that were 2% above rents previously charged for the same space. Average lease terms for leases signed during 2009 were 5.9 years. Commitments for tenant improvement and leasing costs for
leases signed during 2009 totaled $45.0 million, or $9.64 per square foot (approximately $1.63/sq. ft. per year of the lease term).
During
the past twelve months, leasing market conditions in the majority of our markets have continued to weaken. The amount of leasing activity within our portfolio has slowed and
completion of newly constructed office properties in certain markets has continued, causing our occupancy to decline. Required landlord funded tenant build outs and leasing commissions payable to
tenant brokers for new leases and lease renewals have increased in certain markets since the second half of 2008. These build out costs and leasing commissions are generally amortized as a reduction
of our income during the terms of the affected leases. Also, some tenants and prospective tenants have demonstrated reluctance to enter lease renewals or new leases for extended terms. We believe that
the current high unemployment rate and weak leasing market conditions in the U.S. may lead to a continued decrease in occupancy and effective rents at our properties through 2010 but that our
occupancy should stabilize in the second half of 2010 and may begin to improve in 2011. However, there are too many variables for us to reasonably project what the financial impact of market
conditions will be on our occupancy or financial results for future periods.
We
review all of our long lived assets used in operations for possible impairments following the end of each quarter and when there is an event or change in circumstances that indicates
an impairment in value may have occurred. During the fourth quarter of 2009, we determined the carrying
47
Table of Contents
value
of eight properties exceeded their estimated fair value based on property appraisals and an analysis of property level cash flows, resulting in a $31,882 impairment charge.
Approximately
22.8% of our leased square feet and 23.8% of our rents are included in leases scheduled to expire through December 31, 2011. Lease renewals and rental rates at which
available space may be
relet in the future will depend on prevailing market conditions at that time. Lease expirations by year, as of December 31, 2009, are as follows (square feet and dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
Square
Feet
Expiring
(1)
|
|
% of
Square Feet
Expiring
|
|
Cumulative
% of Square
Feet
Expiring
|
|
Annualized
Rental
Income
Expiring
(2)
|
|
% of
Annualized
Rental
Income
Expiring
|
|
Cumulative
% of
Annualized
Rental
Income
Expiring
|
|
|
2010
|
|
|
7,696
|
|
|
13.2
|
%
|
|
13.2
|
%
|
$
|
108,649
|
|
|
12.5
|
%
|
|
12.5
|
%
|
|
2011
|
|
|
5,628
|
|
|
9.6
|
%
|
|
22.8
|
%
|
|
98,237
|
|
|
11.3
|
%
|
|
23.8
|
%
|
|
2012
|
|
|
5,056
|
|
|
8.7
|
%
|
|
31.5
|
%
|
|
95,923
|
|
|
11.0
|
%
|
|
34.8
|
%
|
|
2013
|
|
|
5,560
|
|
|
9.5
|
%
|
|
41.0
|
%
|
|
99,827
|
|
|
11.5
|
%
|
|
46.3
|
%
|
|
2014
|
|
|
4,218
|
|
|
7.2
|
%
|
|
48.2
|
%
|
|
72,364
|
|
|
8.3
|
%
|
|
54.6
|
%
|
|
2015
|
|
|
3,476
|
|
|
6.0
|
%
|
|
54.2
|
%
|
|
74,367
|
|
|
8.5
|
%
|
|
63.1
|
%
|
|
2016
|
|
|
2,839
|
|
|
4.9
|
%
|
|
59.1
|
%
|
|
48,373
|
|
|
5.6
|
%
|
|
68.7
|
%
|
|
2017
|
|
|
2,381
|
|
|
4.1
|
%
|
|
63.2
|
%
|
|
65,056
|
|
|
7.5
|
%
|
|
76.2
|
%
|
|
2018
|
|
|
2,072
|
|
|
3.5
|
%
|
|
66.7
|
%
|
|
48,453
|
|
|
5.6
|
%
|
|
81.8
|
%
|
|
2019
|
|
|
3,375
|
|
|
5.8
|
%
|
|
72.5
|
%
|
|
40,802
|
|
|
4.7
|
%
|
|
86.5
|
%
|
|
2020 and thereafter
|
|
|
16,094
|
|
|
27.5
|
%
|
|
100.0
|
%
|
|
118,283
|
|
|
13.5
|
%
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
58,395
|
|
|
100.0
|
%
|
|
|
|
$
|
870,334
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average remaining lease term (in years):
|
|
|
8.0
|
|
|
|
|
|
|
|
|
5.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Square
feet is pursuant to signed leases as of December 31, 2009, and includes (i) space being fitted out for occupancy and
(ii) space which is leased, but is not occupied or is being offered for sublease by tenants. Excludes properties classified in discontinued operations.
-
(2)
-
Rents
are pursuant to signed leases as of December 31, 2009, plus estimated expense reimbursements; includes some triple net lease
rents and excludes lease value amortization. Excludes properties classified in discontinued operations.
Our
principal source of funds for our operations is rents from tenants at our properties. Rents are generally received from our tenants monthly in advance, except from our government
tenants which pay
48
Table of Contents
rents
monthly in arrears. As of December 31, 2009, tenants responsible for 1% or more of our total rent were as follows (square feet in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tenant
|
|
Square
Feet
(1)
|
|
% of Total
Square Feet
(1)
|
|
% of
Rent
(2)
|
|
Expiration
|
|
|
1. U. S. Government
(3)
|
|
|
1,755
|
|
|
3.0
|
%
|
|
5.3
|
%
|
|
2010 to 2024
|
|
|
2. Expedia, Inc.
|
|
|
349
|
|
|
0.6
|
%
|
|
2.0
|
%
|
|
2018
|
|
|
3. PNC Financial Services Group
|
|
|
672
|
|
|
1.2
|
%
|
|
1.9
|
%
|
|
2011 to 2021
|
|
|
4. John Wiley & Sons, Inc.
|
|
|
342
|
|
|
0.6
|
%
|
|
1.8
|
%
|
|
2017
|
|
|
5. GlaxoSmithKline plc
|
|
|
608
|
|
|
1.0
|
%
|
|
1.7
|
%
|
|
2013
|
|
|
6. Jones Day
|
|
|
407
|
|
|
0.7
|
%
|
|
1.3
|
%
|
|
2012, 2019
|
|
|
7. Wells Fargo Bank
|
|
|
390
|
|
|
0.7
|
%
|
|
1.2
|
%
|
|
2010 to 2017
|
|
|
8. Ballard Spahr Andrews & Ingersoll, LLP
|
|
|
269
|
|
|
0.5
|
%
|
|
1.1
|
%
|
|
2010, 2012, 2015
|
|
|
9. Flextronics International Ltd.
|
|
|
894
|
|
|
1.5
|
%
|
|
1.1
|
%
|
|
2014
|
|
|
10. ING
|
|
|
410
|
|
|
0.7
|
%
|
|
1.1
|
%
|
|
2011, 2018
|
|
|
11. JDA Software Group, Inc.
|
|
|
283
|
|
|
0.5
|
%
|
|
1.1
|
%
|
|
2012
|
|
|
12. The Bank of New York Mellon Corp.
|
|
|
350
|
|
|
0.6
|
%
|
|
1.1
|
%
|
|
2011, 2012,
2015, 2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,729
|
|
|
11.6
|
%
|
|
20.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Square
feet is pursuant to signed leases as of December 31, 2009, and includes (i) space being fitted out for occupancy and
(ii) space which is leased, but is not occupied or is being offered for sublease by tenants. Excludes properties classified in discontinued operations.
-
(2)
-
Rent
is pursuant to signed leases as of December 31, 2009, plus estimated expense reimbursements; includes some triple net lease rents
and excludes lease value amortization. Excludes properties classified in discontinued operations.
-
(3)
-
Including
our 46.3% pro rata ownership share of GOV as of December 31, 2009: the U.S. Government represents 3,298 square feet, or 5.5%
of our total square feet, and 8.8% of our total rental income.
Investment Activities
During 2009, we acquired nine office properties with 2.2 million square feet for $564.4 million, and two industrial
properties with 983,000 square feet for $51.1 million, excluding closing costs. At the time of acquisition, these properties were 98.1% leased and at rents which yielded approximately 10.0% of
the aggregate gross purchase price, based on estimated annual net operating income, or NOI, which we define as rental income less property operating expenses on the date of closing.
In
May 2008, we entered into various purchase agreements to sell 48 medical office, clinic and biotech laboratory buildings to SNH for an aggregate purchase price of approximately
$565.0 million, excluding closing costs. In 2008 and 2009, we sold 47 of these properties containing 2.2 million square feet of space for approximately $562.0 million, excluding
closing costs, and recognized gains totaling approximately $216.3 million. The one remaining building originally included in these agreements with an allocated value of $3.0 million is
no longer subject to an agreement for sale. In addition, SNH acquired rights of first refusal from us to purchase any of 45 additional buildings (containing approximately 4.6 million square
feet of rental space) that are leased to tenants in medical related businesses which we continue to own. Both we and SNH are managed by RMR. Because we and SNH are both managed by RMR, the terms of
these transactions were negotiated and approved by special
49
Table of Contents
committees
of our and SNH's boards of trustees composed solely of Independent Trustees of each company who were not also trustees of both companies.
In
June 2008, we agreed to sell one additional property to a third party for $15.0 million, excluding closing costs. This purchase contract expired and we retained the $750,000
previously paid by the buyer when it was unable to meet its obligation to close on January 26, 2010. A new purchase contract is currently being considered which may include purchase money
financing provided by us, secured by a first mortgage on the property, and a closing date later in 2010. We can provide no assurance that we will sell this building or that this sale will be completed
in 2010.
During
2009, we invested $5.1 million in Affiliates Insurance Company, or AIC, an insurance company that is owned by RMR and companies to which RMR provides management services.
We own 14.29% of the common shares of AIC which has a carrying value of $5.0 million as of December 31, 2009.
In
March 2009, we purchased $8.0 million of marketable certificates which are backed by our mortgage notes payable due January 2011, for $6.8 million. We classify these
certificates as investments held to maturity rather than available for sale or trading because we have the intent and ability to hold these certificates until maturity. These certificates are included
in other assets in our consolidated balance sheet as of December 31, 2009. These certificates had an estimated fair market value of $7.4 million as of December 31, 2009.
Financing Activities
During 2009, we repurchased 4,050,000 of our common shares for $14.5 million, including transaction costs, using cash on hand.
During
2009, we repurchased and retired $31.8 million of our floating rate senior notes due 2011 for $24.2 million, $49.3 million of our 6.95% senior notes due 2012
for $41.5 million, $9.0 million of our 6.50% senior notes due 2013 for $7.3 million, $5.3 million of our 5.75% senior notes due 2014 for $4.3 million, and
$14.0 million of our 6.40% senior notes due 2015 for $11.0 million using cash on hand and borrowings under our revolving credit facility. In connection with these transactions, we
recognized gains totaling $20.7 million, net of unamortized deferred financing fees and note discounts.
During
April 2009, we contributed 29 properties with 3.3 million square feet, or the GOV Properties, to our then wholly owned subsidiary, GOV, a REIT that owns properties that are
majority leased to government tenants. Also in April 2009, GOV entered into a new $250.0 million secured credit facility with a group of commercial banks. The $250.0 million proceeds of
this credit facility were distributed to us and used to repay amounts outstanding under our revolving credit facility. In June 2009, GOV completed an IPO of 11,500,000 GOV common shares (including
exercise of an over-allotment option), or the GOV IPO, and became a separate public company. Simultaneous with the closing of the GOV IPO, the $250.0 million secured credit facility
ceased to be our obligation. At December 31, 2009, we owned 9,950,000, or 46.3%, of the common shares of beneficial interest of GOV with a carrying value of $153.8 million and a market
value based on quoted market prices, of $228.7 million ($22.98 per share). In January 2010, GOV completed a second public offering of 9,775,000 shares, and as a result our ownership of GOV was
reduced to 31.8%.
In
November 2009, we issued $125.0 million of unsecured senior notes in a public offering, raising net proceeds of approximately $121.5 million. These notes bear interest
at 7.50% per annum, require quarterly interest payments and mature in November 2019. In December 2009, we closed on a mortgage loan for $175.0 million with a 10 year term secured by one
of our properties located in Philadelphia, PA. Interest on this loan is payable at a spread over LIBOR but has been fixed for the first seven years with a cash flow hedge that sets the rate at
approximately 5.66% per year (excluding amortization of costs). No principal repayment is required for the first three years, after which the loan will be amortized on a 30 year direct
reduction basis until maturity in December 2019 and may be prepaid without penalty. Net proceeds from these financing transactions were used to reduce amounts outstanding under our revolving credit
facility.
50
Table of Contents
RESULTS OF OPERATIONS
Year Ended December 31, 2009, Compared to Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2009
|
|
2008
|
|
$
Change
|
|
%
Change
|
|
|
|
(in thousands, except per share data)
|
|
|
Rental income
|
|
$
|
849,722
|
|
$
|
835,855
|
|
$
|
13,867
|
|
|
1.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
356,001
|
|
|
347,968
|
|
|
8,033
|
|
|
2.3
|
%
|
|
|
|
Depreciation and amortization
|
|
|
195,681
|
|
|
185,693
|
|
|
9,988
|
|
|
5.4
|
%
|
|
|
|
General and administrative
|
|
|
39,427
|
|
|
36,828
|
|
|
2,599
|
|
|
7.1
|
%
|
|
|
|
Acquisition costs
|
|
|
4,298
|
|
|
—
|
|
|
4,298
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
595,407
|
|
|
570,489
|
|
|
24,918
|
|
|
4.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
254,315
|
|
|
265,366
|
|
|
(11,051
|
)
|
|
(4.2
|
)%
|
|
Interest income
|
|
|
1,194
|
|
|
1,442
|
|
|
(248
|
)
|
|
(17.2
|
)%
|
|
Interest expense
|
|
|
(173,458
|
)
|
|
(180,193
|
)
|
|
(6,735
|
)
|
|
(3.7
|
)%
|
|
Loss on asset impairment
|
|
|
(31,882
|
)
|
|
(2,283
|
)
|
|
29,599
|
|
|
1296.5
|
%
|
|
Gain on early extinguishment of debt
|
|
|
20,686
|
|
|
—
|
|
|
20,686
|
|
|
100.0
|
%
|
|
Equity in earnings of equity investments
|
|
|
6,546
|
|
|
—
|
|
|
6,546
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before income tax expense
|
|
|
77,401
|
|
|
84,332
|
|
|
(6,931
|
)
|
|
(8.2
|
)%
|
|
Income tax expense
|
|
|
(735
|
)
|
|
(773
|
)
|
|
(38
|
)
|
|
(4.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
76,666
|
|
|
83,559
|
|
|
(6,893
|
)
|
|
(8.2
|
)%
|
|
Discontinued operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from discontinued operations
|
|
|
8,875
|
|
|
23,912
|
|
|
(15,037
|
)
|
|
(62.9
|
)%
|
|
|
|
Gain on sale of properties
|
|
|
79,133
|
|
|
137,174
|
|
|
(58,041
|
)
|
|
(42.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
164,674
|
|
|
244,645
|
|
|
(79,971
|
)
|
|
(32.7
|
)%
|
|
Preferred distributions
|
|
|
(50,668
|
)
|
|
(50,668
|
)
|
|
—
|
|
|
—
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income available for common shareholders
|
|
$
|
114,006
|
|
$
|
193,977
|
|
$
|
(79,971
|
)
|
|
(41.2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding—basic
|
|
|
224,220
|
|
|
226,468
|
|
|
(2,248
|
)
|
|
(1.0
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding—diluted
|
|
|
253,413
|
|
|
255,661
|
|
|
(2,248
|
)
|
|
(0.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted earnings per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations available for common shareholders
|
|
$
|
0.12
|
|
$
|
0.15
|
|
$
|
(0.03
|
)
|
|
(20.0
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from discontinued operations
|
|
$
|
0.39
|
|
$
|
0.71
|
|
$
|
(0.32
|
)
|
|
(45.1
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income available for common shareholders
|
|
$
|
0.51
|
|
$
|
0.86
|
|
$
|
(0.35
|
)
|
|
(40.7
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
Rental income.
Rental income increased for the year ended December 31, 2009, compared to the same period in 2008, primarily due to
increases
in rental income from our Other Markets and Oahu, HI segments, offset by a decrease in rental income from our Washington, DC market segment, as described in the segment information note to our
consolidated financial statements. The aggregate increase reflects property acquisitions offset by a decrease in rental income from the contribution of 29 properties to GOV and the decline in
occupancy. Rental income from our Other Markets segment increased $18.4 million, or 4%, reflecting the acquisition of nine properties during 2009 and 54 properties during 2008, offset by a
$28.8 million decrease in rental income from the contribution of 25 properties to GOV in June 2009, and the decline in occupancy primarily from properties we owned continuously since
January 1, 2008. Rental income from our Oahu, HI segment increased $5.7 million, or 9%, primarily because of an increase in weighted average rental rates for new leases and lease
renewals signed during 2008 and 2009. Rental income from our Washington, DC segment decreased by
51
Table of Contents
$12.0 million,
or 17%, primarily reflecting the contribution of four properties to GOV in June 2009. Rental income includes non-cash straight line rent adjustments totaling
$13.0 million in 2009 and $18.1 million in 2008 and amortization of acquired real estate leases and obligations totaling ($10.0) million in 2009 and ($8.6) million in 2008. Rental income
also includes lease termination fees totaling $1.3 million in 2009 and $2.8 million in 2008.
Total expenses.
The increase in total expenses primarily reflects our acquisition of properties since January 1, 2008, offset by
the
contribution of 29 properties to GOV in June 2009. The increase in depreciation and amortization expense also reflects building and tenant improvement costs incurred throughout our portfolio since
January 1, 2008. Acquisition costs in 2009 include certain costs related to property acquisitions that we now expense since our adoption of the Business Combinations Topic of The FASB
Accounting Standards Codification
TM
in January 2009.
Interest expense.
The decrease in interest expense in 2009 primarily reflects a decrease in interest rates on our floating rate debt and
the
repurchase and retirement of $109.5 million of our senior notes.
Loss on asset impairment.
The loss on asset impairment in 2009 reflects the write down of the net book value of four office and four
industrial
properties located in our Other Markets segment to their estimated fair value. These properties have low current occupancy levels and low long term leasing or releasing prospects. The loss on asset
impairment in 2008 reflects the write off of the net book value of three industrial properties located in our Other Markets segment, that were taken out of service in December 2008.
Gain on early extinguishment of debt.
The gain on early extinguishment of debt in 2009 relates to the repurchase and retirement of
$31.8 million of our floating rate senior notes due 2011 for $24.2 million, $49.3 million of our 6.95% senior notes due 2012 for $41.5 million, $9.0 million of our
6.50% senior notes due 2013 for $7.3 million, $5.3 million of our 5.75% senior notes due 2014 for $4.3 million, and $14.0 million of our 6.40% senior notes due 2015 for
$11.0 million, net of unamortized deferred financing fees and note discounts.
Equity in earnings of equity investments.
Equity in earnings of equity investments represents our proportionate share of earnings (loss)
from AIC
since our investment in this company in February 2009 and from GOV since its IPO in June 2009.
Income from continuing operations.
The decrease in income from continuing operations is due primarily to the loss on asset impairment
recognized in
2009, the decline in occupancy in 2009, the increase in depreciation and amortization expense, and the contribution of 29 properties to GOV in June 2009, offset by the decrease in floating interest
rates and the repurchase and retirement of some of our senior notes, the gain on early extinguishment of debt and income from acquisitions in 2009 and 2008.
Income from discontinued operations.
Income from discontinued operations reflects operating results from ten office properties sold in
2009, 37
office properties sold during 2008 and one office property classified as held for sale as of December 31, 2009.
Gain on sale of properties.
Net sales proceeds and gain from the sale of ten office properties in 2009 were $212.0 million and
$79.1 million, respectively. Net sales proceeds and gain from the sale of 37 office properties in 2008 were $333.6 million and $137.2 million, respectively.
Net income and net income available for common shareholders.
The decrease in net income and net income available for common
shareholders is due
primarily to the decline in gains recognized on the sale of properties, the loss on asset impairment recognized in 2009, the decline in occupancy in 2009, a decrease in rents from the contribution of
29 properties to GOV in June 2009, a decrease in rents from properties sold in 2009 and 2008, and an increase in depreciation and amortization expense, offset by the gain on early extinguishment of
debt, the decrease in floating interest rates and the repurchase and
retirement of some of our senior notes and income from acquisitions in 2009 and 2008. Net income available for common shareholders is net income reduced by preferred distributions.
52
Table of Contents
RESULTS OF OPERATIONS
Year Ended December 31, 2008, Compared to Year Ended December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
2007
|
|
$
Change
|
|
%
Change
|
|
|
|
(in thousands, except per share data)
|
|
|
Rental income
|
|
$
|
835,855
|
|
$
|
783,671
|
|
$
|
52,184
|
|
|
6.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
347,968
|
|
|
315,143
|
|
|
32,825
|
|
|
10.4
|
%
|
|
|
|
Depreciation and amortization
|
|
|
185,693
|
|
|
170,392
|
|
|
15,301
|
|
|
9.0
|
%
|
|
|
|
General and administrative
|
|
|
36,828
|
|
|
33,727
|
|
|
3,101
|
|
|
9.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
570,489
|
|
|
519,262
|
|
|
51,227
|
|
|
9.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
265,366
|
|
|
264,409
|
|
|
957
|
|
|
0.4
|
%
|
|
Interest income
|
|
|
1,442
|
|
|
2,293
|
|
|
(851
|
)
|
|
(37.1
|
)%
|
|
Interest expense
|
|
|
(180,193
|
)
|
|
(170,970
|
)
|
|
9,223
|
|
|
5.4
|
%
|
|
Loss on asset impairment
|
|
|
(2,283
|
)
|
|
—
|
|
|
2,283
|
|
|
100.0
|
%
|
|
Loss on early extinguishment of debt
|
|
|
—
|
|
|
(711
|
)
|
|
711
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before income tax expense
|
|
|
84,332
|
|
|
95,021
|
|
|
(10,689
|
)
|
|
(11.2
|
)%
|
|
Income tax expense
|
|
|
(773
|
)
|
|
(395
|
)
|
|
378
|
|
|
95.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
83,559
|
|
|
94,626
|
|
|
(11,067
|
)
|
|
(11.7
|
)%
|
|
Discontinued operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from discontinued operations
|
|
|
23,912
|
|
|
27,408
|
|
|
(3,496
|
)
|
|
(12.8
|
)%
|
|
|
|
Gain on sale of properties
|
|
|
137,174
|
|
|
2,221
|
|
|
134,953
|
|
|
6076.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
244,645
|
|
|
124,255
|
|
|
120,390
|
|
|
96.9
|
%
|
|
Preferred distributions
|
|
|
(50,668
|
)
|
|
(60,572
|
)
|
|
(9,904
|
)
|
|
(16.4
|
)%
|
|
Excess redemption price paid over carrying value of preferred shares
|
|
|
—
|
|
|
(4,230
|
)
|
|
4,230
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income available for common shareholders
|
|
$
|
193,977
|
|
$
|
59,453
|
|
$
|
134,524
|
|
|
226.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding—basic
|
|
|
226,468
|
|
|
214,361
|
|
|
12,107
|
|
|
5.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding—diluted
|
|
|
255,661
|
|
|
243,554
|
|
|
12,107
|
|
|
5.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted earnings per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations available for common shareholders
|
|
$
|
0.15
|
|
$
|
0.14
|
|
$
|
0.01
|
|
|
7.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from discontinued operations
|
|
$
|
0.71
|
|
$
|
0.14
|
|
$
|
0.57
|
|
|
407.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income available for common shareholders
|
|
$
|
0.86
|
|
$
|
0.28
|
|
$
|
0.58
|
|
|
207.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Rental income.
Rental income increased for the year ended December 31, 2008, compared to the same period in 2007, primarily due to
increases
in rental income from our Other Markets and Oahu, HI segments, offset by a decrease in rental income from our Metro Boston, MA segment, as described in the segment information note to our consolidated
financial statements. Rental income from our Other Markets segment increased $54.8 million, or 12%, primarily because of the acquisition of 54 properties during 2008 and 27 properties during
2007. Rental income from our Oahu, HI market increased by $2.2 million, or 3%, due to an increase in weighted average rental rates for new leases and lease renewals signed during 2007 and 2008.
Rental income from our Metro Boston, MA market
53
Table of Contents
decreased
$4.5 million, or 8%, primarily due to the decrease in occupancy in 2008, partially offset by rental income from three property acquisitions during 2007. Rental income includes
non-cash straight line rent adjustments totaling $18.1 million in 2008 and $20.0 million in 2007 and amortization of acquired real estate leases and obligations totaling
($8.6) million in 2008 and ($9.4) million in 2007. Rental income also includes lease termination fees totaling $2.8 million in 2008 and $1.2 million in 2007.
Total expenses.
The increase in total expenses primarily reflects our acquisition of properties since December 2006. The increase in
depreciation and
amortization expense also reflects building and tenant improvement costs incurred throughout our portfolio since December 2006.
Interest expense.
The increase in interest expense in 2008 reflects an increase in average total debt outstanding which was used
primarily to finance
acquisitions in 2008 and 2007, partially offset by a decrease in floating interest rates.
Loss on asset impairment.
The loss on asset impairment in 2008 reflects the write off of the net book value of three industrial
properties located in
our Other Markets segment that were taken out of service in December 2008.
Loss on early extinguishment of debt.
The loss on early extinguishment of debt in 2007 relates to the write off of deferred financing
fees associated
with the repayment of $200.0 million of our floating rate senior notes in June 2007.
Income from continuing operations.
The decrease in income from continuing operations is due primarily to the increase in depreciation
and
amortization expense, a decrease in occupancy and the loss on asset impairment recognized in 2008, partially offset by income from acquisitions in 2008 and 2007.
Income from discontinued operations.
Income from discontinued operations reflects operating results from nine office properties sold in
2009, 37
office properties sold throughout the year ended December 31, 2008, one property classified as held for sale and one office property sold in 2007.
Gain on sale of properties.
Net sales proceeds and gains from the sale of 37 office properties in 2008 were $333.6 million and
$137.2 million, respectively. Net sales proceeds and gains from the sale of one office property and three land parcels in 2007 were $4.4 million and $2.2 million, respectively.
Net income and net income available for common shareholders.
The increase in net income and net income available for common
shareholders is due
primarily to the gain on sale of properties recognized in 2008 and income from acquisitions in 2008 and 2007, offset by an increase in depreciation and amortization expense, a decrease in occupancy
and the loss on asset impairment recognized in 2008. Net income available for common shareholders is net income reduced by preferred distributions and the excess of the redemption price paid over the
carrying value of our 8.75% series B preferred shares that we partially redeemed in November 2007.
LIQUIDITY AND CAPITAL RESOURCES
Our Operating Liquidity and Resources
Our principal source of funds to meet operating expenses, debt service and pay distributions on our common and preferred shares is
rental income from our properties and distributions from our equity investment in GOV. This flow of funds has historically been sufficient to pay operating expenses, debt service and our distributions
to shareholders. We believe that our operating cash flow will be
54
Table of Contents
sufficient
to meet our operating expenses, debt service and distribution payments for the foreseeable future. Our future cash flows from operating activities will depend primarily upon
our:
-
•
-
ability to maintain or improve the occupancy of, and the current rent rates at, our properties;
-
•
-
ability to control operating cost increases at our properties;
-
•
-
receipt of distributions from our equity investment in GOV; and
-
•
-
ability to purchase additional properties which produce positive cash flows from operations.
We
believe that present leasing market conditions in the majority of areas where our properties are located may result in decreases in occupancies and effective rents, or gross rents
less amortization of landlord funded tenant improvements and leasing costs. The continued volatility in energy costs may also cause our future operating costs to fluctuate; however, the impact of
these fluctuations is expected to be partially offset by the pass through of operating costs to our tenants pursuant to lease terms. We generally do not purchase turnaround properties or properties
which do not generate positive cash
flows. Our future purchases of properties which generate positive cash flows can not be accurately projected because such purchases depend upon available opportunities which come to our attention.
Cash
flows provided by (used in) operating, investing and financing activities were $297.0 million, ($465.3) million and $170.9 million, respectively, for the year ended
December 31, 2009, and $298.4 million, ($82.8) million and ($220.0) million, respectively, for the year ended December 31, 2008. Changes in all three categories between 2009 and
2008 are primarily related to property acquisitions and sales in 2009 and 2008, repayments and issuances of debt obligations, the repurchase of our common shares and debt securities in 2009, and the
reduction in our quarterly common share distribution rate in 2009.
Our Investment and Financing Liquidity and Resources
In order to fund acquisitions and to accommodate cash needs that may result from timing differences between our receipt of rents and
our desire or need to make distributions or pay operating or capital expenses, we maintain a $750.0 million unsecured revolving credit facility with a group of institutional lenders. The credit
facility matures on August 22, 2010; subject to certain conditions, at our option, this facility's maturity date can be extended to August 22, 2011, upon our payment of a fee. We
continue to monitor banking market conditions and to date have not made a decision to either pursue a new or amended revolving credit facility, or exercise our one year extension option. At
December 31, 2009, there was $110.0 million outstanding and $640.0 million available under our revolving credit facility, and we had cash and cash equivalents of
$18.2 million. We expect to use cash balances, borrowings under our credit facility, proceeds from the sale of properties, distributions from our equity investment in GOV and net proceeds of
offerings of equity or debt securities to fund continuing operations and future property acquisitions.
As
of February 23, 2010, there was $156.0 million outstanding and $594.0 million available under our revolving credit facility.
55
Table of Contents
Our
outstanding debt maturities and weighted average interest rates as of December 31, 2009, were as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scheduled Principal Payments During Period
|
|
|
|
|
Year
|
|
Secured
Fixed Rate
Debt
(1)
|
|
Unsecured
Floating
Rate Debt
|
|
Unsecured
Fixed
Rate Debt
|
|
Total
(2)
|
|
Weighted
Average
Interest Rate
|
|
|
2010
|
|
$
|
9,786
|
|
$
|
110,000
|
|
$
|
50,000
|
|
$
|
169,786
|
|
|
3.5
|
%
|
|
2011
|
|
|
260,557
|
|
|
168,219
|
|
|
—
|
|
|
428,776
|
|
|
4.5
|
%
|
|
2012
|
|
|
32,607
|
|
|
—
|
|
|
150,680
|
|
|
183,287
|
|
|
7.0
|
%
|
|
2013
|
|
|
6,981
|
|
|
—
|
|
|
190,980
|
|
|
197,961
|
|
|
6.5
|
%
|
|
2014
|
|
|
19,163
|
|
|
—
|
|
|
244,655
|
|
|
263,818
|
|
|
5.7
|
%
|
|
2015
|
|
|
14,922
|
|
|
—
|
|
|
436,000
|
|
|
450,922
|
|
|
6.0
|
%
|
|
2016
|
|
|
61,239
|
|
|
—
|
|
|
400,000
|
|
|
461,239
|
|
|
6.2
|
%
|
|
2017
|
|
|
6,521
|
|
|
—
|
|
|
250,000
|
|
|
256,521
|
|
|
6.2
|
%
|
|
2018
|
|
|
6,976
|
|
|
—
|
|
|
250,000
|
|
|
256,976
|
|
|
6.6
|
%
|
|
2019
|
|
|
168,174
|
|
|
—
|
|
|
125,000
|
|
|
293,174
|
|
|
6.5
|
%
|
|
2020
|
|
|
5,258
|
|
|
—
|
|
|
—
|
|
|
5,258
|
|
|
6.4
|
%
|
|
2021 and thereafter
|
|
|
38,722
|
|
|
—
|
|
|
—
|
|
|
38,722
|
|
|
6.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
630,906
|
|
$
|
278,219
|
|
$
|
2,097,315
|
|
$
|
3,006,440
|
|
|
5.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
In
December 2009, we closed on a mortgage loan for $175.0 million with a 10 year term secured by one property located in
Philadelphia, PA. Interest on this loan is payable at a spread over LIBOR but has been fixed for the first seven years with a cash flow hedge that sets the rate at approximately 5.66% per year.
-
(2)
-
Total
debt as of December 31, 2009, net of unamortized premiums and discounts, equals $2,992,650.
When
significant amounts are outstanding under our revolving credit facility or as the maturity dates of our revolving credit facility and term debts approach, we explore alternatives
for the repayment of amounts due. Such alternatives may include incurring additional debt and issuing new equity securities. We have an effective shelf registration statement that allows us to issue
public securities on an expedited basis, but it does not assure that there will be buyers for such securities.
Although
capital markets have recently improved, during the last twelve months capital markets conditions have been generally challenging. We believe we will have access to various types
of financings, including debt or equity offerings, to fund our future acquisitions and to pay our debts and other obligations as they become due. The completion and the costs of our future debt
transactions will depend primarily upon market conditions and our credit ratings. We have no control over market conditions. Our credit ratings depend upon evaluations by credit rating agencies of our
business practices and plans and, in particular, whether we appear to have the ability to maintain our earnings, to space our debt maturities and to balance our use of debt and equity capital so that
our financial performance and leverage ratios afford us flexibility to withstand any reasonably anticipatable adverse changes. We intend to conduct our business activities in a manner which will
continue to afford us reasonable access to capital for investment and financing activities. However, there can be no assurance that we will be able to complete any debt or equity offerings or renew
our revolving credit facility, or that our cost of any future public or private financings will be reasonable. Also, if current market conditions worsen, one or more lenders under our current
revolving credit facility may be unable or unwilling to fund advances which we request or we may be unable or unwilling to renew our revolving credit facility, and we may not be able to access
alternative capital.
56
Table of Contents
During the year ended December 31, 2009, we purchased nine office properties for $564.4 million and two industrial properties for
$51.1 million, excluding closing costs, using cash on hand, borrowings under our revolving credit facility and the assumption of $9.1 million of secured mortgage debt. We also funded
improvements to our owned properties totaling $58.8 million during the year ended December 31, 2009.
As
of February 23, 2010, we have an executed purchase agreement for one property with approximately 77,000 square feet of space for a total purchase price of $10.8 million,
excluding closing costs. This potential purchase transaction is subject to completion of diligence and other customary conditions; because of these contingencies we can provide no assurances that we
will purchase this property.
In
May 2008, we entered into various purchase agreements to sell 48 medical office, clinic and biotech laboratory buildings to SNH for an aggregate purchase price of approximately
$565.0 million, excluding closing costs. In 2008 and 2009, we sold 47 of these properties containing 2.2 million square feet of space for an aggregate purchase price of approximately
$562.0 million, excluding closing costs, and recognized gains totaling approximately $216.3 million. The one remaining building originally included in these agreements with an allocated
value of $3.0 million is no longer subject to an agreement for sale. In addition, SNH acquired rights of first refusal from us to purchase any of 45 additional buildings (containing
approximately 4.6 million square feet of rental space) that are leased to tenants in medical related businesses which we continue to own. Both we and SNH are managed by RMR. Because we and SNH
are both managed by RMR, the terms of these transactions were negotiated and approved by
special committees of our and SNH's boards of trustees composed solely of Independent Trustees of each company who are not trustees of both companies.
In
June 2008, we agreed to sell one additional property to a third party for $15.0 million, excluding closing costs. This purchase contract expired and we retained the $750,000
previously paid by the buyer when it was unable to meet its obligation to close on January 26, 2010. A new purchase contract is currently being considered which may include purchase money
financing provided by us, secured by a first mortgage on the property, and a closing date later in 2010. We can provide no assurance that we will sell this building or that this sale will be completed
in 2010.
In
January 2009, we announced that our board authorized a buy back program of our common shares during 2009. We purchased 4,050,000 common shares for $14.5 million, including
transaction costs, at an average price of $3.57 per share before this program expired in December 2009.
In
March 2009, we purchased $8.0 million of marketable certificates which are backed by our mortgage notes payable due January 2011, for $6.8 million. We classify these
certificates as investments held to maturity rather than available for sale or trading because we have the intent and ability to hold these certificates until maturity. These certificates are included
in other assets in our consolidated balance sheet as of December 31, 2009. These certificates had an estimated fair market value of $7.4 million as of December 31, 2009.
During
2009, we repurchased and retired $31.8 million of our floating rate senior notes due 2011 for $24.2 million, $49.3 million of our 6.95% senior notes due 2012
for $41.5 million, $9.0 million of our 6.50% senior notes due 2013 for $7.3 million, $5.3 million of our 5.75% senior notes due 2014 for $4.3 million, and
$14.0 million of our 6.40% senior notes due 2015 for $11.0 million using cash on hand and borrowings under our revolving credit facility. In connection with these transactions, we
recognized gains totaling $20.7 million, net of unamortized deferred financing fees and note discounts.
During
April 2009, we contributed the GOV properties to our then wholly owned subsidiary, GOV, a REIT that owns properties that are majority leased to government tenants. Also in April
2009, GOV entered into a new $250.0 million secured credit facility with a group of commercial banks. The $250.0 million proceeds of this credit facility were distributed to us and used
to repay amounts outstanding under our revolving credit facility. In June 2009, GOV completed the GOV IPO and became a separate public company. Simultaneous with the closing of the GOV IPO, the
$250.0 million
57
Table of Contents
secured
credit facility ceased to be our obligation. In connection with this transaction, we and GOV entered into the transaction agreement which governs our separation and relationship with GOV.
Among other terms, under this agreement GOV acquired rights of first refusal to purchase from us additional buildings that are majority leased to government tenants which we continue to own after the
GOV IPO. During the fourth quarter of 2009, we received cash distributions totaling $5.0 million from GOV. At December 31, 2009, we owned 9,950,000, or 46.3%, of the common shares of
beneficial interest of GOV with a carrying value of $153.8 million and a market value, based on quoted market prices, of $228.7 million ($22.98 per share). In January 2010, GOV completed
a public offering of 9,775,000 common shares, reducing our ownership percentage in GOV from 46.3% to 31.8%.
During
2009, we invested $5.1 million in AIC, an insurance company that is owned by RMR and companies to which RMR provides management services. We own 14.29% of the common shares
of AIC which has a carrying value of $5.0 million as of December 31, 2009.
In
November 2009, we issued $125.0 million of unsecured senior notes in a public offering, raising net proceeds of approximately $121.5 million. These notes bear interest
at 7.50% per annum, require quarterly interest payments and mature in November 2019. In December 2009, we closed on a mortgage loan for $175.0 million with a 10 year term secured by one
of our properties located in Philadelphia, PA. Interest on this loan is payable at a spread over LIBOR but has been fixed for the first seven years with a cash flow hedge that sets the rate at
approximately 5.66% per year (excluding amortization of costs). No principal repayment is required for the first three years, after which the loan will be amortized on a 30 year direct
reduction basis until maturity in December 2019 and may be prepaid without penalty. Net proceeds from these financing transactions were used to reduce amounts outstanding under our revolving credit
facility.
During
the year ended December 31, 2009 and 2008, cash expenditures made and capitalized for tenant improvements, leasing costs, building improvements and development and
redevelopment activities were as follows (amounts in thousands):
|
|
|
|
|
|
|
|
|
|
|
Year Ended
December 31,
|
|
|
|
2009
|
|
2008
|
|
|
Tenant improvements
|
|
$
|
30,426
|
|
$
|
48,243
|
|
|
Leasing costs
|
|
|
14,561
|
|
|
16,478
|
|
|
Building improvements
(1)
|
|
|
15,220
|
|
|
8,088
|
|
|
Development and redevelopment activities
(2)
|
|
|
13,172
|
|
|
19,966
|
|
-
(1)
-
Building
improvements generally include construction costs, expenditures to replace obsolete building components, and expenditures that extend
the useful life of existing assets.
-
(2)
-
Development,
redevelopment and other activities generally include non-recurring expenditures or expenditures that we believe
increase the value of our existing properties.
58
Table of Contents
Commitments
made for expenditures in connection with leasing space during the year ended December 31, 2009, are as follows (amounts in thousands, except as noted):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Leases
(1)
|
|
Renewals
(1)
|
|
Total
|
|
|
Square feet leased during the year
|
|
|
1,514
|
|
|
3,154
|
|
|
4,668
|
|
|
Total commitments for tenant improvements and leasing costs
|
|
$
|
18,787
|
|
$
|
26,224
|
|
$
|
45,011
|
|
|
Leasing costs per square foot (whole dollars)
|
|
$
|
12.41
|
|
$
|
8.31
|
|
$
|
9.64
|
|
|
Average lease term (years)
|
|
|
7.0
|
|
|
5.5
|
|
|
5.9
|
|
|
Leasing costs per square foot per year (whole dollars)
|
|
$
|
1.77
|
|
$
|
1.51
|
|
$
|
1.63
|
|
-
(1)
-
Excludes
properties classified in discontinued operations.
As
of December 31, 2009, our contractual obligations were as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment Due by Period
|
|
|
Contractual Obligations
|
|
Total
|
|
Less than
1 year
|
|
1-3 years
|
|
3-5 years
|
|
More than
5 years
|
|
|
Long term debt obligations
|
|
$
|
3,006,440
|
|
$
|
169,786
|
|
$
|
612,063
|
|
$
|
461,779
|
|
$
|
1,762,812
|
|
|
Tenant related obligations
(1)
|
|
|
34,707
|
|
|
33,563
|
|
|
209
|
|
|
142
|
|
|
793
|
|
|
Projected interest expense
(2)
|
|
|
975,764
|
|
|
175,115
|
|
|
297,344
|
|
|
246,076
|
|
|
257,229
|
|
|
Ground lease obligation
(3)
|
|
|
144,707
|
|
|
1,456
|
|
|
2,912
|
|
|
2,938
|
|
|
137,401
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
4,161,618
|
|
$
|
379,920
|
|
$
|
912,528
|
|
$
|
710,935
|
|
$
|
2,158,235
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Committed
tenant related obligations include leasing commissions and tenant improvements and are based on leases executed through
December 31, 2009.
-
(2)
-
Projected
interest expense is attributable to only the long term debt obligations listed above at existing rates and is not intended to
project future interest costs which may result from debt prepayments, new debt issuances or changes in interest rates.
-
(3)
-
Ground
lease obligation represents payments due by us pursuant to an operating ground lease at one of our properties under which we are the
lessee.
We
have no commercial paper, swaps, hedges, or off balance sheet arrangements as of December 31, 2009, other than the cash flow hedge on a $175.0 million mortgage loan,
discussed above under "Our Investment and Financing Liquidity and Resources". None of our debt documentation requires us to provide collateral security in the event of a ratings downgrade.
Debt Covenants
Our principal debt obligations at December 31, 2009, were our unsecured revolving credit facility and our $2.3 billion of
publicly issued unsecured term debt. Our publicly issued debt is governed by an indenture. Our public debt indenture and related supplements and our revolving credit facility agreement contain a
number of financial ratio covenants which generally restrict our ability to incur debts, including debts secured by mortgages on our properties, in excess of calculated amounts, require us to maintain
a minimum net worth, restrict our ability to make distributions under certain circumstances and require us to maintain other financial ratios. At December 31, 2009, we believe we were in
compliance with all of our covenants under our indenture and related supplements and our revolving credit facility agreement.
In
addition to our unsecured debt obligations, we had $624.2 million of mortgage notes outstanding at December 31, 2009.
None
of our indenture and related supplements, our revolving credit facility or our mortgage notes contain provisions for acceleration or require us to provide collateral security which
could be triggered
59
Table of Contents
by
our debt ratings. However, our senior debt rating is used to determine the interest rate and the fees payable under our revolving credit facility.
Our
public debt indenture and related supplements contain cross default provisions to any other debts of $20.0 million or more. Similarly, our revolving credit facility contains
cross default provisions. Any termination of our business management agreement with RMR would cause a default under our revolving credit facility, if not approved by a majority of our lenders.
Related Person Transactions
RMR provides management services to us and also provides management services to other public and private companies, including SNH, HPT,
GOV, Five Star and TA.
We
have two agreements with RMR to provide management and administrative services to us: a business management agreement and a property management agreement. The business management
agreement provides for compensation to RMR at an annual rate equal to 0.7% of the average historical cost of our real estate investments, as described in the business management agreement, for the
first $250.0 million of such investments, and 0.5% thereafter. In addition, RMR receives an incentive fee based upon increases in our FFO Per Share, as defined in the business management
agreement. The incentive fee is paid in our common shares. In connection with the closing of the GOV IPO, which is described below, on June 8, 2009, we entered into an amended and restated
business management agreement with RMR to provide that our investment in GOV would not be counted for purposes of determining the business management fees payable by us to RMR for periods following
the completion of such offering and income, loss and funds from operations attributable to the GOV Properties will not be included in determining any incentive fee payable by us for our 2009 fiscal
year. The property management agreement provides for management fees equal to 3.0% of gross rents and construction management fees equal to 5.0% of certain construction costs. Both the business
management agreement and the property management agreement are effective until December 31, 2010, and will be automatically renewed for successive one year terms thereafter unless we or RMR
give notice of non-renewal before the end of an applicable term. We or RMR may terminate either agreement upon 60 days prior written notice. RMR may also terminate the property
management agreement upon five business days notice if we undergo a change of control, as defined in the property management agreement. Our Board has given our compensation committee, which is
comprised of our Independent Trustees, authority to act on our behalf with respect to these agreements. The charter of our compensation committee requires the committee to review the terms of the
agreements and evaluate RMR's performance under the agreements annually. The aggregate business management and property management fees we paid RMR for 2009 were $63.6 million, which amount
includes $2.4 million that we allocated to GOV before GOV became a separate public company. We are generally responsible for all of our operating expenses, including certain expenses incurred
by RMR on our behalf. We are not responsible for payment of RMR's employment, office or administration expenses incurred to provide management services to us, except for our pro rata portion of the
employment and related expenses of RMR employees who provide on site property management services and of the staff employed by RMR who conduct our internal audit function. Under our business
management agreement with RMR, we acknowledge that RMR manages other businesses, including SNH, HPT, GOV, Five Star and TA, and will not be required to present us with opportunities to invest in
properties that are primarily of a type that are within the investment focus of another business now or in the future managed by RMR. Each of the business management agreement and the property
management agreement also includes arbitration provisions for the resolution of certain disputes, claims and controversies. Any termination of our business management agreement with RMR would cause a
default under our revolving credit facility, if not approved by a majority of our lenders.
RMR
also provides the internal audit function for us and for other publicly owned companies to which it provides management services. Our audit committee appoints our director of
internal audit, and our compensation committee approves his salary and the costs we pay with respect to our internal
60
Table of Contents
audit
function. Our pro rata share of RMR's costs in providing that function was $226,000 in 2009. RMR also leases from us approximately 26,000 square feet of office space for ten regional offices. We
received approximately $531,000 in rental income from RMR in 2009, which we believe is a commercially reasonable rental rate for such office space. Barry Portnoy and his son Adam Portnoy beneficially
own RMR and are our Managing Trustees. Barry Portnoy is the Chairman of RMR; Adam
Portnoy is the President, Chief Executive Officer and a director of RMR. Each of our executive officers is also an officer of RMR. Additionally, Barry Portnoy's son-in-law, who
is Adam Portnoy's brother-in-law, is an officer of RMR. Transactions between us and RMR are approved by our compensation committee which is comprised of Independent Trustees.
In
May 2008, we entered into various purchase agreements for the sale by us to SNH of 48 medical office, clinic and biotech laboratory buildings for an aggregate purchase price of
approximately $565.0 million. We sold 47 of these properties containing 2.2 million square feet of space for $562.0 million, excluding closing costs, and recognized gains totaling
approximately $216.3 million. The one remaining building originally included in these agreements with an allocated value of $3.0 million is no longer subject to the agreement for sale.
Our purchase agreements with SNH include arbitration provisions for the resolution of certain disputes, claims and controversies.
SNH
was formerly our 100% owned subsidiary. It was spun off to our shareholders in 1999 and, at the time of this spin off, we and SNH entered into a transaction agreement which, among
other things, prohibited SNH from purchasing medical office, clinic and biotech laboratory buildings. Concurrently with the execution and delivery of the purchase agreements described above, we and
SNH entered into an amendment to that transaction agreement to permit SNH, rather than us, to invest in medical office, clinic and biomedical, pharmaceutical and laboratory buildings. Also,
concurrently with the execution and delivery of the agreements between SNH and us described above, we entered into a right of first refusal agreement under which we granted SNH a right of first
refusal to purchase up to 45 additional identified properties (containing approximately 4.6 million square feet of rental space) that we own and which are leased to tenants in medical related
businesses in the event that we determine to sell such properties or in the event of an indirect sale as a result of a change of control of us or a change of control of our subsidiary which owns those
properties.
Both
we and SNH are managed by RMR; Barry Portnoy and Adam Portnoy are Managing Trustees of both us and SNH; and Frederick N. Zeytoonjian is an Independent Trustee of both us and SNH. As
a result, the transactions between us and SNH described above were negotiated and approved by special committees of each company's board of trustees comprised solely of Independent Trustees who were
not also Independent Trustees of the other party to these agreements.
During
April 2009, we contributed the GOV Properties to our then wholly owned subsidiary, GOV, a REIT that owns properties that are majority leased to government tenants. Also in April
2009, GOV entered into a new $250.0 million secured credit facility with a group of commercial banks. The $250.0 million proceeds of this credit facility were distributed to us and used
to repay amounts outstanding under our revolving credit facility.
In
June 2009, GOV completed the GOV IPO and became a separate public company and ceased to be our subsidiary. In connection with this offering, we and GOV entered a transaction agreement
on June 8, 2009, which governs our separation and relationship with GOV. Pursuant to the transaction agreement:
-
•
-
The current assets and liabilities from the GOV Properties, as of the time of closing of the GOV IPO, were settled between
us and GOV so that we retained all pre-closing current assets and liabilities and GOV retained all post-closing current assets and liabilities;
-
•
-
GOV agreed to indemnify us with respect to any liability relating to any GOV Property, including liabilities which arose
before GOV's formation;
-
•
-
We and GOV agreed that so long as we own in excess of 10% of GOV's outstanding common shares, we and GOV engage the same
manager or we and GOV have any common managing
61
Table of Contents
trustees,
(1) we will not acquire ownership (including fee interest, leaseholds, joint ventures, mortgages or other real estate assets) of properties which are majority leased to government
tenants, unless a majority of GOV's Independent Trustees who are not also trustees of ours have determined not to make the acquisition, (2) GOV will not acquire ownership (including fee
interest, leaseholds, joint ventures, mortgages or other real estate assets) of office or industrial properties which are not majority leased to government tenants, unless a majority of our
Independent Trustees who are not also trustees of GOV have determined not to make the acquisition, and (3) GOV will have a right of first refusal to purchase any property owned by us that we
determine to divest if the property is then majority leased to government tenants, which right of first refusal will also apply in the event of an indirect sale of any such properties resulting from a
change of control of us. The provisions described in (1) and (2) do not apply to any investments held or committed to by us or GOV at the time of the GOV IPO. In addition, the provisions
described in (1) and (2) do not prevent GOV from continuing to own and lease its current properties or properties otherwise acquired by GOV that cease to be majority leased to government
tenants following the expiration or termination of government tenancies in effect as of the time of completion of the GOV IPO or such acquisition. The provisions described in (1) and
(2) also do not prohibit us from leasing our current or future properties to government tenants.
-
•
-
We and GOV agreed to cooperate to enforce the ownership limitations in our and its respective declarations of trust as may
be appropriate for each of us to qualify for and maintain our tax status as a REIT and otherwise to promote our respective orderly governance, and to cooperate to file future tax returns, including
appropriate allocations of taxable income, expenses and other tax attributes; and
-
•
-
We and GOV agreed that certain disputes, claims and controversies arising under the transaction agreement may be referred
to binding arbitration proceedings.
At
February 23, 2010, we owned 9,950,000, or 31.8%, of the common shares of beneficial interest of GOV. Both we and GOV are managed by RMR, Barry Portnoy and Adam Portnoy are
Managing Trustees of both us and GOV and Adam Portnoy is President of GOV.
We,
RMR and other companies to which RMR provides management services formed AIC, which is an insurance company, in the State of Indiana in November 2008. AIC received its certificate of
authority to transact insurance business in the State of Indiana from the Indiana Department of Insurance in May 2009. All of our trustees currently serve on the Board of Directors of AIC. RMR, in
addition to being a shareholder, entered a management agreement with AIC pursuant to which RMR provides AIC certain management and administrative services. In addition, AIC entered an investment
advisory agreement with RMR Advisors, Inc., or RMR Advisors, pursuant to which RMR Advisors acts as AIC's investment advisor. The same persons who own and control RMR, including Messrs. Barry
and Adam Portnoy, our Managing Trustees, own and control RMR Advisors. Our Governance Guidelines provide that any material transaction between us and AIC shall be reviewed, authorized and approved or
ratified by both the affirmative vote of a majority of our entire Board of Trustees and the affirmative vote of a majority of our Independent Trustees. As of February 23, 2010 we have invested
$5.2 million in AIC. On December 16, 2009, GOV purchased 20,000 shares of AIC from AIC, which represented a 14.29% interest in AIC. In connection with that purchase by GOV, we, the other
previous shareholders of AIC, AIC and GOV entered an amended and restated shareholders agreement. The amended and restated shareholders agreement also includes arbitration provisions for the
resolution of certain disputes, claims and controversies. We and the other shareholders of AIC each currently own approximately 14.29% of AIC. We may invest additional amounts in AIC in the future if
the expansion of this insurance business requires additional capital, but we are not obligated to do so. Over time we expect to obtain some or all of our insurance coverage from AIC. By participating
in this insurance business with RMR and the other companies to which RMR provides management services, we expect that we may benefit financially by possibly reducing our insurance expenses and/or by
62
Table of Contents
realizing
our pro-rata share of any profits of this insurance business. All transactions between us and AIC have been approved pursuant to our Governance Guidelines.
The
foregoing descriptions of our agreements with SNH, GOV, RMR and AIC are summaries and are qualified in their entirety by the terms of the agreements which are among the exhibits
listed in Item 15 of this Annual Report on Form 10-K and incorporated herein by reference. In addition, copies of those agreements are filed with the SEC and may be obtained
from the SEC's website at www.sec.gov.
We
believe that our agreements with SNH, GOV, RMR and AIC are on commercially reasonable terms. Nonetheless, because of our various relationships with SNH, GOV, RMR and AIC it is
possible that some investors may assert otherwise.
Policies and Procedures Concerning Conflicts of Interest and Related Person Transactions
Our Code of Conduct and our Governance Guidelines address the review and approval of activities, interests or relationships that
interfere with, or appear to interfere with, our interests, including related person transactions. Persons subject to our Code of Conduct and Governance Guidelines are under a continuing obligation to
disclose any such conflicts of interest and may pursue a transaction or relationship which involves such conflicts of interest only if the transaction or relationship has been approved as
follows:
-
•
-
In the case of an executive officer or trustee, such person must seek approval from our disinterested trustees for
investments, related person transactions (involving a direct or indirect material interest) and other transactions or relationships which such person would like to pursue and which may otherwise
constitute a conflict of interest or other action falling outside the scope of permissible activities under our Code of Conduct or Governance Guidelines. If there are no disinterested trustees, the
transaction shall be reviewed, authorized and approved or ratified by both the affirmative vote of a majority of our entire Board of Trustees and the affirmative vote of a majority of our Independent
Trustees. In determining whether to approve or ratify a transaction, our Board of Trustees, disinterested trustees or Independent Trustees, as the case may be, shall act in accordance with any
applicable provisions of our declaration of trust, shall consider all of the relevant facts and circumstances, and shall approve only those transactions that are fair and reasonable to us.
-
•
-
In the case of RMR employees (other than our trustees and executive officers) subject to our Code of Conduct, the employee
must seek approval from an executive officer who has no interest in the matter for which approval is being requested.
-
•
-
Together with RMR and various affiliates of RMR, in 2009 we formed and licensed AIC, in which we own equity, and for which
all of our trustees serve as directors. Any material transaction between us and AIC shall be reviewed, authorized and approved or ratified by both the affirmative vote of a majority of our entire
Board of Trustees and the affirmative vote of a majority of our Independent Trustees.
The
following is a summary of provisions of our declaration of trust, affecting certain transactions with related persons. Because it is a summary of the material terms, it does not
contain all the information that may be important to you. If you would like more information, you should read our entire declaration of trust, which has been filed as an exhibit to our Registration
Statement on Form S-3, File No. 333-159995, as filed with the SEC on June 15, 2009. Under our declaration of trust:
-
•
-
Each of our trustees, officers, employees and agents may, in his or her personal capacity or otherwise, have business
interests and engage in business activities similar to or in addition to those relating to us, which interests and activities may be similar to and competitive with ours and may include the
acquisition, syndication, holding, management, development, operation or disposition, for his own account, or for the account of others, of interests in mortgages, interests in real property, or
interests in persons engaged in the real estate business.
63
Table of Contents
-
•
-
Each of our trustees, officers, employees and agents is free of any obligation to present to us any investment opportunity
which comes to him or her in any capacity other than solely as our trustee, officer, employee or agent even if such opportunity is of a character which, if presented to us, could be taken by us.
-
•
-
Each of our trustees, officers, employees or agents may be interested as a trustee, officer, director, shareholder,
partner, member, advisor or employee of, or otherwise have a direct or indirect interest in, any person who may be engaged to render advice or services to us, and may receive compensation from such
person as well as compensation from us as a trustee, officer, employee or agent or otherwise.
-
•
-
None of the above mentioned activities will be deemed to conflict with an individual's duties and powers as our trustee,
officer, employee or agent.
-
•
-
We may enter into any contract or transaction of any kind, whether or not any of our trustees, officers, employees or
agents has a financial interest in such transaction, with any person, including any of our trustees, officers, employees or agents or any person affiliated with one of our trustees, officers,
employees or agents or in which one of our trustees, officers, employees or agents has a material financial interest.
-
•
-
To the extent permitted by Maryland law, a contract or other transaction between us and any of our trustees or between us
and RMR or any other entity in which any of our trustees is a director or trustee or has a material financial interest shall not be void or voidable if:
-
•
-
The fact of the common directorship, trusteeship or interest is disclosed or known to our Board of Trustees or a proper
committee thereof, and our Board of Trustees or such committee authorizes or ratifies the contract, act or other transaction by the affirmative vote of a majority of disinterested trustees, or, if
there are no disinterested trustees, then the approval shall be by majority vote of our entire Board of Trustees and by majority vote of our Independent Trustees;
-
•
-
The fact of the common directorship, trusteeship or interest is disclosed or known to our shareholders entitled to vote,
and the contract, act or other transaction is approved by a majority of the votes cast by our shareholders entitled to vote; or
-
•
-
The contract or other transaction is fair and reasonable to the Trust.
Critical Accounting Policies
Our critical accounting policies are those that will have the most impact on the reporting of our financial condition and results of
operations and those requiring significant judgments and estimates. We believe that our judgments and estimates are consistently applied and produce financial information that fairly presents our
results of operations. Our most critical accounting policies involve our investments in real property. These policies affect our:
-
•
-
allocation of purchase price among various asset categories and the related impact on the recognition of rental income and
depreciation and amortization expense;
-
•
-
assessment of the carrying values and impairments of long lived assets; and
-
•
-
classification of leases; and
-
•
-
investments in GOV and AIC.
We
historically allocated the purchase price for our properties among land, building and improvements, and each component generally has a different useful life. For properties acquired
subsequent to June 1, 2001, the effective date of what is now known as The Business Combinations Topic of The FASB Accounting Standards Codification™, the consideration paid,
generally cash plus the fair value of any assumed liabilities, was allocated among land, building and improvements and identified intangible assets and liabilities, consisting of the value of above
market and below market
64
Table of Contents
leases,
the value of in place leases and the value of tenant relationships. Purchase price allocations and the determination of useful lives are based on our estimates and, under some circumstances,
studies from independent real estate appraisal firms to provide market information and evaluations that are relevant to our purchase price allocations and determinations of useful lives; however, we
are ultimately responsible for the purchase price allocations and determination of useful lives.
We
allocate the consideration to land, building and improvements based on a determination of the relative fair values of these assets assuming the property is vacant. We determine the
fair value of a property using methods that we believe are similar to those used by independent appraisers. Purchase price allocations to above market and below market leases are based on the
estimated present value (using an interest rate which reflects our assessment of the risks associated with the leases acquired) of the difference between (1) the contractual amounts to be paid
pursuant to the in place leases and (2) our estimate of fair market lease rates for the corresponding leases, measured over a period equal to the remaining non-cancelable terms of
the respective leases. Purchase price allocations to in place leases and tenant relationships are determined as the excess of (1) the purchase price paid for a property after adjusting existing
in place leases to estimated market rental rates over
(2) the estimated fair value of the property as if vacant. We aggregate this value between in place lease values and tenant relationships based on our evaluation of the specific characteristics
of each tenant's lease; however, the value of tenant relationships has not been separated from in place lease value for our properties because we believe such value and related amortization expense is
immaterial for acquisitions reflected in our historical financial statements. We consider certain factors in performing these analyses including estimates of carrying costs during the expected lease
up periods, including real estate taxes, insurance and other operating income and expenses and costs to execute similar leases in current market conditions, such as leasing commissions, legal and
other related costs. If we believe the value of tenant relationships are material in the future, those amounts will be separately allocated and amortized over the estimated lives of the relationships.
We recognize the excess, if any, of the consideration paid over amounts allocated to land, buildings and improvements and identified intangible assets and liabilities as goodwill.
We
compute depreciation expense using the straight line method over estimated useful lives of up to 40 years for buildings and improvements, and up to 12 years for personal
property. We do not depreciate the allocated cost of land. We amortize capitalized above market lease values (included in acquired real estate leases) as a reduction to rental income over the
remaining non-cancelable terms of the respective leases. We amortize capitalized below market lease values (presented as acquired real estate lease obligations) as an increase to rental
income over the remaining terms of the respective leases. We amortize the value of in place leases exclusive of the value of above market and below market in place leases to expense over the remaining
non-cancelable periods of the respective leases. If a lease is terminated prior to its stated expiration, all unamortized amounts relating to that lease are written off. Purchase price
allocations require us to make certain assumptions and estimates. Incorrect assumptions and estimates may result in inaccurate depreciation and amortization charges over future periods.
We
periodically evaluate our properties for possible impairments. Impairment indicators may include declining tenant occupancy, lack of progress releasing vacant space, tenant
bankruptcies, low long term prospects for improvement in property performance, weak or declining tenant profitability, cash flow or liquidity, our decision to dispose of an asset before the end of its
estimated useful life and legislative, market or industry changes that could permanently reduce the value of a property. If indicators of impairment are present, we evaluate the carrying value of the
related property by comparing it to the expected future undiscounted cash flows to be generated from that property. If the sum of these expected future cash flows is less than the carrying value, we
reduce the net carrying value of the property to its estimated fair value. This analysis requires us to judge whether indicators of impairment exist and to estimate likely future cash flows. If we
misjudge or estimate incorrectly or if future tenant operations, market or industry factors differ from our expectations we may record an
65
Table of Contents
impairment
charge that is inappropriate or fail to record a charge when we should have done so, or the amount of any such charges may be inaccurate.
Each
time we enter a new lease or materially modify an existing lease we evaluate its classification as either a capital or operating lease. The classification of a lease as capital or
operating affects the carrying value of a property, as well as our recognition of rental payments as revenue. These
evaluations require us to make estimates of, among other things, the remaining useful life and fair market value of a leased property, appropriate discount rates and future cash flows. Incorrect
assumptions or estimates may result in misclassification of our leases.
These
policies involve significant judgments made based upon experience, including judgments about current valuations, ultimate realizable value, estimated useful lives, salvage or
residual value, the ability and willingness of our tenants to perform their obligations to us, current and future economic conditions and competitive factors in the markets in which our properties are
located. Competition, economic conditions and other factors may cause occupancy declines in the future. In the future, we may need to revise our carrying value assessments to incorporate information
which is not now known, and such revisions could increase or decrease our depreciation expense related to properties we own, result in the classification of our leases as other than operating leases
or decrease the carrying values of our assets.
Our
investments in GOV and AIC are accounted for using the equity method of accounting. Under the equity method, we record our percentage share of net earnings from GOV and AIC in our
consolidated statements of income. We use the income statement method to account for issuance of common shares of beneficial interest by GOV and shares of common stock by AIC. Under this method, gains
and losses reflecting changes in the value of our investments at the date of issuance of additional common shares by GOV or AIC are recognized in our consolidated statements of income. Under the
equity method, accounting policy judgments made by GOV and AIC could have a material effect on our net income. Also, if we determine there is an "other than temporary" decline in the fair value of
these investments, their cost basis would be written down to fair value and the amount of the write down would be included in our earnings. In evaluating the fair value of these investments, we have
considered, among other things, quoted market prices for GOV, the financial condition and near term prospects of each investee, earnings trends, asset quality, asset valuation models, and the
financial condition and prospects for their respective industries generally.
IMPACT OF INFLATION
Inflation might have both positive and negative impacts upon us. Inflation might cause the value of our real estate to increase.
Inflation might also cause our costs of equity and debt capital and other operating costs to increase. An increase in our capital costs or in our operating costs will result in decreased earnings
unless it is offset by increased revenues.
To
mitigate the adverse impact of increased costs of debt capital in the event of material inflation, we may enter into additional interest rate hedge arrangements in the future. The
decision to enter into these agreements will be based on the amount of our floating rate debt outstanding, our belief that material interest rate increases are likely to occur and upon requirements of
our borrowing arrangements.
In
periods of rapid inflation, our tenants' operating costs may increase faster than revenues and this fact may have an adverse impact upon us if our tenants' operating income becomes
insufficient to pay our rent. To mitigate the adverse impact of tenant financial distress upon us, we require some of our tenants to provide guarantees or security for our rent.
66
Table of Contents
IMPACT OF CLIMATE CHANGE
The current political debate about climate change has resulted in various treaties, laws and regulations which are intended to limit
carbon emissions. We believe these laws being enacted or proposed may cause energy costs at our properties to increase, but we do not expect the direct impact of these increases to be material to our
results of operations because the increased costs either would be the responsibility of our tenants directly or in large part may be passed through by us to our tenants as additional lease payments.
Although we do not believe it is likely in the foreseeable future, laws enacted to mitigate climate change may make some of our buildings obsolete or cause us to make material investments in our
properties which could materially and adversely affect our financial condition.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
We are exposed to risks associated with market changes in interest rates. We manage our exposure to this market risk by monitoring
available financing alternatives. During 2009 we entered into an interest rate swap agreement that converted a new issue of our floating rate debt to a fixed rate. Otherwise, our strategy to manage
exposure to changes in interest rates is unchanged from December 31, 2008. Other than as described below, we do not foresee any significant changes in our exposure to fluctuations in interest
rates or in how we manage this exposure in the near future.
At
December 31, 2009, our total outstanding fixed rate term debt consisted of the following fixed rate notes:
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
Coupon
|
|
Maturity
|
|
|
Unsecured senior notes:
|
|
|
|
|
|
|
|
|
|
|
$30.0 million
|
|
|
8.875%
|
|
|
2010
|
|
|
|
|
$20.0 million
|
|
|
8.625%
|
|
|
2010
|
|
|
|
$150.7 million
|
|
|
6.950%
|
|
|
2012
|
|
|
|
$191.0 million
|
|
|
6.500%
|
|
|
2013
|
|
|
|
$244.7 million
|
|
|
5.750%
|
|
|
2014
|
|
|
|
$186.0 million
|
|
|
6.400%
|
|
|
2015
|
|
|
|
$250.0 million
|
|
|
5.750%
|
|
|
2015
|
|
|
|
$400.0 million
|
|
|
6.250%
|
|
|
2016
|
|
|
|
$250.0 million
|
|
|
6.250%
|
|
|
2017
|
|
|
|
$250.0 million
|
|
|
6.650%
|
|
|
2018
|
|
|
|
$125.0 million
|
|
|
7.500%
|
|
|
2019
|
|
67
Table of Contents