On December 16, 2004, the FASB issued Statement No. 123 (revised 2004), “Share-Based Payment” (“Statement No. 123R”), which is a revision of Statement No. 123. Statement No. 123R supersedes Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees”, and amends FASB Statement No. 95, “Statement of Cash Flows.” Generally, the approach in Statement No. 123R is similar to the approach described in Statement No. 123. However, Statement No. 123R requires all share-based payments to employees, including grants of employee stock options, to be recognized in the income statement based on their fair values. We adopted Statement No. 123R on January 1, 2006. The adoption of Statement No. 123R did not have a material impact on our consolidated financial statements.
We report comprehensive income or loss in accordance with the provisions of FASB Statement No. 130, “Reporting Comprehensive Income”, which establishes standards for reporting comprehensive income and its components in the financial statements. The components of other comprehensive income (loss) (“OCI”) consist of unrealized gains and losses on derivative instruments.
In January 2003, the FASB issued Interpretation No. 46, “Consolidation of Variable Interest Entities” (“FIN 46”), which explains how to identify variable interest entities (“VIEs”) and how to assess whether to consolidate such entities. VIEs are primarily entities that lack sufficient equity to finance their activities without additional financial support from other parties or whose equity holders lack adequate decision making ability. All VIEs which we are involved with must be evaluated to determine the primary beneficiary of the risks and rewards of the VIE. The primary beneficiary is required to consolidate the VIE for financial reporting purposes. The initial determination of whether an entity qualifies as a VIE shall be made as of the date at which a primary beneficiary becomes involved with the entity and reconsidered as of the date of a triggering event, as defined. The provisions of this interpretation are immediately effective for VIEs formed after January 31, 2003. In December 2003 the FASB issued FIN 46R, deferring the effective date until the period ended March 31, 2004 for interests held by public companies in VIEs created before February 1, 2003, which were non-special purpose entities. We adopted FIN 46R during the period ended March 31, 2004 and have determined that our unconsolidated subsidiaries do not represent VIEs pursuant to such interpretation. We will continue to monitor any changes in circumstances relating to certain of our consolidated and unconsolidated joint ventures which could result in a change in our consolidation policy.
In September 2006, the FASB issued Statement No. 157, Fair Value Measurements (“Statement No. 157”). Statement No. 157 provides guidance for using fair value to measure assets and liabilities. This statement clarifies the principle that fair value should be based on the assumptions that market participants would use when pricing the asset or liability. Statement No. 157 establishes a fair value hierarchy, giving the highest priority to quoted prices in active markets and the lowest priority to unobservable data. Statement No. 157 applies whenever other standards require assets or liabilities to be measured at fair value. Statement No. 157 is effective in fiscal years beginning after November 15, 2007. We believe that the adoption of this standard on January 1, 2008 will not have a material effect on our consolidated financial statements.
In September 2006, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 108 (“SAB No. 108”), which becomes effective on January 1, 2007. SAB No. 108 provides guidance on the consideration of the effects of prior period misstatements in quantifying current year misstatements for the purpose of a materiality assessment. SAB No. 108 provides for the quantification of the impact of correcting all misstatements, including both the carryover and reversing effects of prior year misstatements, on the current year financial statements. If a misstatement is material to the current year financial statements, the prior year financial statements should also be corrected, even though such revision was, and continues to be, immaterial to the prior year financial statements. Correcting prior year financial statements for immaterial errors would not require previously filed reports to be amended. Such correction should be made in the current period filings. We are currently evaluating the impact of adopting SAB No. 108.
In July 2006, the FASB issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes” (“FIN 48”). This interpretation, among other things, creates a two step approach for evaluating uncertain tax positions. Recognition (step one) occurs when an enterprise concludes that a tax position, based solely on its technical merits, is more-likely-than-not to be sustained upon examination. Measurement (step two) determines the amount of benefit that more-likely-than-not will be realized upon settlement. De-recognition of a tax position that was previously recognized would occur when a company subsequently determines that a tax position no longer meets the more-likely-than-not threshold of being sustained. FIN 48 specifically prohibits the use of a valuation allowance as a substitute for de-recognition of tax positions, and it has expanded disclosure requirements. FIN 48 is effective for fiscal years beginning after December 15, 2006, in which the impact of adoption should be accounted for as a cumulative-effect adjustment to the beginning balance of retained earnings. We are currently evaluating FIN 48 and have not yet determined the impact the adoption will have on our consolidated financial statements.
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In June 2005, the FASB ratified the consensus in EITF Issue No. 04-5, “Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights” (“Issue 04-5”), which provides guidance in determining whether a general partner controls a limited partnership. Issue 04-5 states that the general partner in a limited partnership is presumed to control that limited partnership. The presumption may be overcome if the limited partners have either (1) the substantive ability to dissolve the limited partnership or otherwise remove the general partner without cause or (2) substantive participating rights, which provide the limited partners with the ability to effectively participate in significant decisions that would be expected to be made in the ordinary course of the limited partnership’s business and thereby preclude the general partner from exercising unilateral control over the partnership. The adoption of Issue 04-5 by us for new or modified limited partnership arrangements is effective June 30, 2005 and for existing limited partnership arrangements effective January 1, 2006. We have evaluated the guidance provided for under Issue 04-5 and have concluded that we are not required to consolidate our current unconsolidated joint venture investments nor do we expect Issue 04-5 to have a material effect on our consolidated financial statements.
In May 2005, the FASB issued Statement No. 154, “Accounting Changes and Error Corrections” (“Statement No. 154”). Statement No. 154, which replaces APB Opinion No. 20, “Accounting Changes” and FASB Statement No. 3, “Reporting Accounting Changes in Interim Financial Statements”, changes the requirements for the accounting for and reporting of a change in accounting principle. The statement requires retrospective application of changes in accounting principle to prior periods’ financial statements unless it is impracticable to determine the period-specific effects or the cumulative effect of the change. Statement No. 154 is effective for accounting changes and corrections of errors made in fiscal years beginning after December 15, 2005. We adopted Statement No. 154 on January 1, 2006. The adoption of Statement No. 154 did not have a material impact on our consolidated financial position, results of operations or cash flows.
In March 2005, FASB issued Interpretation No. 47, “Accounting for Conditional Asset Retirement Obligations” (“FIN 47”), which became effective December 31, 2005. Under FIN 47, a conditional asset retirement obligation (“CARO”) must be recorded if the liability can be reasonably estimated. A CARO is an obligation that is settled at the time an asset is retired or disposed of and for which the timing and/or method of settlement are conditional on future events. We own certain properties that currently have asbestos which under certain conditions must be remediated. As a result of adopting FIN 47, we will increase the value of our recorded tangible assets at the time we recognize the associated conditional retirement obligation.
As a result, during 2005, we recorded approximately $2.0 million which represents the fair value of the CARO related to asbestos removal in tenant spaces. In addition, for certain limited areas of our properties, management is unable to reasonably determine the fair value of potential remediation costs as there is an indeterminate settlement date for the asset retirement obligation because the range of time over which way we may choose to remediate this condition may not be estimated with any level of precision which would lend itself to a meaningful estimate.
Overview and Background
The Operating Partnership commenced operations on June 2, 1995. Reckson Associates Realty Corp. (the “Company”), which serves as the sole general partner of the Operating Partnership, is a fully integrated, self administered and self managed real estate investment trust (“REIT”). The Operating Partnership and the Company were formed for the purpose of continuing the commercial real estate business of Reckson Associates, the predecessor of the Operating Partnership, its affiliated partnerships and other entities (“Reckson”). On August 3, 2006, we entered into an Agreement and Plan of Merger with SL Green Realty Corp., which agreement is further discussed below. Unless the context requires otherwise, the terms “Company”, “we”, “us”, “our” and similar terms include Reckson Associates Realty Corp., Reckson Operating Partnership, L. P. and their wholly-owned subsidiaries.
Reckson was engaged in the ownership, management, operation, leasing and development of commercial real estate properties, principally office and industrial / R&D buildings, and also owned undeveloped land located primarily on Long Island, New York. In June 1995, the Company completed an initial public offering (the “IPO”), succeeded to the Reckson’s real estate business and commenced operations.
The Operating Partnership is engaged in the ownership, management, operation, acquisition, leasing, financing and development of commercial real estate properties, principally office and to a lesser extent flex properties and also owns land for future development located in New York City and the surrounding tri-state area markets (the “New York Tri-State Markets”).
The Operating Partnership’s growth strategy is focused on the commercial real estate markets in and around the New York Tri-State Markets. All of our interests in our real properties, land held for development and investments in mortgage notes and notes receivable are held directly or indirectly by, and all of our operations are conducted through the Operating Partnership.
In connection with the IPO, we were granted an option to acquire the property located at 225 Broadhollow Road (the “225 Property”) which is owned by certain Rechler family members including Scott H. Rechler, our CEO at a price based upon an agreed upon formula. Reckson Management Group, Inc. (“RMG”) is currently obligated to the owner of the 225 Property under an operating lease through November 2006 at an annual base rent of approximately $809,000. The lease is for approximately 26,000 square feet of office space and was used as our corporate headquarters. In August 2006 we relocated our corporate headquarters to Reckson Plaza, a wholly owned property located in Uniondale, Long Island. During June 2006, we incurred approximately $211,000 of expense related to the repair of certain HVAC equipment at the 225 Property. Such expenditure was approved by the independent members of the Board of Directors. RMG currently leases 10,722 square feet of warehouse space used for equipment, materials and inventory storage at a property owned by certain members of the Rechler family at an annual base rent of approximately $81,000. In addition, commencing April 1, 2004, RCD leased approximately 17,000 square feet of space at the 225 Property at an annual base rent of approximately $507,000, which terminated on September 30, 2006. RCD had sub-let the entire 17,000 square feet to a third party for approximately $35,000 per month through RCD’s September 2006 lease termination date. RCD also relocated to Reckson Plaza in August 2006.
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During the three and nine month periods ended September 30, 2006 and 2005, RCD billed approximately $66,000 and $96,000 and $16,000 and $32,000, respectively, of market rate services and RMG billed approximately $76,000 and $229,000 and $75,000 and $217,000, respectively, of market rate management fees to certain properties owned by members of the Rechler family including Scott H. Rechler, our CEO.
On March 28, 2005, an entity (“REP”) owned by members of the Rechler family (excluding Scott H. Rechler, but including his father, Roger, and brother, Gregg) exercised a Right of First Refusal (which was granted in connection with the 2003 sale of the industrial portfolio by us) to acquire a vacant parcel of land for a purchase price of $2.0 million. We agreed to provide REP with the option to defer the closing on the purchase until September 2006, for a non-refundable deposit of $400,000 and a fee of $10,666 per month for each month that the closing was deferred. In connection therewith, REP agreed to settle a dispute concerning an easement on a separate parcel of land owned by us adjacent to one of the properties transferred to REP in November 2003. The vacant parcel of land was sold to REP on September 29, 2006.
A company affiliated with an independent director of the Company formally leased 15,566 square feet in a property owned by us at an annual base rent of approximately $430,000. Such lease has expired and we are currently in the process of renewing the lease for approximately 8,000 square feet upon market terms through 2011. Such renewal is subject to approval by the other independent directors of the Company’s Board of Directors. In addition, since the lease’s expiration, the lessee has been operating consistent with terms of the expired lease.
In May 2005, we acquired a 1.4 million square foot, 50-story, Class A office tower located at One Court Square, Long Island City, NY. On November 30, 2005, we sold a 70% joint venture interest in One Court Square to certain institutional funds advised by JPMorgan Investment Management (the “JPM Investor”). The operating agreement of the Court Square JV requires approvals from members on certain decisions including annual budgets, sale of the property, refinancing of the property’s mortgage debt and material renovations to the property. In addition, after September 20, 2009 the members each have the right to recommend the sale of the property, subject to the terms of the mortgage debt, and to dissolve the Court Square JV. We have evaluated the impact of FIN 46R on our accounting for the Court Square JV and have concluded that the Court Square JV is not a VIE. We account for the Court Square JV under the equity method of accounting. We have also evaluated and determined that under Issue 04-5 the JPM Investor has substantive participating rights in the ordinary course of the Court Square JV’s business. In accordance with the equity method of accounting, our proportionate share of the Court Square JV income was approximately $45,000 and $155,000 for the three and nine months ended September 30, 2006, respectively.
On August 18, 2005, we entered into (i) an underwriting agreement relating to the public offering in Australia of approximately A$263.0 million (approximately US$202.0 million) of units (“LPT Units”) in a newly-formed Reckson-sponsored Australian listed property trust, Reckson New York Property Trust (“Reckson LPT”), a newly-formed listed property trust which is traded on the Australian Stock Exchange and (ii) contribution and sale agreements pursuant to which, among other things, we agreed to transfer 25 of our properties for an aggregate purchase price of approximately $563.0 million and containing an aggregate of 3.4 million square feet, in three separate tranches, to the Australian JV in exchange for a 25% interest in the Australian JV and approximately $502.0 million in cash (inclusive of proceeds from mortgage debt to be assumed by the Australian JV). On September 21, 2005, Reckson LPT completed its public offering and the closing of the first of three tranches (“Tranche I”) of this transaction.
In connection with the Tranche I closing, the Australian JV acquired from us 17 of our suburban office properties containing approximately 2.0 million square feet for approximately $367.0 million (including the assumption of approximately $196.1 million in mortgage debt which had been incurred by us in August 2005). In return, we received a 25% interest in the Australian JV and approximately $128.1 million in cash resulting in an aggregate gain of approximately $103.6 million. As discussed below relating to certain guarantees we have made, approximately $18 million of the aggregate gain has been deferred to future periods pursuant to Statement No. 66 to coincide with the release of the guarantees. As a result, gains on sales of real estate reported in 2005, related to theTranche I closing was approximately $86.1 million. Approximately $22.0 million of the cash received was used to repay certain of our secured mortgage indebtedness on September 30, 2005 and approximately $105.7 million of the cash received was used to establish an escrow account with a qualified intermediary for a future exchange of real property pursuant to Section 1031 of the Code (a “Section 1031 Exchange”). A Section 1031 Exchange allows for the deferral of taxes related to the gain attributable to the sale of property if a qualified replacement property is identified within 45 days and such qualified replacement property is acquired within 180 days from the initial sale. On October 7, 2005 we acquired a qualified replacement property for purposes of this Section 1031 Exchange and thereby deferred a portion of the tax gain from the Tranche I sale.
In connection with the foregoing, on September 21, 2005, Reckson Australia Holdings LLC (“Reckson Holdings”), a wholly-owned subsidiary of the Operating Partnership, and Reckson Australia LPT Corporation (“LPT REIT”), a U.S. real estate investment trust which is wholly-owned by Reckson LPT, entered into the Amended and Restated Limited Liability Company Agreement governing the Australian JV (the “Operating Agreement”). Pursuant to the Operating Agreement, LPT REIT holds a 75% interest in, and acts as the managing member for, the Australian JV, and Reckson Holdings holds a 25% non-managing member interest therein. The Operating Agreement provides that, if at any time additional capital contributions are made to the Australian JV, Reckson Holdings will have a right to make additional capital contributions up to an amount necessary to maintain its 25% interest therein on the same terms and conditions as such other capital contributions.
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As the managing member of the Australian JV, LPT REIT has the sole responsibility for managing its business and affairs on a day-to-day basis, other than with respect to certain identified “major decisions,” including but not limited to a merger or consolidation involving the Australian JV, a disposition of all or substantially all of its assets, or the liquidation or dissolution of the Australian JV. Such major decisions require the prior written consent of a majority of the non-managing members. As a result of the foregoing, we are accounting for our 25% non-managing member interest in the Australian JV under the equity method of accounting. In accordance with the equity method of accounting, our proportionate share of the Australian JV’s income was approximately $516,000 and $2.4 million for the three and nine months ended September 30, 2006, respectively.
On January 6, 2006, Reckson LPT completed the second Tranche of this transaction (“Tranche II”) whereby the Australian JV acquired three of our suburban office properties: 6800 and 6900 Jericho Turnpike, Syosset, NY and 710 Bridgeport Avenue, Shelton, CT, (the “Tranche II Properties”) aggregating approximately 761,000 square feet for approximately $84.6 million, including the assignment of approximately $20.1 million of mortgage debt and approximately $64.5 million in cash. As a result, gains on sales of real estate related to Tranche II is approximately $35.4 million. Approximately $25.1 million of sales proceeds was used to establish an escrow account for the purpose of a future Section 1031 Exchange. During May 2006 we terminated the Section 1031 Exchange and received the sales proceeds previously held by the qualified intermediary, including accrued interest. Such proceeds were used to repay outstanding borrowings under our Credit Facility. The balance of the cash proceeds, received at the time of the sale was used to fund our development activities and for general corporate purposes. For federal income tax purposes we recognized a tax gain of approximately $26.7 million. We do not anticipate that such tax gain will require us to distribute more than our regular quarterly distribution in order to satisfy the distribution requirements necessary for the Company to qualify as a REIT.
The Tranche III closing (“Tranche III”), consisting of five of our suburban office properties valued at approximately $111.8 million, closed on October 6, 2006. The “Tranche III Properties” aggregated approximately 623,000 square feet and consisted of: 520 Broadhollow Road, 50 Marcus Avenue, 1660 Walt Whitman Road, all of which are located in Melville, NY, 580 White Plains Road, Tarrytown, NY and 300 Executive Park Drive, West Orange, NJ (collectively, the “Tranche III Properties”). Proceeds from the Tranche III closing included the assignment of approximately $63.3 million of mortgage debt, additional equity in the Australian JV of approximately $18.3 million and cash of approximately $30.2 million. Net cash proceeds received were used to repay outstanding borrowings under our Credit Facility and for general corporate purposes.
Our Service Companies provide asset management, property management, leasing, construction and other services to the Australian JV. Affiliates of ours are entitled to transaction fees and ongoing fees for providing services to the Australian JV. During January 2006, in connection with the Tranche II closing we earned and received approximately $819,000 in transaction related fees. Also, during the three and nine months ended September 30, 2006 we earned and received approximately $1.1 million and $3.5 million, respectively of ongoing service related fees. Such amounts are included in investment income and other on our consolidated statements of income. In addition, we also formed Reckson Australia Management Limited (“RAML”), a wholly owned subsidiary, that will manage Reckson LPT and serve as its “Responsible Entity”. The Responsible Entity will be managed by a six member board that includes three independent directors domiciled in Australia and three of the Company’s executive officers. To address and mitigate any potential conflicts of interest with Reckson LPT or its affiliates the Company has adopted the following policies: (i) all transactions between the Company and Reckson LPT or its affiliates shall require the approval of a majority of the independent directors of both the Company and Reckson LPT, (ii) executive officers and directors of the Company are prohibited from owning equity in Reckson LPT, and (iii) the adoption of an express policy which mandates that property services and leasing decisions shall be made without regard to the Company’s percentage ownership of any property.
Under the Operating Agreement, Reckson Holdings will have the right, beginning September 21, 2007, to require LPT REIT to redeem all or a portion of Reckson Holdings’ membership interest in the Australian JV for cash or, at LPT REIT’s option, shares of LPT REIT’s common stock (which may be exchanged for LPT Units) on a one-for-one basis. Reckson Holdings also has the right to cause the liquidation of the Australian JV in the event that RAML is replaced as Reckson LPT’s Responsible Entity. In addition, the Operating Agreement contains a right of first refusal granting Reckson Holdings the right to acquire any asset of the Australian JV, at fair market value, in the event of an attempted sale of such asset or the exercise of Reckson Holdings’ right to liquidate the Australian JV.
In connection with the Tranche I closing, on September 21, 2005, the Company, the Australian JV and LPT REIT entered into an Option Agreement (the “Option Agreement”) pursuant to which we granted the Australian JV options to acquire ten additional properties from the Operating Partnership over a two year period, beginning January 1, 2006. The properties contain an aggregate of approximately 1.2 million square feet and will be priced based on the fair market value of the properties at the time the option is exercised. The Option Agreement contains a right of first refusal granting the Australian JV the right to acquire any option property from Reckson in the event we receive, and are amenable to, an offer from a third party to purchase such option property. The Option Agreement will terminate under certain circumstances.
In connection with the mortgage indebtedness securing nine of the Tranche I properties, which were transferred to the Australian JV on September 21, 2005, and three of the Tranche III properties which were transferred to the Australian JV on October 6, 2006, we have guaranteed to the lender certain customary non-recourse carve-outs, as well as certain obligations relating to the potential termination of a number of leases at four of these properties. We have also guaranteed to the lender certain capital requirements related to these properties. We will be relieved of the customary non-recourse carve-outs and capital requirements upon transfer of the respective properties to the Australian JV and the Australian JV meeting a net worth test of at least $100.0 million. We will be relieved of all but two of the lease related obligations upon transfer of the respective properties to the Australian JV and the Australian JV meeting a net worth test of at least $200.0 million. The Australian JV has agreed to indemnify us for any loss, cost or damage it may incur pursuant to our guaranty of these obligations. The Australian JV has met the $100.0 million net worth threshold and there remain approximately $18 million of aggregate guarantees outstanding.
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In accordance with FASB Statement No. 144, the assets and liabilities of the properties transferred and to be transferred, excluding the option properties, to the Australian JV are classified as held for sale on our consolidated balance sheets, for all periods presented.
During September 2005, we entered into a letter of intent with an entity owned by the owner of the New York Islanders professional hockey team to enter into a 50 / 50 joint venture to potentially develop over five million square feet of office, residential, retail and hotel space located on 77 acres in the Mitchel Field, Long Island sub-market in and around Nassau County’s Veterans Memorial Coliseum where we are currently the largest owner of office properties. In March 2006, the joint venture was selected by the County Executive for the development of the 77 acre site. In May 2006, the County Executive and the joint venture entered into a memorandum of understanding for the development of the site. In September 2006, the term of the memorandum of understanding was extended through December 29, 2006. There can be no assurances that a definitive agreement will be executed with Nassau County prior to the expirations of the term of the memorandum of understanding or at any time thereafter. The development will also be subject to certain conditions and governmental approvals, including legislative, zoning and other customary approvals. In addition, there can be no assurances that we will enter into the aforementioned joint venture, that all applicable conditions will be satisfied or that all required approvals can be obtained.
On March 7, 2006, we sold our 354,000 square foot office building in Orlando, Florida for aggregate consideration of approximately $70.0 million which resulted in a gain of approximately $9.5 million. Such gain is reflected as a component of discontinued operations on our consolidated statements of income. This non-core real estate holding was acquired in May 1999 in connection with our initial New York City portfolio acquisition. Net proceeds from the sale were used to establish an escrow account with a qualified intermediary for a future Section 1031 Exchange. During May 2006 we terminated the Section 1031 Exchange and received the sales proceeds previously held by the qualified intermediary, including accrued interest. Such proceeds were used to repay outstanding borrowings under our Credit Facility. For federal income tax purposes we recognized a tax gain of approximately $5.2 million. We do not anticipate that such tax gain will require us to distribute more than our regular quarterly distribution in order to satisfy the distribution requirements necessary for the Company to qualify as a REIT.
On March 31, 2006, we sold a 161,000 square foot office building located in Westchester County for $35.3 million. Sales proceeds received were used for the repayment of the mortgage note encumbering the property located at 1350 Avenue of the Americas in New York, NY. This non-core real estate holding was acquired in December 2005 as part of a 14 office property portfolio acquisition.
On March 31, 2006, a group of institutional investors led by JPMorgan Investment Management, our joint venture partner in the Court Square JV and the property located at 919 Third Avenue, NY, purchased our option to acquire the existing minority partners’ 40% partnership interest in the Omni Property for net proceeds of approximately $9.0 million. Such proceeds have been included in investment income and other on our consolidated statements of income. In connection with this transaction, the original minority partner repaid to us approximately $22.1 million representing amounts due under a note receivable which was secured by their interest in the Omni Property. Such aggregate proceeds to us of approximately $31.2 million were used for the repayment of the mortgage note encumbering the property located at 1350 Avenue of the Americas in New York, NY.
As of September 30, 2006, we owned and operated 93 office properties (inclusive of twenty-six office properties owned through joint ventures) comprising approximately 19.3 million square feet and eight flex properties (inclusive of two flex properties owned through joint ventures) comprising approximately 863,000 square feet located in the New York Tri-State Markets.
We also own certain land parcels throughout our markets in the New York Tri-State Markets (the “Development Parcels”). During July 2005, we commenced the ground-up development on one of the Development Parcels of a 37,000 square foot Class A retail property located within our existing six building Landmark Square office park in Stamford, Connecticut. In August 2005, we recommenced the ground-up development of one of the Development Parcels of a 313,000 square foot Class A office building located within our existing three building office park located in Princeton, NJ. One of our Development Parcels, aggregating approximately 4.1 acres was sold in September 2006 for aggregate consideration of $2.0 million. As a result, we recognized a gain on sales of real estate of approximately $757,000. Excluding the foregoing, at September 30, 2006 our inventory of Development Parcels aggregated approximately 305 acres of land in 9 separate parcels in which we had invested approximately $127.3 million.
Management has made subjective assessments as to the value and recoverability of our investments in the Development Parcels based on current and proposed development plans, market comparable land values and alternative use values. Based on these assessments, we believe there is no impairment to the carrying value of the Development Parcels.
Plan of Merger with SL Green Realty Corp.
On August 3, 2006, the Company, the Operating Partnership, SL Green Realty Corp. (“Parent”), Wyoming Acquisition Corp. (“Purchaser”), Wyoming Acquisition GP LLC and Wyoming Acquisition Partnership LP entered into an Agreement and Plan of Merger (the “Merger Agreement”). Under the terms of the Merger Agreement, the Company will merge with and into Purchaser (the “Merger”), with Purchaser continuing after the Merger as the surviving entity. The Company has called a special meeting of shareholders to be held at 10:30 a.m. local time on November 22, 2006 at which it will seek shareholder approval of the Merger Agreement and the transactions contemplated thereby. Shareholders of record as of the close of business on October 13, 2006 will be entitled to vote at the special meeting. At the effective time of the Merger, each of the issued and outstanding shares of common stock of the Company will be converted into the right to receive (i) $31.68 in cash, and (ii) 0.10387 of a share of the common stock, par value $0.01 per share, of Parent (the “Merger Consideration”).
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In addition, under the terms of the Merger Agreement, Wyoming Acquisition LP will merge with and into the Operating Partnership (the “Partnership Merger”), with the Operating Partnership continuing after the Partnership Merger as the surviving entity. At the effective time of the Partnership Merger, each common unit in the Operating Partnership will be converted into the right to receive the applicable amount of Merger Consideration, in respect of the number of shares of Reckson common stock issuable upon exchange of each such common unit in accordance with the Amended and Restated Agreement of Limited Partnership of the Operating Partnership as if such common units were converted or exchanged for an equal number of Reckson common shares immediately prior to the effective time of the Merger.
Consummation of the Merger is subject to customary conditions, including the approval of the Merger by the holders of the Company’s common stock, the registration of SL Green’s shares of common stock to be issued in the Merger, the listing of such shares on the New York Stock Exchange and the absence of any order, injunction or legal restraint or prohibition preventing the consummation of the Merger. In addition, each party’s obligation to consummate the Merger is subject to certain other conditions, including (i) the accuracy of the representations and warranties of the other party (subject to the materiality standards contained in the Merger Agreement), (ii) compliance in all material respects of the other party with its covenants, (iii) the absence of a material adverse effect (as defined in the Merger Agreement) on the other party and (iv) the delivery of opinions with respect to each other’s status as a real estate investment trust.
Note Receivable Investments
On July 27, 2006, we advanced $20.0 million under a loan agreement which is secured by certain pledges of project income and ownership interests and a personal guarantee of an affiliate of the borrower. This loan matures in August 2009 and bears interest at 15% per annum (10% annual pay rate and 5% monthly compounded deferred rate). The loan is pre-payable at any time with yield maintenance through August 1, 2007 if pre-paid prior to August 2007. This investment was funded through a borrowing under our Credit Facility.
On August 10, 2006, we advanced $10.0 million under a loan agreement which is secured by certain pledges of project income and ownership interests and a personal guarantee of an affiliate of the borrower. This loan matures in August 2009 and bears interest at 15% per annum (10% annual pay rate and 5% monthly compounded deferred rate). The loan is pre-payable at any time with yield maintenance through August 15, 2007 if pre-paid prior to such date. This investment was funded through a borrowing under our Credit Facility.
At September 30, 2006, we had invested approximately $123.4 million in mezzanine loans and approximately $70.9 million in other loan investments (collectively, the “Note Receivable Investments”). In general these investments are secured by a pledge of either a direct or indirect ownership interest in the underlying real estate or leasehold, a first mortgage, other guaranties, pledges and assurances.
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The following table sets forth the terms of the mezzanine loans at September 30, 2006 (in thousands):
Property | | Amount | | Interest
Rate | | Funding | | Maturity | |
| |
| |
| |
| |
| |
Long Island office portfolio | | $ | 8,031 | | 9.00 | % | Mar., 2005 | | Apr., 2010 | (a) |
Long Island office portfolio | | | 20,356 | | 9.00 | % | Mar., 2005 | | Apr., 2012 | (a) |
72 Madison Avenue, NY, NY (b) | | | 10,000 | | 20.00 | % | Oct., 2005 | | Oct., 2007 | |
1166 Avenue of the Americas, NY, NY (c) | | | 25,000 | | 17.50 | % | Nov., 2005 | | Nov., 2009 | |
100 Wall Street, NY, NY | | | 30,000 | | 15.00 | % | Dec., 2005 | | Dec., 2007 | |
221 Main Street, White Plains, NY | | | 20,000 | | 15.00 | % | Jul., 2006 | | Aug., 2009 | |
175 Huguenot Street, New Rochelle, NY | | | 10,000 | | 15.00 | % | Aug., 2006 | | Aug., 2009 | |
| |
|
| | | | | | | |
| | $ | 123,387 | | | | | | | |
| |
|
| | | | | | | |
(a) | Prepayable without penalty. |
(b) | In addition to this mortgage loan, Reckson Construction and Development, LLC (“RCD”) entered into a development agreement with the owner of the property to perform certain predevelopment, development and / or other services with respect to the property. In exchange for its services, RCD will receive a development fee of $2.0 million which is payable in equal monthly installments over a two-year period which commenced during October 2005. |
(c) | Junior mezzanine loan secured by interests in a 550,000 square foot condominium interest. |
In May 2005 we funded $55.3 million under an $85.0 million participating loan investment which is secured by an indirect interest in a 550,000 square foot condominium in a Class A office tower located at 1166 Avenue of the Americas, New York, NY. The loan accrues interest compounded at 9.0% and pays interest at an annual rate of 6.0% through March 2010, 8.5% thereafter through March 2015 and 11.0% thereafter through maturity in 2020. The loan is pre-payable only under certain circumstances and, in any case, not before 2009. Upon a capital event related to the indirect interest in the property which secures the loan, we are entitled to participate in 30% of the net proceeds derived from such capital event.
On March 30, 2006, we advanced approximately $14.2 million under three separate loan agreements which are secured by certain flex properties, aggregating approximately 450,000 square feet, located in Nassau County, Long Island and in part by a personal guarantee of an affiliate of the borrower. These loans have an initial weighted average interest rate of 15.3% and mature on April 1, 2008. In addition, the loans are not prepayable, without penalty, prior to October 1, 2007.
At September 30, 2006, we held one other note receivable, which aggregated $1.0 million and carried an interest rate of 10.50% per annum. This note receivable matures on January 31, 2010 and is secured in part by a minority partner’s preferred unit interest in the Operating Partnership.
The following table sets forth the terms of our other loan investments at September 30, 2006 (in thousands):
Property | | Amount | | Interest Rate | | Funding | | Maturity | |
| |
| |
| |
| |
| |
NYC Class A office condominium interest | | $ | 55,250 | | 9.00 | % | May, 2005 | | Apr., 2008 | |
Flex property located in Nassau County, Long Island | | | 14,188 | | 15.29 | % | Mar., 2006 | | Dec., 2020 | |
Other | | | 1,000 | | 10.50 | % | Oct., 2004 | | Jan., 2010 | |
Other | | | 500 | | 5.35 | % | Dec., 2004 | | Dec., 2009 | |
| |
|
| | | | | | | |
| | $ | 70,938 | | | | | | | |
| |
|
| | | | | | | |
As of September 30, 2006, management has made subjective assessments as to the underlying security value on the Note Receivable Investments. Based on these assessments, we believe there is no impairment to their carrying value.
Our market capitalization at September 30, 2006 was approximately $5.6 billion. Our market capitalization is based on the sum of (i) the market value of the Company’s common stock and OP Units (assuming conversion) of $42.80 per share / unit (based on the closing price of the Company’s common stock on September 30, 2006), (ii) the liquidation preference value of the Operating Partnership’s preferred units of $1,000 per unit and (iii) approximately $2.0 billion (net of minority partners’ interests’ share of consolidated joint venture debt and including our share of consolidated and unconsolidated joint venture debt) of debt outstanding at September 30, 2006. As a result, our total debt to total market capitalization ratio at September 30, 2006 equaled approximately 35.3%.
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Results of Operations
The following table is a comparison of the results of operations for the three month period ended September 30, 2006 to the three month period ended September 30, 2005 (dollars in thousands):
| | Three months ended September 30, | |
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| |
| | | | | | Change | |
| | | | | |
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| | 2006 | | 2005 | | Dollars | | Percent | |
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| |
Property Operating Revenues: | | | | | | | | | | | | |
Base rents | | $ | 118,584 | | $ | 122,693 | | $ | (4,109 | ) | (3.3 | )% |
Tenant escalations and reimbursements | | | 22,310 | | | 21,055 | | | 1,255 | | 6.0 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Total property operating revenues | | $ | 140,894 | | $ | 143,748 | | $ | (2,854 | ) | (2.0 | )% |
| |
|
| |
|
| |
|
| | | |
Property Operating Expenses: | | | | | | | | | | | | |
Operating expenses | | $ | 41,002 | | $ | 35,687 | | $ | 5,315 | | 14.9 | % |
Real estate taxes | | | 25,525 | | | 22,653 | | | 2,872 | | 12.7 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Total property operating expenses | | $ | 66,527 | | $ | 58,340 | | $ | 8,187 | | 14.0 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Interest and Investment Income and other | | $ | 9,903 | | $ | 10,361 | | $ | (458 | ) | (4.4 | )% |
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|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Other Expenses: | | | | | | | | | | | | |
Interest expense incurred | | $ | 27,531 | | $ | 31,982 | | $ | (4,451 | ) | (13.9 | )% |
Amortization of deferred financing costs | | | 1,071 | | | 1,021 | | | 50 | | 4.9 | % |
Marketing, general and administrative | | | 9,551 | | | 8,136 | | | 1,415 | | 17.4 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Total other expenses | | $ | 38,153 | | $ | 41,139 | | $ | (2,986 | ) | (7.3 | )% |
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|
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|
| |
|
| | | |
Our property operating revenues, which include base rents and tenant escalations and reimbursements (“Property Operating Revenues”), decreased by $2.9 million or 2.0% for the three months ended September 30, 2006 as compared to the 2005 period. The decrease is primarily a result of a $24.8 million decrease in Property Operating Revenues from the sales of the Tranche I Properties in September 2005, 100 Wall Street in December 2005, the Tranche II Properties in January 2006 and One Orlando Center in March 2006. This decrease was off-set by an $18.9 million increase in Property Operating Revenues from the acquisitions of the “Eastridge Portfolio” which currently consists of thirteen suburban office properties located in Westchester County, containing approximately 1.4 million square feet and Reckson Plaza a 1.1 million square foot office property located in Uniondale, Long Island. Both the Eastridge Portfolio and Reckson Plaza were acquired in the fourth quarter of 2005. In addition, we also benefited by a $3.0 million increase in Property Operating Revenues attributable to straight line rental revenue increases in our same-store properties.
Our property operating expenses, real estate taxes and ground rents (“Property Expenses”) increased by $8.2 million or 14.0% for the three months ended September 30, 2006 as compared to the 2005 period. The increase is primarily a result of a $10.7 million increase in operating expenses and real estate taxes from the acquisitions of the Eastridge Portfolio and Reckson Plaza and a $5.7 million increase in operating expenses and real estate taxes in our same-store properties. These aggregate increases of approximately $16.4 million were offset by an $8.2 million decrease in Property Expenses from the aforementioned property sales. The increase in real estate taxes is attributable to higher taxes being levied by the municipalities in which the properties are located. The increase in property expenses is primarily driven by the recent increases in energy costs and a reset of the ground rent at one of our New York City assets.
Gross operating margins (defined as Property Operating Revenues less Property Expenses, taken as a percentage of Property Operating Revenues) for the three month periods ended September 30, 2006 and 2005 were 52.8% and 59.4%, respectively. The decrease in our gross margins reflects the performance of the Eastridge Porfolio which was acquired with below market occupancy levels. The addition of these properties resulted in a decrease in occupancy for our portfolio. In addition, we have experienced increases in real estate taxes and operating costs in our core portfolio, particularly energy costs, which were not entirely billable to our tenants.
Interest and Investment income and other decreased by $458,000 for the three months ended September 30, 2006 as compared to the 2005 period. The decrease is primarily attributable to a decrease of $3.3 million in transaction fees earned during the 2005 period related to the Australian JV’s Tranche I closing. We also experienced decreases in Service Company income and decreases in tenant related services These decreases were offset by increases in interest income earned on our Note Receivable Investments of $2.2 million due to a weighted average increase in our Note Receivable Investments of approximately $53.6 million from the 2005 period, a net increase in prior period net property tax and utility refunds of $1.6 million primarily related to four of our operating properties located in Westchester, New York, and $779,000 in management fees earned during the 2006 period related to the Australian and Court Square JV’s.
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Interest expense incurred decreased by approximately $4.5 million for the three months ended September 30, 2006 as compared to the 2005 period. The net decrease in interest expense is a result of decreases in interest expense of $213,000 incurred under our same-store mortgage portfolio, a decrease in mortgage interest expense of $3.4 million incurred during the 2005 period as a result of four mortgage notes being subsequently satisfied and from nine properties which were financed during September 2005 and subsequently contributed to the Australian JV, a decrease of $2.5 million in mortgage interest expense which related to the property located at One Court Square, Long Island City, NY which was subsequently sold to an unconsolidated joint venture in November 2005, $409,000 of mortgage interest expense related to two properties which were contributed to the Australian JV on January 6, 2006, subject to their debt, a decrease of $2.3 million incurred under an unsecured bridge facility which was funded in May 2005 and repaid in September 2005, an increase of $301,000 in capitalized interest due to increased development activities and a decrease of $170,000 in other interest expense. These aggregate decreases of $9.3 million were off-set by a $4.2 million increase incurred from the Operating Partnership’s issuance of $275.0 million of senior unsecured debentures in March 2006, an increase of $467,000 incurred from our financing of three properties during September 2005 which were contributed to the Australian JV in October 2006 and $168,000 of mortgage interest expense incurred on a property which we acquired, subject to the debt in October 2005.
Marketing, general and administrative expenses increased by $1.4 million for the three months ended September 30, 2006 as compared to the 2005 period. This overall net increase is attributable to increased costs of maintaining offices and infrastructure in each of our five divisional markets, operating as a public company and higher compensation costs including amortization expense related to restricted stock awards to executive and non-executive officers. Marketing, general and administrative costs represented 6.3% of total revenues from continuing operations (excluding gains on sales of depreciable real estate assets) in the 2006 period as compared to 5.3% in the 2005 period.
During the September 2006 quarterly period, we incurred a $2.1 million charge related to our long-term incentive compensation plan with no comparable charge during the September 2005 quarterly period. For a further discussion of this charge, see “Other Matters” of this Item 2.
Discontinued operations, net of minority interests decreased by approximately $14.3 million for the three months ended September 30, 2006 as compared to the 2005 period. This decrease is attributable to the results of operations for those properties held for sale during the 2005 period of $1.5 million with no amounts applicable to the 2006 period and a decrease in gains on sales of real estate of $12.9 million related to those properties sold during the respective periods and classified as held for sale.
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The following table is a comparison of the results of operations for the nine month period ended September 30, 2006 to the nine month period ended September 30, 2005 (dollars in thousands):
| | Nine months ended September 30, | |
| |
| |
| | | | | | Change | |
| | | | | |
| |
| | 2006 | | 2005 | | Dollars | | Percent | |
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| |
| |
| |
| |
Property Operating Revenues: | | | | | | | | | | | | |
Base rents | | $ | 363,244 | | $ | 353,151 | | $ | 10,093 | | 2.9 | % |
Tenant escalations and reimbursements | | | 60,613 | | | 56,157 | | | 4,456 | | 7.9 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Total property operating revenues | | $ | 423,857 | | $ | 409,308 | | $ | 14,549 | | 3.6 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Property Operating Expenses: | | | | | | | | | | | | |
Operating expenses | | $ | 109,807 | | $ | 96,806 | | $ | 13,001 | | 13.4 | % |
Real estate taxes | | | 73,929 | | | 65,493 | | | 8,436 | | 12.9 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Total property operating expenses | | $ | 183,736 | | $ | 162,299 | | $ | 21,437 | | 13.2 | % |
| |
|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Interest and Investment Income and other | | $ | 35,310 | | $ | 17,275 | | $ | 18,035 | | >100.0 | % |
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|
| |
|
| |
|
| | | |
| | | | | | | | | | | | |
Other Expenses: | | | | | | | | | | | | |
Interest expense incurred | | $ | 82,736 | | $ | 82,807 | | $ | (71 | ) | (.1 | )% |
Amortization of deferred financing costs | | | 3,210 | | | 3,080 | | | 130 | | 4.2 | % |
Marketing, general and administrative | | | 28,508 | | | 24,372 | | | 4,136 | | 17.0 | % |
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|
| |
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| |
|
| | | |
| | | | | | | | | | | | |
Total other expenses | | $ | 114,454 | | $ | 110,259 | | $ | 4,195 | | 3.8 | % |
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|
| |
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| | | |
Property Operating Revenues increased by $14.6 million or 3.6% for the nine months ended September 30, 2006 as compared to the 2005 period. The increase is a result of a $65.0 million increase in Property Operating Revenues from the acquisitions of the Eastridge Portfolio and Reckson Plaza in the fourth quarter of 2005, $10.0 million attributable to straight line rental revenue increases in our same-store properties. In addition, during the 2006 period we earned approximately $12.6 million in lease termination fee revenue as opposed to $1.6 million earned during the 2005 period. These aggregate increases of approximately $86.0 million were offset by a $71.4 million decrease in Property Operating Revenues from the sale of the Tranche I Properties in September 2005, 100 Wall Street in December 2005, the Tranche II Properties in January 2006 and One Orlando Center in March 2006.
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Property Expenses increased by $21.4 million or 13.2% for the nine months ended September 30, 2006 as compared to the 2005 period. The increase is a result of a $28.4 million increase in operating expenses and real estate taxes from the acquisitions of the Eastridge Portfolio and Reckson Plaza and a $15.2 million increase in operating expenses and real estate taxes in our same-store properties. These aggregate increases of approximately $43.6 million were offset by a $22.2 million decrease in Property Expenses from the aforementioned property sales. The increase in real estate taxes is attributable to higher taxes being levied by the municipalities in which the properties are located. The increase in property expenses is primarily driven by the recent increases in energy costs and a reset of the ground rent at one of our New York City assets.
Gross operating margins for the nine month periods ended September 30, 2006 and 2005 were 56.7% and 60.3%, respectively. Our 2006 gross operating margin, before lease termination fee revenue was 55.3%. The decrease in our gross margins reflects the performance of the Eastridge Portfolio which was acquired with below market occupancy levels. The addition of these properties resulted in a decrease in occupancy for our portfolio. In addition, we have experienced increases in real estate taxes and operating costs in our core portfolio, particularly energy costs, which were not entirely billable to our tenants.
Interest and Investment income and other increased by $18.0 million for the nine months ended September 30, 2006 as compared to the 2005 period. This increase is primarily a result of the sale in March 2006 of our option to acquire the minority partner’s 40% partnership interest in the Omni Property for net consideration of approximately $9.0 million. In addition, this increase is attributable to an increase in interest income earned on our Note Receivable Investments of $7.4 million which resulted from a weighted average increase in our Note Receivable Investments of approximately $59.0 million from the 2005 period, a net increase in prior period net property tax and utility refunds of $1.5 million primarily related to four of our operating properties located in Westchester, New York, a $3.0 million increase in management fees earned related to the Australian and Court Square JV’s, and an increase in interest income of $1.1 million related to property sales proceeds held pursuant to Section 1031 Exchanges. These aggregate increases of $22.0 million were offset by a $1.8 million decrease in transaction fees earned related to the Australian JV Tranche II closing in January 2006 and the Tranche I closing in September 2005. We also experienced decreases in Service Company income and decreases in tenant related services.
Interest expense incurred decreased by approximately $71,000 for the nine months ended September 30, 2006 as compared to the 2005 period. The net decrease in interest expense is a result of decreases in interest expense of $552,000 incurred under our same-store mortgage portfolio, a decrease in mortgage interest expense of $6.0 million incurred during the 2005 period as a result of four mortgage notes being subsequently satisfied and from nine properties which were financed during September 2005 and subsequently contributed to the Australian JV, a decrease of $2.5 million in mortgage interest expense which related to the property located at One Court Square, Long Island City, NY which was subsequently sold to an unconsolidated joint venture in November 2005, $1.2 million of mortgage interest expense related to two properties which were contributed to the Australian JV on January 6, 2006, subject to their debt, a decrease of $5.0 million incurred under an unsecured bridge facility which was funded in May 2005 for the acquisition of the property located at One Court Square in Long Island City, New York and which was repaid in September 2005, a decrease of $1.8 million incurred under our Credit Facility which resulted from a weighted average decrease in outstanding borrowings of approximately $51.0 million from the 2005 period, an increase of $2.0 million in capitalized interest due to increased development activities and a decrease of 323,000 in other interest expense. These aggregate decreases of $19.4 million were off-set by a $5.9 million increase incurred from the Operating Partnership’s issuance of $287.5 million of senior unsecured debentures in June 2005 and $8.2 million related to the Operating Partnership’s issuance of $275.0 million of senior unsecured debentures in March 2006. Interest expense also increased by $1.8 million incurred from our financing of three properties during September 2005 which were contributed to the Australian JV in October 2006, $504,000 of mortgage interest expense incurred on a property which we acquired, subject to the debt in October 2005 and $2.9 million incurred under an unsecured term loan, which was funded in January 2006, used to purchase the Eastridge portfolio and repaid later in the first quarter of 2006.
Marketing, general and administrative expenses increased by $4.1 million for the nine months ended September 30, 2006 as compared to the 2005 period. This overall net increase is attributable to increased costs of maintaining offices and infrastructure in each of our five divisional markets, operating as a public company and higher compensation costs including amortization expense related to restricted stock awards to executive and non-executive officers. Marketing, general and administrative costs represented 6.2% of total revenues from continuing operations (excluding gains on sales of depreciable real estate assets) in the 2006 period as compared to 5.7% in the 2005 period.
During the September 2006 period, we incurred a $7.9 million charge related to our long-term incentive compensation plan with no comparable charge during the September 2005 quarterly period. For a further discussion of this charge, see “Other Matters” of this Item 2.
Discontinued operations, net of minority interests decreased by approximately $8.3 million for the nine months ended September 30, 2006 as compared to the 2005 period. This decrease is attributable to a decrease in the results of operations for those properties held for sale during the respective periods of $4.5 million and a decrease in gains on sales of real estate of $3.8 million related to those properties sold during the respective periods and classified as held for sale.
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Liquidity and Capital Resources
Historically, rental revenue has been the principal source of funds to pay operating expenses, debt service and non-incremental capital expenditures, excluding incremental capital expenditures. We expect to meet our short-term liquidity requirements generally through our net cash provided by operating activities along with our $500 million unsecured credit facility (the “Credit Facility”) described below. The Credit Facility contains several financial covenants with which we must be in compliance in order to borrow funds thereunder. During the prior two years, we have incurred significant leasing costs in the form of tenant improvement costs, leasing commissions and free rent. This trend is a result of market demands from tenants and high levels of leasing transactions to re-tenant scheduled expirations or space vacated due to early terminations of leases. We are also expending costs on tenants that are renewing or extending their leases earlier than scheduled. For the nine month period ended September 30, 2006 and for the year ended December 31, 2005, we paid or accrued approximately $50.9 million and $67.7 million, respectively, for tenanting costs including tenant improvement costs and leasing commissions. Primarily, as a result of these factors, our cash available for distribution from operating activities was not sufficient to cover 100% of the dividends paid on our common equity. However, we are beginning to experience a moderation in the cost of re-tenanting our properties, primarily in terms of free rent concessions and costs to renew existing tenants. We are not yet experiencing significant reductions in the cost of re-leasing vacant or vacated space. Recently we have experienced an economic recovery in our markets, including an accelerated recovery in our New York City and Long Island markets. We are beginning to also see this trend in certain of our Stamford, Connecticut properties. This is resulting in rental rate increases which is positively impacting our cash flow. To meet the short-term funding requirements relating to the higher leasing costs, we have used proceeds from non-core property sales or borrowings under our Credit Facility. Based on our forecasted leasing, we anticipate that we will continue to incur shortfalls during the remainder of 2006 and into 2007. Subject to the restrictive covenants contained in the Merger Agreement, we currently intend to fund any shortfalls with proceeds from sales of non-income producing assets or borrowings under our Credit Facility. We periodically review our distribution policy to determine the appropriateness of our distribution rate relative to our cash flows. We adjust our distribution rate based on such factors as leasing activity, market conditions and forecasted increases and decreases in our cash flow as well as required distributions of taxable income to maintain the Company’s REIT status. The Merger Agreement contains limitations on our ability to make dividends and distributions. There can be no assurance that we will maintain the current quarterly distribution level on our common equity.
We are currently subject to the restrictive covenants contained in the Merger Agreement. As such we are limited in our ability to raise debt and equity capital and are financing our operations with cash flows and borrowings under our Credit Facility. Historically we have met most of our financing requirements through long-term unsecured borrowings and the issuance of debt and equity securities of the Operating Partnership or the Company, as the case may be. In certain situations, primarily in joint venture transactions, we use secured debt in connection with the acquisition of properties. During March 2006, the Operating Partnership issued $275 million of senior unsecured debt securities and during June 2005 issued $287.5 million of exchangeable senior debentures. There can be no assurance that there will be adequate demand for the Company’s equity at the time or at the price in which the Company desires to raise capital through the sale of additional equity. Similarly, there can be no assurance that the Operating Partnership will be able to access the unsecured debt markets at the time when the Operating Partnership desires to sell its unsecured notes. In addition, when valuations for commercial real estate properties are high, we will seek to sell non-core operating properties or certain land inventory to realize value and profit created, subject to the restrictive covenants contained in the Merger Agreement. We will then seek opportunities to reinvest the capital realized from these dispositions back into value-added assets in our core New York Tri-State Markets. However, there can be no assurances that we will be able to identify such opportunities that meet our underwriting criteria. Additionally, we have been actively seeking joint venture relationships to access new sources of equity capital. In September 2005, we completed a series of transactions whereby we sponsored the IPO of Reckson LPT, a newly-formed Australian listed property trust which is traded on the Australian Stock Exchange. Proceeds received from the IPO were used by Reckson LPT to form a joint venture with us, the Australian JV, and to purchase 17 of our properties. In addition, during January 2006, we sold three additional properties to the Australian JV and an additional five of our properties to the Australian JV during October 2006. The restrictive covenants contained in the Merger Agreement also limit our ability to purchase additional assets. Historically, our strategy has been to identify assets for potential acquisition within our New York Tri-State Markets. We have also completed joint venture transactions including the Australian JV. Joint ventures often involve relinquishing sole decision making authority relating to material events such as sale and financing. Loss of control of these decisions may adversely affect our financial flexibility, particularly relating to liquidating joint venture assets. There can be no assurances that we will be able to successfully execute this strategy.
Subject to the restrictive covenants contained in the Merger Agreement, we expect to refinance existing mortgage indebtedness, senior unsecured notes or indebtedness under our Credit Facility at maturity through the issuance of unsecured debt securities or additional equity securities. We anticipate that the current balance of cash and cash equivalents and cash flows from operating activities, together with cash available from borrowings, equity offerings and proceeds from sales of land and non-income producing assets, will be adequate to meet our capital and liquidity requirements in both the short and long-term. Our senior unsecured debt is currently investment grade rated “BBB-” by Fitch Ratings, “BBB-” by Standard & Poor’s and “Baa3” by Moody’s Investors Service. The rating agencies review the ratings assigned to an issuer such as us on an ongoing basis. Negative changes in our ratings may result in increases in our borrowing costs, including borrowings under our Credit Facility.
Our markets are currently in the recovery stage in the economic cycle. As a result of current economic conditions, we have generally experienced higher renewal rates and a lower number of lease terminations. Vacancy rates in our markets are generally stable or decreasing and asking rents in our markets have stabilized and in some instances, particularly in New York City and Long Island, are trending higher. Landlords are still required to grant concessions such as free rent and tenant improvements but generally at a more moderate rate than had been experienced in the prior year, particularly on renewal space. Our markets continue to experience higher real estate taxes and utility rates. This has negatively impacted our gross operating margins as we generally do not recover 100% of the increase in these costs from our tenants. The recent volatility in the energy markets has had a substantial impact on cost of utilities in the northeast where we own our properties. In certain of our markets, the increase in real estate taxes and utility costs will be included as part of expenses subject to escalation above a “base year” and billed to tenants consistent with the terms of their underlying leases. We are also experiencing a similar increase in cost of building materials to fit out tenant space, maintain our buildings and in new development costs. We believe that trends are moving positively from a landlord’s perspective particularly in terms of increased demand and limited new supply and that the above average tenant costs relating to leasing are moderating. This trend is supported by increased occupancy and reduced vacancy rates in most of our markets, the general economic recovery in the market resulting in job growth, and the scarcity of available land in which to develop a new supply of office space.
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We carry comprehensive liability, fire, extended coverage and rental loss insurance on all of our properties. Six of our properties are located in New York City. As a result of the events of September 11, 2001, insurance companies were limiting coverage for acts of terrorism in “all risk” policies. In November 2002, the Terrorism Risk Insurance Act (“TRIA”) of 2002 was signed into law, which, among other things, requires insurance companies to offer coverage for losses resulting from defined “acts of terrorism” through 2005. The TRIA was subsequently extended, with certain modifications, through 2007 with the enactment of the Terrorism Insurance Extension Act of 2005. Our current property insurance coverage provides for full replacement cost of our properties, including for acts of terrorism up to $600.0 million on a per occurrence basis. One of our New York City properties, One Court Square, is operated under a net lease to Citibank, N.A. whereby they are required to maintain adequate property and liability insurance including coverage for acts of terrorism.
On July 12, 2006 one of our properties located at 100 Summitt Lake Drive in Valhalla, New York was damaged by a passing tornado. The damage was primarily limited to the vertical glass curtain wall and the sloped glazing system supported by the space frame. The damage has not precluded us from operating the property or servicing our tenants. Notwithstanding, the repair costs are estimated to be between $4.0 million and $4.5 million, of which we have incurred approximately $671,000 to date and are estimated to be completed in the latter part of 2007. In addition, the damage is fully covered by insurance, net of a $50,000 deductible and to date we have received approximately $1.0 million from our insurance carrier.
The potential impact of terrorist attacks in the New York City and New York Tri-State Markets may adversely affect the value of our properties and our ability to generate cash flow. As a result, there may be a decrease in demand for office space in metropolitan areas that are considered at risk for future terrorist attacks, and this decrease may reduce our revenues from property rentals.
In order to qualify as a REIT for federal income tax purposes, the Company is required to make distributions to its stockholders of at least 90% of REIT taxable income. As a result, it is anticipated that the Operating Partnership will make distributions in amounts to meet this requirement. We expect to use our cash flow from operating activities for distributions to unitholders and for payment of recurring, non-incremental revenue-generating expenditures. We intend to invest amounts accumulated for distribution in short-term investments.
We currently maintain our $500 million Credit Facility with JPMorgan Chase Bank, as administrative agent, Wells Fargo Bank, National Association as syndication agent and Citicorp, North America, Inc. and Wachovia Bank, National Association as co-documentation agents. The Credit Facility matures in August 2008, provides for a one-year extension subject to a fee of 25 basis points and, upon receiving additional lender commitments, for an increase to the maximum revolving credit amount to $750 million. The Credit Facility has a competitive bid feature, which allows us to solicit bids from lenders under the Credit Facility to borrow up to 50% of the maximum revolving credit amount at interest rates less than the current LIBOR plus 80 basis point spread. In addition, the Credit Facility carries a facility fee of 20 basis points per annum. In the event of a change in the Operating Partnership’s senior unsecured credit ratings the interest rates and facility fee are subject to change. At September 30, 2006, the outstanding borrowings under the Credit Facility aggregated $205.0 million and carried a weighted average interest rate of 6.07% per annum.
We utilize the Credit Facility primarily to finance real estate investments, fund our real estate development activities and for working capital purposes. At September 30, 2006, we had availability under the Credit Facility to borrow approximately an additional $294.9 million, subject to compliance with certain financial covenants. Such amount is net of approximately $100,000 in an outstanding undrawn standby letter of credit, which is issued under the Credit Facility.
In connection with the acquisition of certain properties, contributing partners of such properties have provided guarantees on certain of our indebtedness. As a result, we maintain certain minimum outstanding balances on our Credit Facility.
On January 13, 2006, we obtained a $250.0 million term loan (the “Term Loan”) from Goldman Sachs Mortgage Company. The Term Loan was for an initial period of three months and had terms, including interest rates and financial covenants, substantially similar to our Credit Facility. Proceeds from the Term Loan were used to repay outstanding borrowings under our Credit Facility. On March 31, 2006, in conjunction with net proceeds received from the issuance of Senior Unsecured Notes, we repaid the entire amount outstanding under the Term Loan. As a result, the Term Loan has been retired and is no longer available for borrowings thereunder.
As a result of increased market values for our commercial real estate assets, we have sold certain non-core assets or interests in assets where significant value has been created. During 2004, we sold assets or interests in assets with aggregate sales prices of approximately $51.4 million, net of minority partners’ joint venture interests. During 2005 we sold approximately $909.8 million of our real estate assets including disposition of interests to joint ventures and during the nine month period ending September 30, 2006, we sold two of our non-core assets, the Tranche II Properties, a non-core parcel of land and an option to acquire our minority partner’s 40% partnership interest in the Omni Property for aggregate sales proceeds of approximately $180.9 million. During October 2006, we sold the Tranche III Properties for aggregate sales proceeds of approximately $111.8 million. We used the proceeds from these sales primarily to pay down borrowings under the Credit Facility, for general corporate purposes and to invest in short-term liquid investments until such time as alternative real estate investments could be made.
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A Class A OP Unit and a share of common stock have similar economic characteristics as they effectively share equally in the net income or loss and distributions of the Operating Partnership. As of September 30, 2006, the Operating Partnership had issued and outstanding 1,499,857 Class A OP Units and 274,850 Class C OP Units. The Class A OP Units and the Company’s common stock currently receive a quarterly distribution of $.4246 per unit/share. The Class C OP Units were issued in August 2003 in connection with the contribution of real property to the Operating Partnership and currently receive a quarterly distribution of $.4664 per unit. Subject to certain holding periods, OP Units may either be redeemed for cash or, at the election of the Company, exchanged for shares of common stock on a one-for-one basis.
As of September 30, 2006, the Company had approximately 1.1 million shares of its common stock reserved for issuance under its stock option plans at a weighted average exercise price of $24.74 per option. In addition, the Company has approximately 2.8 million shares of its common stock reserved for future issuance under its stock option plans.
The Operating Partnership issues additional units to the Company, and thereby increases the Company’s general partnership interest in the Operating Partnership, with terms similar to the terms of any securities (i.e., common stock or preferred stock) issued by the Company (including any securities issued by the Company upon the exercise of stock options). Any consideration received by the Company in respect of the issuance of its securities is contributed to the Operating Partnership. In addition, the Operating Partnership or a subsidiary funds the compensation of personnel, including any amounts payable under the Company’s LTIP.
During June 2005, the Operating Partnership issued $287.5 million aggregate principal amount of 4.00% exchangeable senior debentures due June 15, 2025. The debentures were issued at 98% of par and are exchangeable for shares of common stock of the Company on or after June 15, 2024 at an initial exchange rate of 24.6124 common shares per $1,000 of principal amount of debentures. The debentures are also exchangeable: (i) if the market price of the Company’s common stock over a specified period of time is more than 125% of the exchange price per share then in effect; (ii) if the trading price of the debentures over a specified period of time is less than 98% of the product of the closing price of the Company’s shares multiplied by the applicable exchange rate; (iii) during a specified period of time, for any debentures that have been called for redemption; (iv) under certain circumstances, upon the occurrence of a distribution to holders of the Company’s shares of (a) rights to purchase the Company’s common stock at a price below the market price of the Company’s shares or (b) assets, debt securities or rights to purchase the Company’s securities or securities of the Operating Partnership that have a per share / unit value exceeding 10% of the market price of our shares; (v) if the Company’s common stock is not listed on a national or regional securities exchange or quoted on NASDAQ for 30 consecutive trading days; or (vi) if the Operating Partnership or the Company is party to a consolidation, merger or binding share exchange pursuant to which all of the Company’s common stock would be exchanged for cash, securities or other property.
The initial exchange price of $40.63 represents a premium of approximately 25% to the closing price of the Company’s common stock on the issuance date of $32.50 per share. If exchanged in accordance with their terms, the debentures will be settled in cash up to their principal amount and any remaining exchange value will be settled, at our option, in cash, the Company’s common stock or a combination thereof. In accordance with the exchange rate terms of the debentures the Company has reserved approximately 8.8 million shares of its authorized common stock, $.01 par value, for potential future issuance upon the exchange of the debentures. Such amount is based on an exchange rate of 30.7692 common shares per $1,000 of principal amount of debentures. Although we have reserved these shares pursuant to the exchange rate terms, we believe the issuance of the Company’s shares, if any, would be significantly less than 8.8 million shares. The debentures are guaranteed by the Company. We have the option to redeem the debentures beginning June 18, 2010 for the principal amount plus accrued and unpaid interest. Holders of the debentures have the right to require us to repurchase their debentures at 100% of the principal amount thereof plus accrued and unpaid interest on June 15, 2010, June 15, 2015 and June 15, 2020 or, in the event of certain change in control transactions (including the Merger), prior to June 15, 2010.
During the three month period ended September 30, 2006, certain limited partners in the Operating Partnership exchanged 46,276 OP Units and 181,771 Class C OP Units for an equal number of shares of the Company’s common stock.
The Board of Directors of the Company initially authorized the purchase of up to 5.0 million shares of the Company’s common stock. Transactions conducted on the New York Stock Exchange have been, and will continue to be, effectuated in accordance with the safe harbor provisions of the Securities Exchange Act of 1934 and may be terminated by the Company at any time. Since the Board’s initial authorization, the Company has purchased 3,318,600 shares of its common stock for an aggregate purchase price of approximately $71.3 million. In June 2006, the Board of Directors authorized the re-institution of the Company’s common stock repurchase program, which had been inactive since March 2003. Subject to the restrictive covenants contained in the Merger Agreement, the Company may repurchase up to an aggregate of 5.0 million shares of its common stock under the re-instituted plan.
The Operating Partnership has issued and outstanding 1,200 preferred units of limited partnership interest with a liquidation preference value of $1,000 per unit and a stated distribution rate of 7.0%, which is subject to reduction based upon terms of their initial issuance (the “Preferred Units”). The terms of the Preferred Units provide for this reduction in distribution rate in order to address the effect of certain mortgages with above market interest rates, which were assumed by the Operating Partnership in connection with properties contributed to the Operating Partnership in 1998. As a result of the aforementioned reduction, there are currently no distributions being made on the Preferred Units.
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Capitalization
Our indebtedness at September 30, 2006 totaled approximately $2.0 billion (net of minority partners’ interests’ share of consolidated joint venture debt and including our share of consolidated and unconsolidated joint venture debt) and was comprised of approximately $213.8 million of floating rate unsecured debt, approximately $1.26 billion of senior unsecured notes and approximately $521.9 million of fixed rate mortgage indebtedness with a weighted average interest rate of approximately 6.0% and a weighted average maturity of approximately 4.6 years. Based on our total market capitalization of approximately $5.6 billion at September 30, 2006 (calculated based on the sum of (i) the market value of the Company’s common stock and OP Units, assuming conversion, (ii) the liquidation preference value of the Preferred Units and (iii) the $2.0 billion of debt), our debt represented approximately 35.3 % of our total market capitalization.
On October 6, 2006, we sold the Tranche III Properties to the Australian JV, subject to their mortgage debt of approximately $63.3 million. The Australian JV subsequently prepaid the mortgage note securing one of the properties.
CONTRACTUAL OBLIGATIONS AND COMMERCIAL COMMITMENTS
The following table sets forth our significant consolidated debt obligations by scheduled principal cash flow payments and maturity date and our commercial commitments by scheduled maturity at September 30, 2006 (in thousands):
| | MATURITY DATE | | | |
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| | 2006 | | 2007 | | 2008 | | 2009 | | 2010 | | Thereafter | | Total | |
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| |
| |
Mortgage notes payable (1) | | $ | 2,356 | | $ | 8,406 | | $ | 7,370 | | $ | 6,774 | | $ | 4,665 | | $ | 3,236 | | $ | 32,807 | |
Mortgage notes payable (2) | | | — | | | 60,642 | | | — | | | 100,254 | | | 62,105 | | | 228,435 | | | 451,436 | |
Senior unsecured notes | | | — | | | 200,000 | | | — | | | 200,000 | | | 287,500 | | | 575,000 | | | 1,262,500 | |
Credit Facility | | | — | | | — | | | 205,000 | | | — | | | — | | | — | | | 205,000 | |
Land lease obligations (3) | | | 3,113 | | | 12,471 | | | 12,498 | | | 12,644 | | | 12,566 | | | 342,849 | | | 396,141 | |
Air rights lease obligations | | | 90 | | | 362 | | | 362 | | | 362 | | | 362 | | | 3,257 | | | 4,795 | |
Capital leases | | | 168 | | | 671 | | | 671 | | | 671 | | | 671 | | | 3,188 | | | 6,040 | |
Operating leases | | | 330 | | | 194 | | | 196 | | | 14 | | | — | | | — | | | 734 | |
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| |
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|
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|
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| | $ | 6,057 | | $ | 282,746 | | $ | 226,097 | | $ | 320,719 | | $ | 367,869 | | $ | 1,155,965 | | $ | 2,359,453 | |
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(1) | Scheduled principal amortization payments. |
(2) | Principal payments due at maturity. |
(3) | We lease, pursuant to noncancellable operating leases, the land on which ten of our buildings were constructed. The leases, certain of which contain renewal options at our direction, expire between 2043 and 2090. The leases either contain provisions for scheduled increases in the minimum rent at specified intervals or for adjustments to rent based upon the fair market value of the underlying land or other indices at specified intervals. Minimum ground rent is recognized on a straight-line basis over the terms of the leases and includes lease renewals if reasonably assured that we will exercise that option. |
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The following table sets forth our significant consolidated interest expense obligations on our fixed rate debt by scheduled cash flow payments at September 30, 2006, excluding interest expense obligations related to those properties classified as held for sale on our consolidated balance sheet (in thousands):
| | YEAR ENDED DECEMBER 31, | | | |
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| | | |
| | 2006 | | 2007 | | 2008 | | 2009 | | 2010 | | Thereafter | | Total | |
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Mortgage notes payable | | $ | 909 | | $ | 28,422 | | $ | 24,782 | | $ | 21,633 | | $ | 16,105 | | $ | 10,041 | | $ | 101,892 | |
Senior unsecured notes | | | 9,750 | | | 57,113 | | | 48,538 | | | 36,267 | | | 33,038 | | | 118,892 | | | 303,598 | |
Exchangeable debentures(a) | | | 5,750 | | | 11,500 | | | 11,500 | | | 11,500 | | | 11,500 | | | 166,271 | | | 218,021 | |
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| | $ | 16,409 | | $ | 97,035 | | $ | 84,820 | | $ | 69,400 | | $ | 60,643 | | $ | 295,204 | | $ | 623,511 | |
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(a) | Callable after June 17, 2010 at par. |
Interest expense obligations related to those properties classified as held for sale on our consolidated balance sheet at September 30, 2006 over the next five years aggregated approximately $14.3 million. Notwithstanding, these properties were sold to the Australian JV on October 6, 2006, subject to the mortgages.
Interest expense incurred under our variable rate Credit Facility amounted to approximately $2.6 million for the three months ended September 30, 2006 and was based on a weighted average balance and interest rate of $152.8 million and 6.79%, respectively. Our rental revenues are our principal source of funds along with our net cash provided by operating activities to meet these and future interest obligations.
We had an undrawn letter of credit outstanding of approximately $100,000 at September 30, 2006. Such letter of credit expired in October 2006 pursuant to its terms.
Certain of the mortgage notes payable are guaranteed by the Company and/or certain limited partners in the Operating Partnership. In addition, consistent with customary practices in non-recourse lending, certain non-recourse mortgages may be recourse to the Company under certain limited circumstances including environmental issues and breaches of material representations.
Corporate Governance
In February 2006 the Company amended its Bylaws to implement certain corporate governance policies, including (i) a requirement that at least two-thirds of the members of the Board of Directors consist of independent directors and (ii) the establishment of an Affiliate Transaction Committee, which consists of all of the independent directors.
The corporate governance policies implemented by the amendments to the Bylaws supplement the Company’s previously-enacted corporate governance enhancements, which include: (i) the de-staggering of the Board of Directors so that shareholders can vote on the entire slate of directors each year; (ii) the establishment of an independent lead director position; (iii) the mandatory rotation of at least one independent director every three years; (iv) a requirement that independent directors own a minimum equity stake in the Company of $100,000 of common stock; (v) a requirement that a substantial portion of directors’ compensation be in the Company’s equity, which equity must be held during each director’s tenure on the Board; (vi) opting out of the Maryland Business Combination Statute; and (vii) modifying the Company’s “five or fewer” limitation on the ownership of its common stock so that such limitation may only be used to protect the Company’s REIT status and not for anti-takeover purposes.
On July 10, 2006, Dr. Edward R. Casas was appointed as an independent director of the Company’s Board of Directors. At such time, Dr. Casas also was appointed as a member of the Executive Committee, Nominating and Corporate Governance Committee, the Compensation Committee and Affiliate Transaction Committee of the Board of Directors. There are no arrangements or understandings between Dr. Casas and any other person pursuant to which Dr. Casas was appointed as a director, and neither Dr. Casas nor any member of his immediate family has or had, since the beginning of the Company’s last fiscal year, a material interest in any transaction or proposed transaction with the Company.
Affiliate Transaction Committee of the Board of Directors
The Affiliate Transaction Committee of the Board has reviewed and approved the Merger Agreement after considering, among other things, management’s participation in the proposed transaction and the opinions of its financial and legal advisors. The committee determined that the proposed transaction is fair to and in the best interests of the Company and of its shareholders. Additional information concerning the proposed transaction and the Affiliate Transaction Committee’s determination can be found in the definitive joint proxy statement/prospectus filed with the Securities and Exchange Commission on October 19, 2006.
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Other Matters
In July 2002, as a result of certain provisions of the Sarbanes-Oxley Act of 2002, we discontinued the use of stock loans in our Long Term Incentive Programs (“LTIP”). In connection with LTIP grants made prior to the enactment of the Sarbanes-Oxley Act of 2002, we currently have stock loans outstanding to certain executive officers which were used to purchase 385,000 shares of the Company’s common stock. The stock loans were priced at the market prices of the Company’s common stock at the time of issuance, bear interest at the mid-term Applicable Federal Rate and are secured by the shares purchased. Such stock loans (including accrued interest) are scheduled to vest and be ratably forgiven each year on the anniversary of the grant date based upon initial vesting periods ranging from seven to ten years. Such forgiveness is based on continued service and in part on the Company attaining certain annual performance measures. These stock loans had an initial aggregate weighted average vesting period of approximately nine years. As of September 30, 2006, there remains 139,000 shares of common stock subject to the original stock loans which are anticipated to vest between 2007 and 2011. Approximately $640,000 and $1.2 million and $582,000 and $1.7 million of compensation expense (inclusive of cash payments in respect of taxes payable by the borrower resulting from such forgiveness) was recorded for the three and nine month periods ended September 30, 2006 and 2005, respectively, related to these loans. Such amounts have been included in marketing, general and administrative expenses on the accompanying consolidated statements of income.
The outstanding stock loan balances due from executive officers aggregated approximately $2.9 million and $3.8 million at September 30, 2006 and December 31, 2005, respectively, and have been included as a reduction of additional paid in capital on the accompanying consolidated balance sheets. Other outstanding loans to executive and senior officers at September 30, 2006 and December 31, 2005 amounted to approximately $1.2 million and $2.5 million, respectively, and are included in investments in affiliate loans and joint ventures on the accompanying consolidated balance sheets and are primarily related to tax payment advances on stock compensation awards and life insurance contracts made to certain executive and non-executive officers.
In November 2002 and March 2003, an award of rights was granted to certain executive officers of the Company (the “2002 Rights” and “2003 Rights”, respectively, and collectively, the “Rights”). Each Right represents the right to receive, upon vesting, one share of the Company’s common stock if shares are then available for grant under one of the Company’s stock option plans or, if shares are not so available, an amount of cash equivalent to the value of such stock on the vesting date. The 2002 Rights vest in four equal annual installments beginning on November 14, 2003 (and shall be fully vested on November 14, 2006). The 2003 Rights were earned on March 13, 2005 and vest in three equal annual installments beginning on March 13, 2005 (and shall be fully vested on March 13, 2007). Dividends on the shares will be held by the Company until such shares become vested, and will be distributed thereafter to the applicable officer. The 2002 Rights also entitle the holder thereof to cash payments in respect of taxes payable by the holder resulting from the 2002 Rights. The 2002 Rights aggregate 62,835 shares of the Company’s common stock and the 2003 Rights aggregate 26,040 shares of common stock. As of June 30, 2006, there remains 15,709 shares of common stock reserved related to the 2002 Rights and 8,682 shares of common stock reserved related to the 2003 Rights. Approximately $121,000 and $361,000 and $121,000 and $345,000 of compensation expense was recorded for the three and nine month periods ended September 30, 2006 and 2005, respectively, related to the Rights. Such amounts have been included in marketing, general and administrative expenses on the accompanying consolidated statements of income.
In March 2003, the Company established a new LTIP for its executive and senior officers (the “2003 LTIP”). The four-year plan has a core award, which provides for annual stock based compensation based upon continued service and in part based on the Company attaining certain annual performance measures. The plan also has a special outperformance component in the form of a bonus pool equal to 10% of the total return in excess of a 9% cumulative and compounded annual total return on the Company’s common equity for the period through the four-year anniversary after the date of grant (the “Special Outperformance Pool”). The aggregate amount payable to such officers from the Special Outperformance Pool is capped at an amount calculated based upon a total cumulative and compounded annual return on the common equity of 15%. An officer’s special outperformance award represents an allocation of the Special Outperformance Pool and will become vested on the fourth anniversary of the date of grant, provided that the officer remains in continuous employment with the Company or any of its affiliates until such date, and the Company has achieved on a cumulative and compounded basis, during the four fiscal years completed on the applicable anniversary date, a total return to holders of the common equity that (i) is at or above the 60th percentile of the total return to stockholders achieved by members of the peer group during the same period and (ii) equals at least 9% per annum. Special outperformance awards will be paid in cash; however, the Compensation Committee, in its sole discretion, may elect to pay such an award in shares of common stock, valued at the date of vesting, if shares are available at such time under any of the Company’s existing stock option plans. The LTIP provides that no dividends or dividend equivalent payments will accrue with respect to the special outperformance awards. On March 13, 2003, the Company made available 827,776 shares of its common stock under its existing stock option plans in connection with the core award of the 2003 LTIP for certain of its executive and senior officers. During May 2003, the special outperformance awards of the 2003 LTIP were amended to increase the per share base price above which the four year cumulative return is measured from $18.00 to $22.40.
The Board of Directors approved an amendment to the 2003 LTIP to revise the peer group used to measure relative performance. The amendment eliminated the mixed office and industrial companies and added certain other “pure office” companies in order to revise the peer group to office sector companies. The Board has also approved the revision of the performance measurement dates for future vesting under the core component of the 2003 LTIP from the anniversary of the date of grant to December 31 of each year. This was done in order to have the performance measurement coincide with the performance period that the Company believes many investors use to judge the performance of the Company.
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On December 27, 2004, the Operating Partnership entered into definitive agreements with certain executive and senior officers of the Company to revise their incentive awards under the 2003 LTIP. The revised agreements provide for (i) the rescission of the unvested portion of their core awards and (ii) an award in exchange for the rescinded core awards of an equal number of units of a new class of limited partnership interests (“LTIP Units”) of the Operating Partnership.
Each executive and senior officer participating in the 2003 LTIP was offered the option to retain all or a portion of his core awards or to rescind them in exchange for new awards of LTIP Units. On December 27, 2004, certain executive and senior officers accepted such offer and thereby amended their Amended and Restated Long-Term Incentive Award Agreement to cancel, in the aggregate, 362,500 shares of restricted stock of the Company representing all or a portion of their unvested core award, and received an equal number of LTIP Units.
The revised awards under the 2003 LTIP were designed to provide the potential for executives to retain a greater equity interest in the Company by eliminating the need for executives to sell a portion of the core awards immediately upon vesting in order to satisfy personal income taxes which are due upon vesting under the original core awards.
With respect to the 2003 LTIP, the Company met its annual performance measure with respect to the 2005, 2004 and 2003 annual measurement periods, respectively. As a result, the Company issued to the participants of the 2003 LTIP 86,111, 102,779 and 206,944 shares of its common stock, respectively, related to the core component of the 2003 LTIP.
The terms of each award of LTIP Units are substantially similar to those of the core awards under the 2003 LTIP. The vesting, performance hurdles and timing for vesting remain unchanged. However, an LTIP Unit represents an equity interest in the Operating Partnership, rather than the Company. At issuance, the LTIP Unit has no value but may over time accrete to a value equal to (but never greater than) the value of one share of common stock of the Company (a “REIT Share”). Initially, LTIP Units will not have full parity with OP Units with respect to liquidating distributions. Upon the occurrence of certain “triggering events” (such as the issuance of additional OP Units by the Operating Partnership), the Operating Partnership will revalue its assets for the purpose of the capital accounts of its partners and any increase in valuation of the Operating Partnership’s assets from the date of the issuance of the LTIP Units through the “triggering event” will be allocated to the capital accounts of holders of LTIP Units until their capital accounts are equivalent to the capital accounts of holders of OP Units. If such equivalence is reached, LTIP Units would achieve full parity with OP Units for all purposes, and therefore accrete to an economic value equivalent to REIT Shares on a one-for-one basis. In addition, if such parity is reached, vested LTIP Units may only be converted into an equal number of OP Units after two years from the date of grant. However, in the absence of an increase in the value of the assets of the Operating Partnership and the occurrence of “triggering events”, such economic equivalence would not be reached. Until and unless such economic equivalence is reached, the value that the officers will realize for vested LTIP Units will be less than the value of an equal number of REIT Shares. In addition, LTIP Units are subject to specific performance related vesting requirements. In addition, unlike core awards under the 2003 LTIP (wherein dividends that accumulate are paid upon vesting), LTIP Units will receive the same quarterly distributions as OP Units on a current basis, thus providing full dividend equivalence with REIT Shares. Each LTIP Unit awarded is deemed equivalent to an award of one share of common stock reserved under one of the Company’s stock option plans, reducing availability for other equity awards on a one-for-one basis. At the scheduled March 2005 vesting date, the specified performance hurdles were met, and officers that received LTIP Units received a one-time cash payment that represented payment of the full vested amount of the accrued unpaid dividends under the core award of the 2003 LTIP through December 27, 2004, the issuance date of the LTIP Units. In addition, the officers, in the aggregate, vested in 104,167 LTIP Units. At the scheduled March 2006 vesting date, the specified performance hurdles were met and officers that received LTIP Units, in the aggregate, vested in 120,833 LTIP Units. On April 4, 2006 (the “Measurement Date”), as a result of the Company issuing 207,000 LTIP Units (discussed below) a “triggering event” occurred and the Company completed an analysis to determine the increase in the valuation, if any of the Operating Partnership’s assets from the issuance of 362,500 LTIP Units on December 27, 2004 through the Measurement Date and with respect to the issuance of 272,100 LTIP Units issued on March 11, 2005 through the Measurement Date. The results of the analysis indicated that a sufficient increase in value to the Operating Partnership’s assets was achieved. As a result the aforementioned LTIP Units achieved full parity with an OP Unit. In order to more closely replicate the terms of the core awards being rescinded, the Company also entered into agreements with three executive officers, which p rovide that in the event of a change of control the executive shall receive the equivalent value of one REIT Share for each LTIP Unit.
For each of the calendar years ended December 31, 2004 and 2005, following the recommendations of the Compensation Committee, eight senior and executive officers of the Company were awarded, in the aggregate, 272,100 LTIP Units and 207,000 LTIP Units, respectively, for outperformance and to continue to incentivize them for the long-term (the “Restricted Equity Awards”). Initially, the terms of the Restricted Equity Awards were generally consistent with the terms of the 2003 LTIP, including with respect to the impact upon vesting in the event of a change of control. On June 12, 2006, with respect to the 2005 Restricted Equity Awards, the vesting periods were extended so that they will vest over a four-year period in lieu of a two-year period, provided that the officer remains in continuous employment with the Company until such dates and the Company has achieved certain specified performance requirements during the year ending December 31, 2006. If the performance requirements are not met in 2006, the awards will become vested on any subsequent annual vesting date on which the performance requirements are met on a cumulative and compounded basis. In addition, with respect to the 2004 Restricted Equity Award to Scott Rechler, the Company’s Chief Executive Officer, was similarly extended provided that Mr. Rechler remains in continuous employment with the Company.
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As a result of the foregoing, there remains 69,443 shares of common stock reserved for future issuance under the core award of the 2003 LTIP and 616,600 shares of common stock reserved for issuance with respect to the issuance of LTIP Units. With respect to the core award of the 2003 LTIP, the Company recorded approximately $305,000 and $915,000 of compensation expense for each of the three and nine month periods ended September 30, 2006 and 2005, respectively. In addition, with respect to the LTIP Units and the Restricted Equity Awards, the Company recorded compensation expense of approximately $1.2 million and $3.0 million and $822,000 and $2.1 million, respectively, for the three and nine month periods ended September 30, 2006 and 2005. Such amounts have been included in marketing, general and administrative expenses on the accompanying consolidated statements of income. Based on the terms of the 2003 LTIP, potential outcomes of the Special Outperformance Pool are estimated to range from $0, assuming the requisite four year cumulative performance measures are not met, to a maximum of approximately $35.5 million, assuming relative peer group performance measures are met and a cap of 15% cumulative and compounded return on common equity. As of September 30, 2006, we have accrued approximately $31.5 million of compensation expense with respect to the Special Outperformance Pool of which $2.1 million and $7.9 million was accrued during the three and nine months ended September 30, 2006. This amount is calculated on the closing stock price of the Company’s common stock on September 30, 2006 and is based on management’s determination of the probability of requisite performance measures being met. The accrual represents approximately 89% of the total estimated Special Outperformance Pool reflecting the service period through September 30, 2006.
Compensation expense with respect to the core component of the 2003 LTIP, which relates to the Company attaining certain annual performance measures, is recognized as a “target stock price” plan. Under this type of plan, compensation expense is recognized for the target stock price awards whether or not the targeted stock price condition is achieved as long as the underlying service conditions are achieved. Accordingly, we obtained an independent third party valuation of the 2003 LTIP awards and recognize compensation expense on a straight-line basis through the performance and vesting period for awards to employees who remain in service over the requisite period regardless of whether the target stock price has been reached.
Compensation expense with respect to the core component of the 2003 LTIP, which relates to the continued service of the grantee, is recognized as compensation expense on a straight-line basis through the vesting period based on the fair market value of the stock on the date of grant.
As a result of the election of certain executive and senior officers to exchange all or a portion of their unvested core awards under the 2003 LTIP into an equal number of LTIP Units we again obtained an independent third party valuation of the newly granted LTIP Units and determined that the fair value of the LTIP Units was not greater than the exchanged 2003 LTIP awards on the date of the exchange. As such, compensation expense to be recognized, on a straight-lined basis, over the vesting period of the LTIP Units equals the amount of unamortized compensation expense cost for the 2003 LTIP awards as of the exchange date.
On January 1, 2006, we adopted Statement No. 123R and have determined that the adoption of Statement No. 123R did not have a material impact on our consolidated financial statements.
Nine of our office properties, which were acquired by the issuance of OP Units, are subject to agreements limiting our ability to transfer them prior to agreed upon dates without the consent of the limited partner who transferred the respective property to us. In the event we transfer any of these properties prior to the expiration of these limitations, we may be required to make a payment relating to taxes incurred by the limited partner. These limitations expire between 2011 and 2015.
Two of our office properties that are held in joint ventures contain certain limitations on transfer. These limitations include requiring the consent of the joint venture partner to transfer a property prior to various specified dates, rights of first offer, and buy / sell provisions.
Under various Federal, state and local laws, ordinances and regulations, an owner of real estate is liable for the costs of removal or remediation of certain hazardous or toxic substances on or in such property. These laws often impose such liability without regard to whether the owner knew of, or was responsible for, the presence of such hazardous or toxic substances. The cost of any required remediation and the owner’s liability therefore as to any property is generally not limited under such enactments and could exceed the value of the property and/or the aggregate assets of the owner. The presence of such substances, or the failure to properly remediate such substances, may adversely affect the owner’s ability to sell or rent such property or to borrow using such property as collateral. Persons who arrange for the disposal or treatment of hazardous or toxic substances may also be liable for the costs of removal or remediation of such substances at a disposal or treatment facility, whether or not such facility is owned or operated by such person. Certain environmental laws govern the removal, encapsulation or disturbance of asbestos-containing materials (“ACMs”) when such materials are in poor condition, or in the event of renovation or demolition. Such laws impose liability for release of ACMs into the air and third parties may seek recovery from owners or operators of real properties for personal injury associated with ACMs. In connection with the ownership (direct or indirect), operation, management and development of real properties, we may be considered an owner or operator of such properties or as having arranged for the disposal or treatment of hazardous or toxic substances and, therefore, potentially liable for removal or remediation costs, as well as certain other related costs, including governmental fines and injuries to persons and property.
All of our properties have been subjected to a Phase I or similar environmental audit (which involved general inspections without soil sampling, ground water analysis or radon testing) completed by independent environmental consultant companies. These environmental audits have not revealed any environmental liability that would have a material adverse effect on our business.
Off Balance Sheet Arrangements
The Operating Partnership has a net investment of approximately $55.2 million in loans and REIT-qualified joint ventures with FrontLine Capital Group (“FrontLine”) and Reckson Strategic Venture Partners, LLC (“RSVP”), a real estate venture capital fund whose common equity is held indirectly by FrontLine (collectively, the “RSVP / FLCG Investments”). Frontline was formed by the Company in 1997. The net carrying value of the RSVP / FLCG Investments was reassessed with no change by management at September 30, 2006 and is included in investments in affiliate loans and joint ventures on our consolidated balance sheets.
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FrontLine is in default under the loans from the Operating Partnership and on June 12, 2002, filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code.
The RSVP REIT-qualified joint ventures were managed subject to a management agreement with the former managing directors of RSVP, which expired in September 2006. The management agreement provided for an annual base management fee and disposition fees equal to 2% of the net proceeds received by RSVP on asset sales which are subject to a maximum of $7.5 million. In addition, the former managing directors of RSVP retained a one-third residual interest in RSVP’s assets which is subordinated to the distribution of an aggregate amount of $75.0 million to RSVP and/or us in respect of RSVP-controlled joint ventures.
Scott H. Rechler, our CEO and Chairman of the Board of Directors, serves as CEO and is FrontLine’s sole board member. Mr. Rechler also serves as a member of the management committee of RSVP.
In November 2004, a joint venture in which RSVP owns approximately 47% executed a binding agreement to contribute its Catskills, NY resort properties (excluding residentially zoned land) to Empire Resorts Inc. (NASDAQ: NYNY) (“Empire”) for consideration of 18.0 million shares of Empire’s common stock and the right to appoint five members of their Board of Directors. On December 29, 2005, the agreement was terminated and the joint venture received options to purchase approximately 5.2 million shares of common stock of Empire at a price of $7.50 per share. The options are exercisable through December 29, 2006. On November 6, 2006, the closing price of a share of Empire’s common stock was $7.38 per share.
We have discontinued the accrual of interest income with respect to the loans from the Operating Partnership and our share of GAAP equity in earnings, if any, from the RSVP-controlled REIT-qualified joint ventures until such income is realized through cash distributions.
In addition to the foregoing, our off-balance sheet arrangements consist of our approximate 5% indirect ownership interest in a joint venture that owns an investment in a New York City Class A office tower where our share of unconsolidated joint venture debt is approximately $11.6 million with an interest rate of 6.35% per annum and a remaining term of approximately 14.2 years, our 25% joint venture interest in the Australian JV where our share of unconsolidated joint venture debt is approximately $75.8 million with a weighted average interest rate of 5.4% per annum and a weighted average term of 5.0 years and our 30% joint venture interest in the property located at One Court Square, Long Island City, NY where our share of unconsolidated joint venture debt is $94.5 million with an interest rate of 4.91% per annum and a remaining term of approximately 8.8 years.
Funds from Operations
Funds from Operations (“FFO”) is defined by the National Association of Real Estate Investment Trusts (“NAREIT”) as net income or loss, excluding gains or losses from sales of depreciable properties plus real estate depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. We present FFO because we consider it an important supplemental measure of our operating performance and believe it is frequently used by securities analysts, investors and other interested parties in the evaluation of REITs, many of which present FFO when reporting their results. FFO is intended to exclude GAAP historical cost depreciation and amortization of real estate and related assets, which assumes that the value of real estate diminishes ratably over time. Historically, however, real estate values have risen or fallen with market conditions. As a result, FFO provides a performance measure that, when compared year over year, reflects the impact to operations from trends in occupancy rates, rental rates, operating costs, development activities, interest costs and other matters without the inclusion of depreciation and amortization, providing perspective that may not necessarily be apparent from net income.
We compute FFO in accordance with the standards established by NAREIT. FFO does not represent cash generated from operating activities in accordance with GAAP and is not indicative of cash available to fund cash needs. FFO should not be considered as an alternative to net income as an indicator of our operating performance or as an alternative to cash flow as a measure of liquidity. Since all companies and analysts do not calculate FFO in a similar fashion, our calculation of FFO presented herein may not be comparable to similarly titled measures as reported by other companies.
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The following table presents our FFO calculations (in thousands):
| | Three months ended
September 30, | | Nine months ended
September 30, | |
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| | 2006 | | 2005 | | 2006 | | 2005 | |
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Net income | | $ | 9,487 | | $ | 116,480 | | $ | 89,062 | | $ | 152,869 | |
Adjustments for Funds From Operations | | | | | | | | | | | | | |
Add: | | | | | | | | | | | | | |
Real estate depreciation and amortization | | | 30,856 | | | 32,903 | | | 96,512 | | | 90,391 | |
Minority partners’ interests in consolidated partnerships | | | 6,724 | | | 6,741 | | | 21,340 | | | 20,244 | |
Deduct: | | | | | | | | | | | | | |
Gains on sales of depreciable real estate | | | — | | | 98,861 | | | 44,669 | | | 98,861 | |
Amounts distributable to minority partners in consolidated partnerships | | | 6,534 | | | 5,600 | | | 19,739 | | | 16,804 | |
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Basic and Diluted Funds From Operations | | $ | 40,533 | | $ | 51,663 | | $ | 142,506 | | $ | 147,839 | |
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Diluted Weighted Average units outstanding | | | 86,110 | | | 85,150 | | | 85,832 | | | 84,948 | |
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Inflation
The office leases generally provide for fixed base rent increases or indexed escalations. In addition, the office leases provide for separate escalations of real estate taxes, operating expenses and electric costs over a base amount. The flex leases generally provide for fixed base rent increases, direct pass through of certain operating expenses and separate real estate tax escalations over a base amount. We believe that inflationary increases in expenses will be mitigated by contractual rent increases and expense escalations described above. As a result of the impact of the events of September 11, 2001, we have realized increased insurance costs, particularly relating to property and terrorism insurance, and security costs. We have included these costs as part of our escalatable expenses and have billed them to our tenants consistent with the terms of the underlying leases and believe they are collectible. To the extent our properties contain vacant space, we will bear such inflationary increases in expenses.
The Credit Facility and one of our Note Receivable Investments bear interest at variable rates, which will be influenced by changes in short-term interest rates, and are sensitive to inflation.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The primary market risk facing us is interest rate risk on our long-term debt and notes receivable. We do not enter into derivative financial instruments for trading or speculative purposes. However, in the normal course of our business and to help us manage our debt issuances and maturities, we do use derivative financial instruments in the form of cash flow hedges to protect ourselves against potentially rising interest rates. We are not subject to foreign currency risk.
The accounting for changes in the fair value of derivatives depends on the intended use of the derivative and the resulting designation. Derivatives used to hedge the exposure to changes in the fair value of an asset, liability, or firm commitment attributable to a particular risk, such as interest rate risk, are considered fair value hedges. Derivatives used to hedge the exposure to variability in expected future cash flows, or other types of forecasted transactions, are considered cash flow hedges.
As required by Statement No. 133, we record all derivatives on our balance sheet at fair value. For effective hedges, depending on the nature of the hedge, changes in the fair value of the derivative will be offset against the corresponding change in fair value of the hedged asset, liability, or firm commitment through earnings or recognized in OCI on our balance sheet until the hedged item is recognized in earnings.
For derivatives designated as cash flow hedges, the effective portion of changes in the fair value of the derivative is initially reported in OCI and subsequently reclassified to earnings when the hedged transaction affects earnings, and the ineffective portion of changes in the fair value of the derivative is recognized directly in earnings. We assess the effectiveness of each hedging relationship by comparing the changes in fair value or cash flows of the derivative hedging instrument with the changes in fair value or cash flows of the designated hedged item or transaction. For derivatives not designated as hedges, changes in fair value are recognized in earnings.
The fair market value (“FMV”) of our long term debt and Note Receivable Investments is estimated based on discounting future cash flows at interest rates that we believe reflects the risks associated with long term debt and notes receivable of similar risk and duration.
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The following table sets forth our long-term debt obligations by scheduled principal cash flow payments and maturity date, weighted average interest rates and estimated FMV at September 30, 2006 (dollars in thousands):
| | For the Year Ending December 31, | | | | | | | |
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| | 2006 | | 2007 | | 2008 | | 2009 | | 2010 | | Thereafter | | Total(1) | | FMV | |
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Long term debt: | | | | | | | | | | | | | | | | | | | | | | | | | |
Fixed rate | | $ | 2,356 | | $ | 269,048 | | $ | 7,370 | | $ | 307,028 | | $ | 354,270 | | $ | 806,671 | | $ | 1,746,743 | | $ | 1,814,043 | |
Weighted average interest rate | | | 7.57 | % | | 7.13 | % | | 7.22 | % | | 7.71 | % | | 4.33 | % | | 4.00 | % | | 5.22 | % | | | |
Variable rate | | $ | — | | $ | — | | $ | 205,000 | | $ | — | | $ | — | | $ | — | | $ | 205,000 | | $ | 205,000 | |
Weighted average interest rate | | | — | | | — | | | 6.07 | % | | — | | | — | | | — | | | 6.07 | % | | | |
(1) | Includes aggregate unamortized issuance discounts of approximately $7.4 million on the senior unsecured notes which are due at maturity. |
In addition, we have assessed the market risk for our variable rate debt, which is based upon LIBOR, and believe that a one percent increase in the LIBOR rate would have a $2.1 million annual increase in interest expense based on $205.0 million of variable rate debt outstanding at September 30, 2006.
The following table sets forth our Note Receivable Investments by scheduled maturity date, weighted average interest rates and estimated FMV at September 30, 2006 (dollars in thousands):
| | For the Year Ending December 31, | | | | | |
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| | 2006 | | 2007 | | 2008 | | 2009 | | 2010 | | Thereafter | | Total (1) | | FMV | |
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Note Receivable Investments: | | | | | | | | | | | | | | | | | | | | | | | | | |
Fixed rate | | $ | — | | $ | 40,000 | | $ | 14,188 | | $ | 55,000 | | $ | 9,031 | | $ | 96,760 | (2) | $ | 214,979 | | $ | 214,979 | (2) |
Weighted average interest rate | | | — | | | 16.25 | % | | 15.29 | % | | 15.86 | % | | 9.17 | % | | 9.00 | % | | 12.52 | % | | | |
Variable rate | | $ | — | | $ | — | | $ | — | | $ | 500 | | $ | — | | $ | — | | $ | 500 | | $ | 500 | |
Weighted average interest rate | | | — | | | — | | | — | | | 5.35 | % | | — | | | — | | | 5.35 | % | | | |
(1) | Excludes interest receivables and unamortized acquisition costs aggregating approximately $6.8 million. |
(2) | Our investment balance, with respect to a participating loan investment, includes approximately $21.2 million of accretive interest which is due at maturity. The FMV calculation considers only accretive interest recorded through September 30, 2006. |
In addition, we have assessed the market risk for our variable rate receivables, which are based upon LIBOR, and believe that a one percent increase in the LIBOR rate would have an approximate $5,000 annual increase in interest income based on a $500,000 variable rate note receivable outstanding at September 30, 2006.
ITEM 4. CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures designed to ensure that information required to be disclosed in our filings under the Securities Exchange Act of 1934 is reported within the time periods specified in the SEC’s rules and forms. In this regard, we have formed a Disclosure Committee currently comprised of all of our executive officers as well as certain other members of our senior management with knowledge of information that may be considered in the SEC reporting process. The Committee has responsibility for the development and assessment of the financial and non-financial information to be included in the reports filed by us with the SEC and supports our Chief Executive Officer and Chief Financial Officer in connection with their certifications contained in our SEC reports. The Committee meets regularly and reports to the Audit Committee on a quarterly or more frequent basis. Our Chief Executive Officer and Chief Financial Officer have evaluated, with the participation of our senior management, our disclosure controls and procedures as of the end of the period covered by this Quarterly Report on Form 10-Q. Based upon the evaluation, our Chief Executive Officer and Chief Financial Officer concluded that such disclosure controls and procedures are effective.
There were no changes in our internal control over financial reporting that occurred during our most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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SELECTED PORTFOLIO INFORMATION
The following table sets forth our schedule of top 25 tenants based on base rental revenue as of October 1, 2006:
Tenant Name (1) (2) | | Wtd. Avg. Term
Remaining (years) | | Total
Square Feet | | Percent of Pro Rata
Share of Annualized
Base Rental Revenue | |
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* Citigroup / Citibank | | 12.1 | | 1,988,060 | | 5.0 | % |
* Debevoise & Plimpton | | 15.3 | | 586,528 | | 3.5 | % |
D.E. Shaw | | 7.3 | | 192,837 | | 2.2 | % |
Amerada Hess Corporation | | 15.3 | | 180,822 | | 2.0 | % |
King & Spalding | | 7.2 | | 148,675 | | 1.6 | % |
* Verizon Communications Inc. | | 0.8 | | 271,384 | | 1.6 | % |
* Schulte Roth & Zabel | | 14.2 | | 279,746 | | 1.5 | % |
* American Express | | 7.6 | | 125,305 | | 1.4 | % |
County of Nassau | | 15.1 | | 219,066 | | 1.3 | % |
* Bank of America / Fleet Bank | | 4.8 | | 187,789 | | 1.3 | % |
* MCI | | 3.9 | | 180,305 | | 1.2 | % |
* Fuji Photo Film USA | | 5.9 | | 194,984 | | 1.1 | % |
Westpoint Stevens | | 0.2 | | 86,800 | | 1.0 | % |
Arrow Electronics Inc. | | 7.3 | | 163,762 | | 1.0 | % |
Dun & Bradstreet Corp. | | 6.0 | | 123,000 | | 1.0 | % |
Hoffmann-La Roche Inc. | | 4.3 | | 193,574 | | 1.0 | % |
Westdeutsche Landesbank | | 9.6 | | 53,000 | | 0.9 | % |
* JP Morgan Chase | | 5.2 | | 88,060 | | 0.8 | % |
* Banque Nationale De Paris | | 9.8 | | 145,834 | | 0.8 | % |
Washington Mutual | | 0.4 | | 127,465 | | 0.8 | % |
* HQ Global | | 4.3 | | 193,414 | | 0.8 | % |
North Fork Bank | | 12.3 | | 126,770 | | 0.8 | % |
Vytra Healthcare | | 1.2 | | 105,613 | | 0.8 | % |
Practicing Law Institute | | 7.4 | | 77,500 | | 0.8 | % |
Maersk Inc. | | 9.1 | | 115,316 | | 0.8 | % |
(1) | Ranked by pro-rata share of annualized base rental revenue adjusted for pro rata share of joint venture interests. |
(2) | Total square footage is based on currently leased space and excludes expansions or leases with future start dates. |
* | Part or all of space occupied by tenant is in a joint venture building. |
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Historical Non-Incremental Revenue-Generating Capital Expenditures, Tenant Improvement Costs and Leasing Commissions
The following table sets forth annual and per square foot non-incremental revenue-generating capital expenditures in which we paid or accrued, during the respective periods, to retain revenues attributable to existing leased space (at 100% of cost) for the years 2002 through 2005 and for the nine month period ended September 30, 2006 for our consolidated office and industrial / flex properties:
| | 2002 | | 2003 | | 2004 | | 2005 | | Average
2002-2005 | | YTD
2006 | |
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Suburban Office Properties | | | | | | | | | | | | | | | | | | | |
Total | | $ | 5,283,674 | | $ | 6,791,336 | | $ | 7,034,054 | | $ | 8,402,936 | | $ | 6,878,000 | | $ | 7,652,601 | (5) |
Per Square Foot | | $ | 0.53 | | $ | 0.67 | | $ | 0.69 | | $ | 0.78 | (2(3) | $ | 0.67 | | $ | 0.68 | |
NYC Office Properties | | | | | | | | | | | | | | | | | | | |
Total | | $ | 1,939,111 | | $ | 1,922,209 | | $ | 2,515,730 | | $ | 2,017,360 | | $ | 2,098,603 | | $ | 2,055,168 | |
Per Square Foot | | $ | 0.56 | | $ | 0.55 | | $ | 0.56 | | $ | 0.42 | (4) | $ | 0.52 | | $ | 0.50 | (4) |
Flex / Industrial Properties | | | | | | | | | | | | | | | | | | | |
Total | | $ | 1,881,627 | | $ | 1,218,401 | (1) | $ | 207,028 | | $ | 38,723 | (2) | $ | 836,445 | | $ | 17,544 | |
Per Square Foot | | $ | 0.28 | | $ | 0.23 | | $ | 0.23 | | $ | 0.05 | | $ | 0.20 | | $ | 0.05 | |
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(1) | Excludes non-incremental capital expenditures of $435,140 incurred during the fourth quarter of 2003 for the industrial properties which were sold during the period. |
(2) | Includes costs related to the 17 properties sold to the Australian JV on September 21, 2005. |
(3) | Per square foot calculations for suburban submarkets-office properties exclude 68 South Service Road and the Eastridge Portfolio. |
(4) | Per square foot calculations, for NYC office properties, exclude One Court Square, a 1,401,609 square foot, triple net leased building in Long Island City, New York. |
(5) | Per square foot calculations for suburban office properties exclude 68 South Service Road, a building that was recently placed in service. |
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The following table sets forth annual and per square foot non-incremental revenue-generating tenant improvement costs and leasing commissions (at 100% of cost) which we committed to perform, during the respective periods, to retain revenues attributable to existing leased space for the years 2002 through 2005 and for the nine month period ended September 30, 2006 for our consolidated office and industrial / flex properties:
| | 2002 | | 2003 | | 2004 | | 2005 | | Average
2002-2005 | | YTD
2006 | | New | | Renewal | |
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Long Island Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 1,917,466 | | $ | 3,774,722 | | $ | 4,856,604 | | $ | 4,768,833 | | $ | 3,829,406 | | $ | 1,998,757 | | $ | 1,539,991 | | $ | 458,766 | |
Per Square Foot Improved | | $ | 7.81 | | $ | 7.05 | | $ | 8.78 | | $ | 11.25 | | $ | 8.72 | | $ | 10.77 | | $ | 19.57 | | $ | 4.30 | |
Leasing Commissions | | $ | 1,026,970 | | $ | 2,623,245 | | $ | 2,345,325 | | $ | 1,546,354 | | $ | 1.885,474 | | $ | 746,543 | | $ | 390,702 | | $ | 355,841 | |
Per Square Foot Leased | | $ | 4.18 | | $ | 4.90 | | $ | 4.24 | | $ | 3.65 | | $ | 4.24 | | $ | 4.02 | | $ | 4.96 | | $ | 3.33 | |
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Total Per Square Foot | | $ | 11.99 | | $ | 11.95 | | $ | 13.02 | | $ | 14.90 | | $ | 12.96 | | $ | 14.79 | | $ | 24.53 | | $ | 7.63 | |
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Westchester Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 6,391,589 | (1) | $ | 3,732,370 | | $ | 6,323,134 | | $ | 5,296,662 | | $ | 5,435,939 | | $ | 5,507,783 | | $ | 2,375,384 | | $ | 3,132,399 | |
Per Square Foot Improved | | $ | 15.05 | | $ | 15.98 | | $ | 11.95 | | $ | 12.37 | | $ | 13.84 | | $ | 12.10 | | $ | 24.30 | | $ | 8.76 | |
Leasing Commissions | | $ | 1,975,850 | (1) | $ | 917,487 | | $ | 2,671,548 | | $ | 1,923,552 | | $ | 1,872,109 | | $ | 1,924,125 | | $ | 640,352 | | $ | 1,283,773 | |
Per Square Foot Leased | | $ | 4.65 | | $ | 3.93 | | $ | 5.05 | | $ | 4.49 | | $ | 4.53 | | $ | 4.23 | | $ | 6.55 | | $ | 3.60 | |
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Total Per Square Foot | | $ | 19.70 | | $ | 19.91 | | $ | 17.00 | | $ | 16.86 | | $ | 18.37 | | $ | 16.33 | | $ | 30.85 | | $ | 12.36 | |
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Connecticut Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 491,435 | | $ | 588,087 | | $ | 3,051,833 | | $ | 3,895,369 | | $ | 2,006,681 | | $ | 3,810.209 | | $ | 3,277,380 | | $ | 532,829 | |
Per Square Foot Improved | | $ | 3.81 | | $ | 8.44 | | $ | 12.71 | | $ | 11.86 | | $ | 9.20 | | $ | 18.79 | | $ | 32.28 | | $ | 5.26 | |
Leasing Commissions | | $ | 307,023 | | $ | 511,360 | | $ | 1,493,664 | | $ | 1,819,504 | | $ | 1,032,888 | | $ | 1,395,860 | | $ | 1,257,148 | | $ | 138,712 | |
Per Square Foot Leased | | $ | 2.38 | | $ | 7.34 | | $ | 6.22 | | $ | 5.54 | | $ | 5.37 | | $ | 6.88 | | $ | 12.38 | | $ | 1.37 | |
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Total Per Square Foot | | $ | 6.19 | | $ | 15.78 | | $ | 18.93 | | $ | 17.40 | | $ | 14.57 | | $ | 25.67 | | $ | 44.66 | | $ | 6.63 | |
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New Jersey Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 2,842,521 | | $ | 4,327,295 | | $ | 1,379,362 | | $ | 2,421,779 | | $ | 2,742,739 | | $ | 7,959,799 | (6) | $ | 6,982,990 | (6) | $ | 976,809 | |
Per Square Foot Improved | | $ | 10.76 | | $ | 11.57 | | $ | 7.12 | | $ | 15.49 | | $ | 11.24 | | $ | 20.10 | | $ | 24.07 | | $ | 9.22 | |
Leasing Commissions | | $ | 1,037,012 | | $ | 1,892,635 | | $ | 832,658 | | $ | 1,394,470 | | $ | 1,289,194 | | $ | 3,274,829 | (6) | $ | 2,311,076 | (6) | $ | 963,753 | |
Per Square Foot Leased | | $ | 3.92 | | $ | 5.06 | | $ | 4.30 | | $ | 8.92 | | $ | 5.55 | | $ | 8.27 | | $ | 7.97 | | $ | 9.09 | |
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Total Per Square Foot | | $ | 14.68 | | $ | 16.63 | | $ | 11.42 | | $ | 24.41 | | $ | 16.79 | | $ | 28.37 | | $ | 32.04 | | $ | 18.31 | |
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Total Suburban Markets -
Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 11,643,011 | | $ | 12,422,474 | | $ | 15,610,933 | | $ | 16,382,643 | | $ | 14,014,765 | | $ | 19,276,548 | | $ | 14,175,745 | | $ | 5,100,803 | |
Per Square Foot Improved | | $ | 10.95 | | $ | 10.24 | | $ | 10.30 | | $ | 12.25 | | $ | 10.94 | | $ | 15.55 | | $ | 24.96 | | $ | 7.60 | |
Leasing Commissions | | $ | 4,346,855 | | $ | 5,944,728 | | $ | 7,343,194 | | $ | 6,683,880 | | $ | 6,079,664 | | $ | 7,341,357 | | $ | 4,599,278 | | $ | 2,742,079 | |
Per Square Foot Leased | | $ | 4.09 | | $ | 4.90 | | $ | 4.84 | | $ | 5.00 | | $ | 4.71 | | $ | 5.92 | | $ | 8.10 | | $ | 4.08 | |
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Total Per Square Foot | | $ | 15.04 | | $ | 15.14 | | $ | 15.14 | | $ | 17.25 | | $ | 15.65 | | $ | 21.47 | | $ | 33.06 | | $ | 11.68 | |
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New York City Office Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 4,350,106 | | $ | 5,810,017 | (2)(3) | $ | 9,809,822 | (3)(4) | $ | 10,648,442 | (2)(3) | $ | 7,654,597 | | $ | 3,591,749 | (5) | $ | 3,565,013 | (5) | $ | 26,736 | |
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Per Square Foot Improved | | $ | 18.39 | | $ | 32.84 | | $ | 23.21 | | $ | 28.20 | | $ | 25.66 | | $ | 40.20 | | $ | 43.89 | | $ | 3.29 | |
Leasing Commissions | | $ | 2,019,837 | | $ | 2,950,330 | (2) | $ | 3,041,141 | (4) | $ | 4,418,706 | (2)(3) | $ | 3,107,504 | | $ | 1,466,707 | (5) | $ | 1,449,095 | (5) | $ | 17,612 | |
Per Square Foot Leased | | $ | 8.54 | | $ | 16.68 | | $ | 7.19 | | $ | 11.70 | | $ | 11.03 | | $ | 16.41 | | $ | 17.84 | | $ | 2.17 | |
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Total Per Square Foot | | $ | 26.93 | | $ | 49.52 | | $ | 30.40 | | $ | 39.90 | | $ | 36.69 | | $ | 56.61 | | $ | 61.73 | | $ | 5.46 | |
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Industrial / Flex Properties | | | | | | | | | | | | | | | | | | | | | | | | | |
Tenant Improvements | | $ | 1,850,812 | | $ | 1,249,200 | | $ | 310,522 | | $ | 112,781 | | $ | 880,829 | | $ | 250,250 | | $ | 0 | | $ | 250,250 | |
Per Square Foot Improved | | $ | 1.97 | | $ | 2.42 | | $ | 2.27 | | $ | 2.46 | | $ | 2.28 | | $ | 9.10 | | $ | 0.00 | | $ | 9.10 | |
Leasing Commissions | | $ | 890,688 | | $ | 574,256 | | $ | 508,198 | | $ | 65,740 | | $ | 509,720 | | $ | 77,688 | | $ | 0 | | $ | 77,688 | |
Per Square Foot Leased | | $ | 0.95 | | $ | 1.11 | | $ | 3.71 | | $ | 1.43 | | $ | 1.80 | | $ | 2.83 | | $ | 0.00 | | $ | 2.83 | |
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Total Per Square Foot | | $ | 2.92 | | $ | 3.53 | | $ | 5.98 | | $ | 3.89 | | $ | 4.08 | | $ | 11.93 | | $ | 0.00 | | $ | 11.93 | |
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| (1) | Excludes tenant improvements and leasing commissions related to a 163,880 square foot leasing transaction with Fuji Photo Film U.S.A. Leasing commissions on this transaction amounted to $5.33 per square foot and tenant improvement allowance amounted to $40.88 per square foot. |
| (2) | Excludes $15.5 million of tenant improvements and $2.2 million of leasing commissions related to a 121,108 square foot lease to Debevoise & Plimpton that was signed during the third quarter of 2003 with a lease commencement date in 2005. |
| (3) | 2003 numbers exclude tenant improvements of $0.2 million for Sandler O’Neil & Partners (7,446 square feet) for expansion space with a lease commencement date in the second quarter of 2004. The tenant improvement allowance is reflected in the 2004 numbers. |
| (4) | Excludes 86,800 square foot WestPoint Stevens early renewal. There were no tenant improvement or leasing costs associated with this transaction. Also excludes $1.4 million of tenant improvements and $1.2 million of leasing commissions related to a 74,293 square foot lease to Harper Collins Publishers with a lease commencement date in 2006. Also excludes Bank of America retail lease with $0.6 million of tenant improvements and $0.8 million of leasing commissions. |
| (5) | Excludes 133,727 square foot lease to National Hockey League at 1185 Avenue of the Americas. Tenant allowance was granted in the form of a rent concession for the deal. Also excludes leasing costs associated with a 6,712 square foot lease to National Hockey League at 1185 Avenue of the Americas. |
| (6) | Includes tenant improvements and leasing costs of $4.9 million and $1.2 million respectively for a 141,000 square foot lease to Quest Diagnostics at 3 Giralda Farms, Madison, NJ. We received a $10 million termination fee from Daiichi during the second quarter 2006 for these and other tenant related costs. |
As noted, incremental revenue-generating tenant improvement costs and leasing commissions are excluded from the tables previously set forth. The historical capital expenditures, tenant improvement costs and leasing commissions previously set forth are not necessarily indicative of future non-incremental revenue-generating capital expenditures or non-incremental revenue-generating tenant improvement costs and leasing commissions that may be incurred to retain revenues on leased space.
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The following table sets forth our components of paid or accrued non-incremental and incremental revenue-generating capital expenditures, tenant improvements and leasing costs for the periods presented as reported on our “Statements of Cash Flows – Investment Activities” contained in our consolidated financial statements (in thousands):
| | Nine months ended
September 30, | |
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Capital expenditures: | | | | | | | |
Non-incremental | | $ | 8,387 | | $ | 6,417 | |
Incremental | | | 8,220 | | | 7,805 | |
Tenant improvements: | | | | | | | |
Non-incremental | | | 17,299 | | | 29,022 | |
Incremental | | | 15,432 | | | 11,881 | |
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Additions to commercial real estate properties | | $ | 49,338 | | $ | 55,125 | |
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Leasing costs: | | | | | | | |
Non-incremental | | $ | 9,646 | | $ | 10,062 | |
Incremental | | | 6,350 | | | 5,528 | |
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Payment of deferred leasing costs | | $ | 15,996 | | $ | 15,590 | |
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Acquisitions and development costs | | $ | 41,602 | | $ | 660,040 | |
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The following table sets forth our lease expiration schedule, as adjusted for pre-leased space and inclusive of joint venture interests, at October 1, 2006 for our total portfolio of properties, our office portfolio and our flex portfolio:
Total Portfolio
Year of Expiration | | Number of
Leases
Expiring | | Square
Feet
Expiring | | Percentage of Total
Portfolio
Square Footage | | Cumulative
Percentage of Total
Portfolio Square Footage | |
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2006 | | 88 | | 394,756 | | 2.0 | % | 2.0 | % |
2007 | | 160 | | 1,448,096 | | 7.1 | % | 9.1 | % |
2008 | | 178 | | 1,355,455 | | 6.7 | % | 15.8 | % |
2009 | | 159 | | 1,452,432 | | 7.2 | % | 23.0 | % |
2010 | | 185 | | 2,173,704 | | 10.8 | % | 33.8 | % |
2011 and thereafter | | 578 | | 11,507,510 | | 57.0 | % | 90.8 | % |
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Total/Weighted Average | | 1,348 | | 18,331,953 | | 90.8 | % | | |
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Total Portfolio Square Feet | | | | 20,179,311 | | | | | |
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Office Portfolio
Year of Expiration | | Number of
Leases
Expiring | | Square
Feet
Expiring | | Percentage of Total
Office
Square Footage | | Cumulative
Percentage of Total
Portfolio Square Footage | |
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2006 | | 87 | | 386,197 | | 2.0 | % | 2.0 | % |
2007 | | 157 | | 1,395,574 | | 7.2 | % | 9.2 | % |
2008 | | 176 | | 1,323,212 | | 6.9 | % | 16.1 | % |
2009 | | 158 | | 1,407,451 | | 7.3 | % | 23.4 | % |
2010 | | 182 | | 1,918,008 | | 9.9 | % | 33.3 | % |
2011 and thereafter | | 569 | | 11,288,864 | | 58.4 | % | 91.7 | % |
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Total/Weighted Average | | 1,329 | | 17,719,306 | | 91.7 | % | | |
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Total Office Portfolio Square Feet | | | | 19,315,919 | | | | | |
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Flex Portfolio
Year of Expiration | | Number of
Leases
Expiring | | Square
Feet
Expiring | | Percentage of Total
Flex
Square Footage | | Cumulative
Percentage of Total
Portfolio Square Footage | |
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2006 | | 1 | | 8,559 | | 1.0 | % | 1.0 | % |
2007 | | 3 | | 52,522 | | 6.1 | % | 7.1 | % |
2008 | | 2 | | 32,243 | | 3.7 | % | 10.8 | % |
2009 | | 1 | | 44,981 | | 5.2 | % | 16.0 | % |
2010 | | 3 | | 255,696 | | 29.6 | % | 45.6 | % |
2011 and thereafter | | 9 | | 218,646 | | 25.4 | % | 71.0 | % |
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Total/Weighted Average | | 19 | | 612,647 | | 71.0 | % | | |
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Total Flex Portfolio Square Feet | | | | 863,392 | | | | | |
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PART II - OTHER INFORMATION
Since August 4, 2006, six purported class action lawsuits have been filed by alleged Reckson stockholders in Maryland state and New York state courts, seeking to enjoin the Merger and acquisition by the Asset Purchasing Venture (an entity of which Scott Rechler, Michael Maturo, Jason Barnett and Marathon Asset Management, LLC (“Marathon”) are members) of certain assets of Reckson: Sheldon Pittleman v. Reckson Associates Realty Corp. et al., No. 24-C-06-006323 (Circuit Court of Maryland, Baltimore City); John Borsch v. Scott H. Rechler et al., No. 24-C-06-006451 (Circuit Court of Maryland, Baltimore City); Mary Teitelbaum v. Reckson Associates Realty Corp. et al., No. 24-C-06-006937 (Circuit Court of Maryland, Baltimore City); Robert Lowinger v. Reckson Association Realty Corp. et al., No. 06-012524 (Supreme Court of the State of New York, Nassau County); Lawrence Lighter v. Scott H. Rechler et al., No. 06-CV-012738 (Supreme Court of the State of New York, Nassau County); and Pauline Phillips v. Scott H. Rechler et al., No. 06-12871 (Supreme Court of the State of New York, Nassau County). (As noted below, the Lighter action has since been re-filed in the Circuit Court of Maryland, Baltimore City.) The lawsuits also seek damages, attorneys’ fees and costs. The plaintiffs in these lawsuits allege that the Asset Purchasing Venture obtained SL Green’s agreement to sell Reckson assets on allegedly favorable terms to the Asset Purchasing Venture in exchange for the Reckson board’s approval of allegedly inadequate merger consideration. The plaintiffs assert claims of breach of fiduciary duty against Reckson and its directors, and, in the case of the Lowinger, Pittleman and Teitelbaum lawsuits, claims of aiding and abetting breach of fiduciary duty against SL Green.
On August 23, 2006, the plaintiff in the Lowinger action in New York state court applied for expedited discovery. Defendants opposed that application and moved to dismiss or stay the Lowinger action pending the determination of the actions filed in Maryland. On September 22, 2006, the New York state court issued an order scheduling discovery in the Lowinger action, while reserving decision on defendants’ motion to dismiss or stay. Discovery is now underway.
On September 6, 2006, the Maryland court consolidated the three actions pending before it under the caption In re Reckson Realty Corp. Shareholders’ Litigation, Consol. Case No. 24-C-06-006323 (Circuit Court of Maryland, Baltimore City). On September 8, 2006, the Maryland court ordered the parties to begin expedited discovery, which is now underway. On September 22, 2006, the plaintiffs in the Maryland consolidated action filed an amended complaint. In addition to the claims asserted in the three original Maryland complaints, the amended consolidated complaint asserts that Reckson and its directors breached a fiduciary duty of candor in connection with the preliminary proxy statement/prospectus filed on September 18, 2006. The amended consolidated complaint alleges that the preliminary proxy statement/prospectus failed to disclose adequate information concerning, among other things, the auction process that led to the proposed merger, the reasons why the Reckson directors believe the proposed merger is more favorable than other strategic alternatives for Reckson, the termination fee, the acquisition by the Asset Purchasing Venture of certain assets of Reckson, the assumptions employed by Goldman, Sachs & Co. (“Goldman Sachs”) and Greenhill & Co., LLC in rendering their respective fairness opinions, the terms of the retention agreement with Goldman Sachs, and Goldman Sachs’ prior relationships with Reckson or SL Green.
On October 3, 2006, the plaintiff in the Lighter action withdrew his lawsuit in the New York state court, and re-filed it in the Maryland Circuit Court for Baltimore City under Case No. 24-C-06-007940.
On October 6, 2006 an amended complaint was filed in the Lowinger action in New York state court. In addition to the defendants named and claims asserted in the original Lowinger complaint, the amended complaint names Jason Barnett, Marathon and the Asset Purchasing Venture as additional defendants. The amended complaint also asserts claims for breach of fiduciary duty against Mr. Barnett, and claims for aiding and abetting breach of fiduciary against Marathon and the Asset Purchasing Venture. The amended complaint also asserts that Reckson, its directors, and Mr. Barnett breached a fiduciary duty of candor in connection with the preliminary proxy statement/prospectus filed on September 18, 2006. The amended complaint alleges that the preliminary proxy statement/prospectus failed to disclose adequate information concerning, among other things, the bidding process that led to the proposed merger and acquisition by the Asset Purchasing Venture of certain assets of Reckson, the value of Reckson’s Long Island assets, the expected future value of the SL Green or the combined, post-merger entity and alleged material conflicts of interest allegedly suffered by certain parties and certain of their advisors.
On October 24, 2006, the New York state court denied defendants’ motion to dismiss or stay the Lowinger action and also denied the plaintiff’s motion for expedited discovery. On October 31, 2006, defendants removed the Lowinger action to the United States District Court for the Eastern District of New York.
On November 3, 2006, the plaintiff in the Phillips action pending in New York state court moved for a preliminary injunction, seeking to block the proposed Merger and the shareholder vote thereon and to require the Company to conduct an additional auction process for the assets to be acquired by the Asset Purchasing Venture. A hearing on the plaintiff’s preliminary injunction motion has been scheduled for November 16, 2006.
While these cases are in their early stages, defendants believe that the cases are without merit and intend to contest them vigorously.
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Except as provided above, we are not presently subject to any material litigation nor, to our knowledge, is any litigation threatened against us, other than routine actions for negligence or other claims and administrative proceedings arising in the ordinary course of business, some of which are expected to be covered by liability insurance and all of which collectively are not expected to have a material adverse effect on our liquidity, results of operations or business or financial condition.
There were no material changes to the Risk Factors disclosed in our annual report on Form 10-K for the year ended December 31, 2005 and on our quarterly reports on Form 10-Q for the quarterly periods ended March 31, 2006 and June 30, 2006.
Item 2. | Unregistered Sales of Equity Securities and Use of Proceeds - None |
Item 3. | Defaults Upon Senior Securities – None |
Item 4. | Submission of Matters to a Vote of Securities Holders - None |
Item 5. | Other information - None |
Exhibits | |
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31.1 | Certification of Scott H. Rechler, Chairman of the Board, Chief Executive Officer and Director of the Company, the sole general partner of the Registrant, pursuant to Rule 13a – 14(a) or Rule 15(d) – 14(a). |
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31.2 | Certification of Michael Maturo, President, Treasurer, Chief Financial Officer and Director of the Company, the sole general partner of the Registrant, pursuant to Rule 13a – 14(a) or Rule 15(d) – 14(a). |
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32.1 | Certification of Scott H. Rechler, Chairman of the Board, Chief Executive Officer and Director of the Company, the sole general partner of the Registrant, pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code. |
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32.2 | Certification of Michael Maturo, President, Treasurer, Chief Financial Officer and Director of the Company, the sole general partner of the Registrant, pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RECKSON OPERATING PARTNERSHIP, L.P. | | |
By: |
/s/ Scott H. Rechler
| | By: |
/s/ Michael Maturo
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Scott H. Rechler | | | Michael Maturo |
Chairman of the Board, Chief
Executive Officer and Director of Reckson Associates
Realty Corp., the sole general partner of the Registrant | | | President, Treasurer, Chief Financial Officer and Director of Reckson Associates Realty Corp., the sole general partner of the Registrant |
DATE: November 13, 2006
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