GYRODYNE CO OF AMERICA INC Item 1A Risk Factors An investment in the Companyapstas common stock involves various risks |
All investors should carefully consider the following risk factors in conjunction with the other information contained in this Annual Report before trading in the Companyapstas securities |
If any of these risks actually occur, the business, operating results, prospects and financial condition could be harmed |
RISKS ASSOCIATED WITH THE COMPANY &apos S REAL PROPERTY BUSINESS GENERALLY The Companyapstas real property business is subject to General Risks Associated With Ownership of Real Property for Investment The Company is subject to all of the risks inherent in investing in real estate, which may include, without limitation, neighborhood property values, general and local economic and social conditions, financial resources of tenants, vacancies, rent strikes, changes in tax, zoning, building, environmental and other applicable laws, federal and local rent control laws, real property tax rates, changes in interest rates and the availability of mortgage funds which may render the sale of properties difficult or unattractive |
Such risks also include fluctuations in occupancy rates, rent schedules and operating expenses which could adversely affect the value of our real property interests |
There can be no assurance of profitable operations from the ownership and management of the Companyapstas real property interests |
Illiquidity of real estate investments and the tax effect of dispositions could significantly impede the Companyapstas ability to sell assets or to respond to favorable or adverse changes in the performance of its property |
Because real estate investments are relatively illiquid, the Companyapstas ability to sell promptly all or any portion of its Flowerfield property in response to changing economic, financial and investment conditions may be limited |
The Company may sell some of its properties from time to time in the future |
However, the Company cannot predict whether it will be able to sell any property for the price or on the terms it sets, or whether any price or other terms offered by a prospective purchaser would be acceptable to the Company |
The Company also cannot predict the length of time needed to find a willing purchaser and to close the sale of a property |
Certain of the Companyapstas properties have low tax bases relative to their fair market value, and accordingly, the sale of such assets would generate significant gains which would generally be recognized for tax purposes unless the assets were sold under a non-recognition provision of the Code that allows a taxpayer, in effect, to defer the recognition of gain from a sale |
5 RISKS ASSOCIATED WITH THE COMPANY &apos S RENTAL PROPERTY OPERATIONS Costs of operating the Companyapstas properties can rise faster than its ability to increase rental income |
Costs of operating the Companyapstas properties, such as real estate taxes, utilities, insurance, maintenance and other costs, can rise faster than its ability to increase rental income |
While the Company does receive some additional rent from its tenants that is based on recovering a portion of the operating expenses, generally increased operating expenses will negatively impact the Companyapstas net operating income from the properties |
The Companyapstas revenues and expense recoveries are subject to leases and may not be quickly increased sufficient to recover an increase in operating costs and expenses |
As leases expire, the Company tries either to relet the space to the existing tenant or attract a new tenant to occupy the space |
In either case, the Company likely will incur significant costs in the process, including potentially substantial tenant improvement expense or lease incentives |
In addition, if market rents have declined since the time the expiring lease was executed, the terms of any new lease signed likely will not be as favorable to the Company as the terms of the expiring lease, thereby reducing the rental revenue earned from that space |
The profitability of the Companyapstas rental operations could be materially impacted by the financial health of the regional economy generally |
All of the Companyapstas rental properties are located on Long Island in St |
The concentration of all the Companyapstas rental properties in one location exposes it to greater economic risks than if it owned properties in several geographic regions |
The Company is susceptible to the potential for adverse developments in the Long Island economy (such as business layoffs or downsizing, industry slowdowns, relocations of businesses, changing demographics, increased telecommuting, infrastructure quality, New York state budgetary constraints and priorities, increases in real estate and other taxes, costs of complying with government regulations or increased regulation and other factors) and the national and New York regional office space market (such as oversupply of or reduced demand for office space) |
The State of New York in general, and Long Island in particular, is also generally regarded as more litigious and more highly regulated and taxed than many states, which may reduce demand for office space in New York |
Long Island is also characterized by a recognized shortage of affordable workforce housing, which could adversely impact the location decisions of businesses |
Any adverse economic or real estate developments on Long Island, or any decrease in demand for office space resulting from New Yorkapstas regulatory environment or business climate, could adversely impact the Companyapstas financial condition, results of operations, cash flow, and the per share trading price of its common stock |
The Company cannot assure you of the continued growth of the Long Island economy or the Companyapstas future growth rate |
The Company is subject to Federal, state and local laws and regulations that could impact its operations and profitability |
There are a number of government regulations, including zoning, tax and accessibility laws that apply to the ownership and operation of real estate properties |
Compliance with existing and newly adopted regulations may require the Company to incur significant costs on its properties |
Federal, state and local laws and regulations relating to the protection of the environment may require an owner or operator of real property to investigate and clean up hazardous or toxic substances or petroleum product releases at the property |
The clean up can be costly |
The presence of or failure to clean up contamination may adversely affect the Companyapstas ability to sell or lease a property or to borrow funds using a property as collateral |
The market for commercial rental space is highly competitive |
An oversupply of space in the Companyapstas geographic market would typically cause rental rates and occupancies to decline, making it more difficult for the Company to lease space at attractive rental rates |
In order to maintain the quality of its rental properties and successfully compete against other rental properties, the Company periodically spends money to maintain, repair and renovate its rental properties |
If the Companyapstas properties are not as attractive to tenants (in terms of rents, services, condition or location) as other properties that compete with it, the Company could lose tenants to those properties or receive lower rental rates |
RISKS ASSOCIATED WITH THE COMPANY &apos S INVESTMENT IN CALLERY-JUDGE GROVE, LP The Company owns a 10dtta93prca limited partnership interest in Callery-Judge Grove, LP, a New York limited partnership (the "e Partnership "e ), which owns a 3cmam500+ acre citrus grove located in Palm Beach County, Florida |
The property is the subject of a plan for a mixed use of residential, commercial, and industrial development which is under review by state and local municipal authorities |
The Company faces several risks inherent in ownership of a minority interest in a limited partnership |
Interests in the Partnership are not freely transferable |
They can only be assigned or transferred upon the terms and conditions set forth in the limited partnership agreement |
Those restrictions may at times preclude a transfer of the Companyapstas interest |
The Company may not transfer its interest without prior written notice to, and receiving consent, in writing and at the sole discretion, of the Partnershipapstas managing partner |
The transferee must also provide the Partnershipapstas general partner with an opinion of counsel that the transfer will not violate any securities, tax or other laws or rules and will not affect the tax status or treatment of the Partnership |
No public market for the Partnershipapstas interests exists or is contemplated in the foreseeable future |
Since limited partners do not participate in management of the Partnershipapstas business, the Company must rely on the Managing Partner to adequately manage the Partnershipapstas affairs |
The Company does not participate in the management or control of the Partnership or the conduct of its business |
The Company has only limited voting rights with respect to the Partnershipapstas affairs |
The Company must rely upon the fiduciary responsibility and judgment of the managing partner of the Partnership to manage the Partnershipapstas affairs in the best interests of the limited partners |
The Partnership may terminate early, which could disrupt the Companyapstas overall investment portfolio plan |
Unforeseen circumstances, including withdrawal of the Partnershipapstas general partner, could cause the Partnership to terminate prior to its stated termination date of October 14, 2019 |
Early termination of the Partnership could disrupt the Companyapstas overall investment portfolio plan |
RISKS ASSOCIATED WITH THE COMPANY &apos S INVESTMENT IN AGENCY HYBRID MORTGAGE-BACKED SECURITIES Changes in interest rates could negatively affect the value of the Companyapstas mortgage-backed securities, which could result in reduced earnings or losses and negatively affect the cash available for distribution to the Companyapstas shareholders under a REIT structure |
The Company invests in agency hybrid mortgage-backed securities and it currently intends to continue this investment strategy |
Despite Fannie Mae, Freddie Mac or Ginnie Mae guarantees of the mortgage-backed securities the Company owns, those guarantees do not protect the Company from declines in market value caused by changes in interest rates |
Declines in market value may ultimately reduce earnings or result in losses to the Company, which may negatively affect cash available for distribution to the shareholders under a REIT structure |
Market values of mortgage-backed securities may decline without any general increase in interest rates for a number of reasons, such as increases in defaults, increases in voluntary prepayments and widening of credit spreads |
Increased levels of prepayments from mortgage-backed securities may decrease the Companyapstas net interest income |
Pools of mortgage loans underlie the mortgage-backed securities that the Company acquires |
The Company generally receives payments from principal payments that are made on these underlying mortgage loans |
When borrowers prepay their mortgage loans faster than expected, this results in repayments of principal that are faster than expected on the mortgage-backed securities |
Faster than expected prepayments could harm the Companyapstas profitability |
Prepayment rates generally increase when interest rates fall and decrease when interest rates rise, but changes in prepayment rates are difficult to predict |
Prepayment rates also may be affected by conditions in the housing and financial markets, general economic conditions and the relative interest rates on fixed-rate and adjustable-rate mortgage loans |
While the Company seeks to minimize prepayment risk to the extent practical, in selecting investments the Company must balance prepayment risk against other risks and the potential returns of each investment |
No strategy can completely insulate the Company from prepayment risk |
RISKS RELATING TO THE COMPANY &apos S REAL ESTATE INVESTMENT TRUST (REIT) CONVERSION STRATEGY If the Company fails to qualify as a REIT or fails to remain qualified as a REIT, it will have reduced funds available for distribution to its shareholders and the Companyapstas income will be subject to taxation at regular corporate rates |
7 The Company may be unsuccessful in its efforts to qualify as a REIT The Companyapstas board of directors has authorized it to take the steps necessary to elect to be taxed as a REIT Currently, the Company plans on electing REIT status on December 31, 2006, effective as of May 1, 2006 |
There can be no assurance that the Company will be organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code of 1986, as amended, or the Code, or that the Companyapstas proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT Given the highly complex nature of the rules governing REITs, the ongoing importance of factual determinations, and the possibility of future changes in the Companyapstas circumstances, no assurance can be given that the Company will so qualify for any particular year |
The Company does not intend to request a ruling from the Internal Revenue Service as to its qualification as a REIT Furthermore, the Companyapstas qualification as a REIT will depend on its satisfaction of certain asset, income, organizational, distribution, shareholder ownership and other requirements on a continuing basis |
The Companyapstas ability to satisfy the asset tests will depend upon its analysis of the fair market values of its assets, some of which are not susceptible to a precise determination |
The Companyapstas compliance with the REIT income and quarterly asset requirements also depends upon its ability to manage successfully the composition of its income and assets on an ongoing basis |
The Companyapstas management team has never operated a REIT, which may result in additional administrative costs |
Although the Companyapstas management team has significant experience relating to the ownership and management of real property, no member of its management team has prior experience managing or operating a REIT The federal income tax laws impose numerous constraints on the operations of REITs |
The Companyapstas management teamapstas lack of experience in managing a portfolio of assets under such constraints may hinder its ability to manage the Company as a REIT successfully without the engagement of additional expertise |
In addition, maintaining the REIT qualification will limit the types of investments or business expansions the Company will be able to make |
Legislative or other actions affecting REITs could have a negative effect on the Companyapstas business and its stock price |
The rules dealing with federal income taxation are constantly under review by persons involved in the legislative process and by the IRS and the US Department of the Treasury |
Changes to the tax laws affecting REITs, which may have retroactive application, could adversely affect the Companyapstas investors or the Company |
The Company cannot predict how changes in the tax laws might affect its investors or the Company |
Accordingly, the Company cannot assure you that new legislation, Treasury regulations, administrative interpretations or court decisions will not significantly affect the Companyapstas ability to qualify as a REIT or the federal income tax consequences of such qualification |
Future acquisitions of properties may fail to perform in accordance with the Companyapstas expectations and may require development and renovation costs exceeding its estimates |
On March 27, 2006, the Company received payment from the State of New York in the amount of dlra26cmam315cmam000, which the Company had previously elected to accept as an advance payment for property condemned by the State University of New York |
See Note 18 to the consolidated financial statements |
The Company plans to invest these proceeds in securities and other assets, including real estate, consistent with its objective of qualifying as a REIT under the Internal Revenue Code of 1986 |
Changing market conditions may diminish the Companyapstas opportunities for making attractive investments |
Once made, the Companyapstas investments may fail to perform in accordance with its expectations |
RISKS ASSOCIATED WITH ANTITAKEOVER PROVISIONS Because provisions contained in New York law, the Companyapstas charter and shareholder rights plan may have an anti-takeover effect, investors may be prevented from receiving a "e control premium "e for their shares |
Provisions contained in the Companyapstas charter and shareholder rights plan as well as under New York Business Corporation Law may have anti-takeover effects that delay, defer or prevent a takeover attempt, and thereby prevent shareholders from receiving a "e control premium "e for their shares |
For example, these provisions may defer or prevent tender offers for the Companyapstas Common Stock or purchases of large blocks of its Common Stock, thus limiting the opportunities for its shareholders to receive a premium for their Common Stock over then-prevailing market prices |
These provisions include the following: o Staggered board |
The Companyapstas Board of Directors is divided into three classes |
As a result, each director generally serves for a three-year term |
This staggering of the Board may discourage offers for the Company or make an acquisition of the Company more difficult, even when an acquisition is in the best interest of its shareholders |
8 o New York anti-takeover statute |
Under New Yorkapstas anti-takeover statute, any person who acquires 20prca or more of the Companyapstas common stock is prohibited from engaging in a business combination with the Company for five years unless the Board has approved (i) the particular business combination or (ii) the stock purchase that put the shareholder over the 20prca threshold |
o Dilutive effect of shareholder rights plan |
The Company has in effect a shareholder rights plan, which is currently scheduled to expire on August 11, 2014, and is designed to deter a hostile takeover by increasing the takeover cost |
As a result, the plan could discourage offers for the Company or make an acquisition of the Company more difficult, even when an acquisition is in the best interest of its shareholders |
The rights plan should not interfere with any merger or other business combination the Board of Directors approves since the Company may generally terminate the plan at any time at nominal cost |